please the court ryan walsh on behalf of the state of wisconsin the question in this case is whether a proviso to an exception to a federal criminal bribery statute gives labor unions and right to work states a preemptive right to do district here georgia than our new district of indiana the district of arizona the eastern dick strict of oklahoma the eastern district of michigan that all seem to thing or not seem cheap but all think that c pack is still good law regarding preemption in this area are they all wrong they're all wrong a few of them did not consider the arguments we're making here one was an arbitration case for example but four or five of them are federal district court opinions only one is the united states court of appeals decision and in that case the sixth circuit was rather an enthusiastic about the fact that c pac appeared to conclusive there was a two page argument from the state in that case that seat back is no longer binding in light of subsequent doctrinal developments so yes you agree with the state's position you would need to create a shallow circuit split your honor but you know i'm not familiar with the term one to one ok but you know it seems that many of your cases about pretty and the high threshold requirement don't a  you know that these acts were intended to create a form of the in the labor laws two points your honor first the sea pack district court in one thousand nine hundred sixty nine relied on general obstacle preemption and conflict preemption those general preemption principles have been channeled into particular interpretations of the preemptive effect to the national labor relations act and the theft artley act that you mention but the question whether c packet still binding focuses on the opinion and the arguments in that case and with respect to that analysis we've explained that with respect to imply preemption for example the supreme court has drastically developed its jurisprudence with respect to that issue for example in one thousand nine hundred eight in the puerto rico case supreme court said for the first time that implied preemption is not a matter that turns entirely arguments based on legislative intent at some point or another the argument has to to the words of the allegedly federally preemptive statutes courts of the same thing in the c s x case five years later the this area of law has changed now i can elaborate on that further but i want to make sure i get to your second point which is what about preemption doctrines that have arisen with respect to the taft artley act there are three independent reasons why garman and machine is preemption are relevant to this case the first is section one sixty four b a plots in  is in agreement requiring membership and the supreme court said in retail clerks one that where one sixty four b appliance no other preemption doctrine can apply up second even if garmin and machine this preemption were implicated by this case those precedents recognize that states retain regulatory power over issues that can be the subject of bargaining one example is the sears vs san diego case in that case a state law said you can't trust pass here you can't pick it here but your right to pick it remains the right to pick it under federal law the analogy here is state law has said that check offs are permissible but check offs must be revocable within thirty days written notice impossible to agree to a check off that is not terminable within thirty days written notice but that's not a conflict europe it's obviously possible to come to comply with both wants all the one has to do is honor terminations of check off within thirty days written notice which is less than one year so literally under the terms of both statutes there is no impossibility conflict and my friends on the other side have not suggested that that it is impossible to comply with both l what should we make of the fact that an employee must make payment to the union for thirty days under the wisconsin law wisconsin preserves administrative convenience that comes with having some time after receiving the notice of revocation to then cancel the automatic dues payment no statute pursues its goals at all costs that wisconsin has made a determination that the employer and union are on notice they have thirty days to rectify the problem of the automatic check up and that's all in one sixty four gives states latitude they don't have to ban  every forced payment of every single penny to a union they can they have broad discretion in this area are they they can ban or regulate forced payments to unions at the end of the year one year i that thirty day whatever you want to call it refuse or whatever is it is honored would they have to renew that the following year would would another thirty day hittin or would that be go along with from year to year regardless of how the check authorization were written if an employee sent written notice of revocation that would have to be honored within thirty days in for a new truck up to be authorized the union employer would have to approach the employee and say how about this year would you sign one this year and the employee could say yes and if the employee said yes the employee would have thirty days once again to give written notice to terminate well what would happen in the for that thirty day period would they be a number of collective bargaining agreements had union security provisions such as an agency shop clause and dues checkoff provisions what happened was that the union security provisions were notified because act one applies to every collective bargaining agreement that's negotiated after act one but the check off did not go away that's what happened this afternoon she said in july oh wonderful i have this right not to support the labor union i wish to exercise that right and the union said well we will remove you from our formal list of union members but we will not terminate the membership but not that the chair well except membership under the national labor relations act is as this court put it in sweeney with with paying the union membership dues and the language of one hundred sixty four is you may enter into certain kinds of check outs for that as certain kinds of chekhov's are not throw any s if they forward a membership dues to the union so it's a perfectly coterminous relationship now returning to the question that your honor asked about the labor mate labor management relations act a third point is that from the very beginning of this case from the complaint on the sole question as the district court put it is not whether section one fifty seven section one fifty eight or section three one preempt act one in this case the question is whether  court today applying implied preemption jurisprudence as it exists today would not could not possibly reach that conclusion the sole basis for that conclusion by the sea pack district court was one snippet of legislative history  we not send you on your way to tell the supreme court they should overrule seabeck because the supreme court has has told lower courts repeatedly and i know many of these cases are confusing but they have told lower courts repeatedly that they are to look past summary affirm and says in always around circumstances we have here the well established machinist's doctrine of preemption we have a summary ruling by the supreme court over congress has not acted on the statutory question in the last forty seven years that seems like a pretty tough row to hoe at least outside of the supreme court itself well congress could well have reasons that see pat has no longer in date for example in communication workers of america versus back the law in this area substantially change and we're not arguing that only implied preemption change where our argument also that the understanding of one fifty eight and one sixty four and their use of the term membership has changed under current law as of one nine hundred eighty eight merely paying a in pro rata representation fees confers membership on the employee with respect to one fifty eight with respect to one sixty four as this court held in july and so that means that states now have power to ensure that employees don't have to choose between union support and going in losing their job so with respect the law has changed and so statutory started to start decisis doesn't have its bite in this context because it isn't clear that the federal district court's opinion in one nine hundred sixty nine here is not support federal district court opinion i'm glad you made that point the question is what did the supreme court necessarily decide well it's impossible to determine what they necessarily decided that they agree on obstacle preemption did they re on feel preemption maybe there wasn't a majority of justices on either point the point is where that's true and where especially doctrine doctrines have changed in the intervening forty six years in this case lower courts have an obligation to the field that we're looking at here is broader than that deuce checco office a matter that's related to wage is hours in and out there to her arms and conditions of employment me as i sit here with a lot more to think about you know yes on feel free and here with respect that's not the rule that congress codified in one sixty four b they said agreements requiring membership are up to the states to regulate or ban this is not a check off that goes hand in hand with a valid union security provision in states that don't have right to work and where unions can and do negotiate for collective bargaining agreements with agency shop provisions a check off or some other automatic system for paying union dues could make some sense after all unions employees in those cases have an obligation to support the union and to avoid being fired they might prefer the convenience of money taken from their check automatically without them having to remember to send a check every month but in states with right to work with employees who no longer wish to pay the union a single penny it's clear it doesn't take a cynic to recognize that an irrevocable check off is a union security device if it were not meant to bolster union security there would be no reason to make it a revocable how many states have the right to work twenty eight states around or no money did they have at the time see this sixteen i believe that's in the footnotes and sweeney i believe it's sixteen but it's union could not simply say that if unions are if your dues are going to be paid to be paid a year in advance any requirement to pay dues to a labor union is subject to one sixty four b and as this court held in july regulation of the duration of checkoff agreements is very clearly preempted under section three zero two c for the labor management relations act the supreme court's decision in c pack is binding and controlling on this court and as we've already discussed it's been supported by numerous other lower courts including three other circuit courts and district courts as well as the national labor relations board that decision and see it back at this one sentence saying that employs must be able to revamp their check of payment after a year at the latest support of a framework that is quote so pervasive or so dominant that congress left no room for the state supplement that is absolutely the situation in this case you're not just looking at section three o two you're also looking at the fact that check off provisions are negotiated as part of collective bargaining agreement between the union and the employer as such you  i'm not sure i understand your question i mean we might have lost the first few words i'm sorry let's let me think of why wouldn't it have said that it must be a year at the soon well i think and that precise issue is discussed by the us supreme court in the felter case which talked about a legislative history of the n r a and that provision in particular and making  choices i'm when the revocations could occur and so getting back to the point is that because dues check off or check off is something that  negotiated you look not at section three o two in isolation but you integrate that as part of the rest of the n r a including section eighty three which and also the provisions that talk about unfair labor practices under the n r a so for that the us supreme court has decided even leaving c pack to one side the u s supreme court has decided on multiple occasions for state regulation of collective bargaining agreement to avoid federal preemption it must fall within the scope of fourteen b and since negotiation checkoff is mandatory subject of collective bargaining agreement and has never ever been considered a union security device state regulation in that area is preempted by federal law but it's a prac as a practical matter how is it check off different from a union security device both require payment to the union for the period of time right but they both include money but the consequence of those two agreements is different a union security device requires membership upon pain of discharge that's what union security is that if you're not a member you can be fired a check off authorization does not do that a check off authorization in all situations is voluntary and it's revokable and employees cannot be fired for failing to sign a check off authorization nor can they be fired for she continues to pay you well and if you look at the language on the card itself it specifically explains this and this is something that the n l r b has discussed in cases like national oilwell that it is possible for members of the bargain unit continue to provide financial support to the union separate from union dues and on the authorization card that originally triggered this it makes that very very clear on that it says that the financial support that is being given to the union is not a quid pro quo for union membership so there is a distinction again between union security and dues check off and that is something that has been recognized by both the us supreme court in cases like felter in lower courts in cases like shannon mar and at the atlanta publishing case so that is something that has long standing and the notion that as supreme who or has he quoted the act of paying a union from representation with the status of membership no that's that's not what i said the supreme court in felt or specifically said that a union security device and a fused check off agreement are two separate and distinct agreements so that check off is not synonymous with union security and therefore does not fall within the scope of fourteen  collective bargaining agreements and there's an inherent tension between eighty three and section fourteen b which is the provision that allows states to vary that through so called right to work laws so the supreme court in the oil and chemical workers case from one nine hundred seventy six talked about that fact about that inherent tension between eighty three and fourteen being and specifically said that unless the state regulation is going to fall within the restrictions of fourteen b that that law is going to be preempted and it's going to be preempted because that's a subject for collective bargaining agreement now the state here has given short shrift to the san diego building trades worse is garmin garmin and i guess you could refer to it as garmin preemption talks about issues that are subject to collective bargaining agreements and that are subject to unfair labor practices are in the exclusive jurisdiction of the national labor relations board and regulation of those things is preempted and so under garman preemption it's very clear that the state cannot create new unfair labor practices other than those that are directly related to union security and the national labor relations board has uniformly in a wide range of cases including a recent case involving the same union isn't involved anyways and it's not involved in this case the issue is the preemption of the state law but my point here is you can't take that section three o two and read it out of read it in isolation out of where these check off agreements are arising from which is from collective bargaining with there's another sort of we want to call the words of that they called doctrinal changes things that happened this is mentioned earlier that there are twenty eight states that have a right to work laws that is it's a substantial number that you may call it conflict or there is tension and i think that's pretty accurate and this is one of those things where see packed is well i don't want to you know focus on it and diminish it further than it is but i think it diminishes it so way of this i think it's rarely narrow case and when you have a summary that just goes on up with a few sentences and that's it there's a whole lot of the things that have been going on in the meantime and i think even well we were into this about what recently happened about this very issue but there's still some some discussion about what those things may be rendered challengeable if not absolute a have not changed there have been no changes to that so the recent cases that the state is attempting to rely on are challenges to right to work laws they are not challenges to check off those are two separate and distinct concepts so when the state is relying on recent challenges such as sweeney and the challenges to wisconsin's right to work law that are still sort of working their way through the system those deal with union security they do not deal in any way with checkoff and so the decision from the six circuit last year involving this issue in hardin county kentucky specifically said that c packet still good law and swatted away any claim that there had been dark trying all developments in this area there have been no cases that are cited anywhere in the record or that we can find that have question in any way check  saying is it seems that there are a lot of things going on around the country really sure i'm going to raise these challenges but maybe here my point is even if you set c pack to one side you still have to contend with other supreme court cases such as garmin such as the oil and chemical workers i think there are other cases that talk about that unless it's a union security legislation that it's going to be preempted by the broad field privet preemption that's applied under the n r a kid and i think looking at those other a right because and i want to make the point is that the preemption doctrines under that and all are a and the alomar a are different than other types of preemption cases federal labor law has a very broad field preemption and it's always had a very very broad field preemption who that's who they prefer you want preemption and that's it next question yes and that's been that's covered in a wide range of cases has been recognized repeatedly by the u s supreme court talking about field preemption in this area so when you're talking about again negotiation of these check off agreements and those are things that are subject to bargaining things that are subject to bargaining are within the exclusive jurisdiction national labor relations board state regulation in this area is actually wanted and really the state has raised no substantive arguments that package wrongly decided without making or without trying to use union security and check off interchangeably in the law is very clear that those concepts are not interchangeable and have never been thank you your honor very briefly this discussion of what is a union security device has been in the clouds i'd like to bring it down to the real world one sixty four b says in a cream and requiring membership is what states have power to regulate at the time the taft artley ac passed commentators and many legislatures legislators widely regarded irrevocable check off as a form of union security agreement that's literally the language in the house report what about the maintenance of membership provision everyone agrees that's a union security device within one sixty four b a maintenance of membership provisions says that once you join the union you don't have to join the union but once you join the union you are required over the life of the collective bargaining agreement to pay it do this supreme court held that a maintenance of members