i'm pleased to be sitting with that nd set spetz we will give us a note when it's we understand you're keeping time as well and we'll well let you know if things are starting to go beyond the time allot unique case the questions here before the court i believe are whether or not the court has subject matter jurisdiction and whether or not if it does i stated a claim upon which relief can be granted are within the jurisdiction of this court and we have pled that there is a collective bargaining agreement the circumstances that give rise to the existence of a are as i said i think somewhat unique but the allegation is that there's a collective bargaining agreement and i think from the cases that i've read including cases decided here in the in this circuit it's mac sales as one an allegation that there is a collective bargaining agreement violation is enough to give subject matter jurisdiction so having the dysport create map trucks it it took the attitude that the national labor relations board said that it was not going to pay any attention to the allegation that there was a contract because of the disaffiliate and so it just said mattress didn't apply it didn't it didn't take any put any credence in the fact that we allege the contract violation let's talk about the sufficiency of the pleading for a moment if we could your allegations are factual allegations that is that there was an election and certified a new representative if we have to accept the allegations as true and then we look at the legal consequences of that factual allegations that would tell us that with a new certified representative the collective bargaining agreement alleged is void and as a result there would be no claim upon which relief could be granted tell me why i'm wrong well i'm going to say that you're wrong for two reasons your honor st of all the st factual allegation which comes before the question of the certification is that there was the members filed an r c petition that's right seeking an election and certification of the new bargaining representative they did not file and they see petition to amend the certification to reflect injunction forbidding anybody to do anything any officer to do anything that would thwart the cross trusteeship the decertification came from members who wanted to get the same result in effect circling around the petition don't you have to then accept the consequences that come from an r c petition which is basically the declaration that the previous contract is null and void well in ordinarily i would say you're correct but i have two responses to that st of at the option of the new union and the logic of that's pretty clear if you've got the same people running the same union under a different name why would the employer be permitted the same one now we want another go around and see if we can negotiate a new contract nothing has changed here it's not like the teamsters came in and dispossessed the utility workers well but again again that that that that creates an that creates an equivalence between an r c petition and an  ac petition based on in usual circumstances this case well i do have to disagree with your honor because we're not saying we don't want to be bound by what happens when an r c petition is file when an r c petition is filed the fifty's in the credentials sure it's gotten a case when they said look at change in arguing representatives and in the pradesh will case there were two different unions contesting with each other doesn't mean that the old contract is void if the new union wants to abide yes and no they decided that issue but there's never been a factual determination they basically said we don't want to hear the facts of this affiliation you filed in our sleep or to the case is closed and i think that a petition is are voluntary anyway but assuming that we had to do that we couldn't because there was a an injunction in place with the district court and with that injunction was only lifted after the r c petitions were filed a result so so let me just let me just get what your position is with respect to the june th two thousand and twenty n l r b decision i mean if that feels like that's a decision that could be appealed not really sure with the appeal time is for one of those my like probably would have passed i know that the in all the manual seems to suggest there's no appeal deadline for an r v decisions which is quite open ended but if this has i mean if you're telling us to ignore the hints it's certainly it this case is a weird miracle for us to pay no attention to this when this could have been appealed if this is a problem and  we can't give this final judgment treatment and if it's not a final judgment then probably it seems hard to give it any treatment at one level not maybe not collateral estoppel treatment or any other treatment if that's not a final judgment but isn't the appropriate circumstances kind of maybe week for that to be a final judgment and subject to appeal rather than us way in on that now today only to have us revisit it attention later if there is a later appeal i mean there's there seems to be some sort of comedy concern here that just flows out of as i understand it means you can decide the case even if another forum could also grant you that if the court decided to remain in this case and wait until the n l r b made a decision you know that that would not be an out of the box kind of a decision i think in this case though the facts of this case and the fact that the n l r b cessation in this case runs country please be contrary every other decision they made in a case where the facts are like this i think gives you the right to follow petition for review in the same issues will be from the court that's correct i guess the question is should they be decided now or should they be decided later but i understand your right to say wait a minute we're going to defer to the board and see where we go but you can have to revisit it any and what you undertake them you avoid the consequences of them when particularly those consequences are well established and and plainly a they prevent it from filing an ac petition i do not believe they were prevented from titian i think that goes to the appellate union s explanation that an injunction bar them from interfering with the trusteeship that the prior union had imposed  one and they have the option to do so certainly didn't take the position that they were prevented from the injunction from seeking to totally displace the prior incumbent union that the so called national petition to have an r v election and they must accept the consequences of that it should also be pointed out that the injunction of which they try to themselves used as a  explanation for for doing one thing but not another was a consent injunction further don't understand how you can explain away the consequences of your willingly entering advocating in court what ever appropriate legal remedies are available and arguments are available to them so while an injunction even a consent my arguably restrict day to day activities in terms of trying to undermine or replace that daily labor activities that the incumbent union might engage in the openness to the courts doesn't prove then a party from our viewing whatever positions of thinks in court or and here in the ministry of agency the n l r b are appropriate and to that issue also the n l r b has addressed that issue as well  frankly against the company saying that the trusteeship makes no difference they need to proceed forward because questions of employee representation are matters of significance that need to simple answer is no and let me explain why mack trucks is readily english civil in this case in several respects st there had not been repeated n l r b decisions already in that importantly most importantly mack trucks involved a simple on tricor principle of whether there was a meeting of the minds between the parties on an agreement that had been under negotiation to resolve disputes between the part over a plant closed down that the employer had announced and the simple question was did they reach a new agreement to deal with that that question resolved in determining that question did not require anything beyond simple meeting of the minds basic contra contract law principles what's  certification the oxy petition that occurred here though that the prior union contracts are no all and void that question of what the impact of an adult union election representation preceding by the n l r b means is a matter within the exclusive jurisdiction and the heart of the reason for the existence of the net and rb to determine who represents when you decide whether to leave it to the n l r b or not and match trucks was not unmindful of that gray area and i think it's a balancing test for example th can't can't can't can't just push back i mean you know we have the good fortune of having the author of mack trucks on this panel so so so it was so they would you have the added bonus of kind of what was thought of thirty plus years ago but i think one of the virtues of max trucks is that it didn't leave that much gray area we see if it is we take a survey of other circuits they wrestle with this question of kind of  circuits it seems to suggest at least as i read it that look concurrent jurisdiction is alive and well and i don't think it is and there's no kind of abstention reason it's separate an independent is a creature of circuit or supreme court law then we have concurrent jurisdiction and we can exercise that it strikes me that your best argument would be to to say do what other circuits do in kind of abstain or order for to the primary jurisdiction of the n l r b in these other instances but the beauty or at least that is i read and i going to temper my statements because its author is on this with me but is that it didn't take us down that road of of kind of that gray area of saying when when something goes to another circuit through kind of a quasi abstention doctor what do you think about that because other circuits ha should still prefer to the primary jurisdiction of the obvious for matters arguably subject to section seven or of the national labor relations act and a primary reason for this preemption doctrine is the need to avoid conflicting rules of substandard law in the labor elations area and the desirability of leaving the development of such rules to the ministry of agency who preceded by congress or this in mack trucks those issues were not front and center about representational matters whereas in this case the bihar of deciding whether the prior union contracts continue in effect is determined by the representational status of the union and it would again come back here that a key distinguishing feature present here or i got an election and got a certification which by longstanding labor law operate to unquestionably void the contract so if you get to that we have jurisdiction you still faced with the issue of labor law plainly says under these circumstances there is no contract and i were further say in making that decision about the that is a final decision that said specifically in the heart of that decision the so called directions of election that was contested and resulted in the appellants position being up held in an election being held determined and prevents and bars the unions claims here that it went through with this affiliation and is ace there for a successor union because a question of representation is mutually exclusive and incompatible with a disaffiliate in and successor status and the n l r b has already decided that question in those directions of election saying there is a labor law determination ship is not permissible instead the alternative option or case is that there's enough difference here that it creates a question of representation and because of that we have to have an election is  or it is that a question and i apologise but is that is that really a question for us you know it's safer if we if we have if he if we say we have jurisdiction isn't he is that the sort of thing that goes to remain in to the district court to kind of evaluate what the impact of the n l r b decision is on this case once we have jurisdiction because he if we find that we have that should we go forward or just go all the way and basically adopt the entire and all our be it your advocacy i guess to adopt the entire in rb decision and just say yeah there are six you know there's to solve the entire representation issue it's done i'm strongly in support of the latter because of the principle it's present in all these cases including mack trucks of avoiding conflict between the n l r b and district court when when that is a strong potential here i don't think you could have a stronger case for that problem here when the n l r b has repeatedly ruled that this is a different union there's a question of representation which is incompatible with  c petition to amend the existing sort of asian rather than the to assert itself as a new and different union and it didn't it is certain prevailed on its position that it was a new and different union and that triggered thirty eight years of clear and all  precedent that weapon that happens the labor contracts that were in effect with a prior union are null and void but i think an interest of judicial economy given the clarity of that principle precedent for thirty years and the clear problem not in not created in mack trucks that the already the livered n l r b decisions in multiple occasions judgment ruling the issues that remain in that case are whether the elint union engaged in unreasonable the lay in coming to the bargaining table so as to engage in bad bargaining so i have had conflicting wrist responses on the n l r b itself as to whether that decision is interlocutory or final and so rather than having to go through yet further litigation on this issue i don't think you need to assume or nor the other whichever way you go with it that and or be law it is still clear and plain that where as here you have an election based on a finding of a question the representation issue existed which is a matter within the core and prime or an exclusive jurisdiction of the n l r b mr brookes we didn't have the n l r b decision election the law gives us an outcome of what that means and we don't have you know we don't need to we can ignore the our beats decision to make and make a decision just applying good old fashioned well the six and the existing law right  in a word yes as long as you don't ignore which i think is the main flaw in the helen of briefs the existence and consequence of their going through and obtaining the n l r b election and certification the fact that they did that it can't be ignored and it has clear consequences those consequences being well established by labor law namely that the contract is no importance or no i don't think that you that i think the outcome would be the same my position is that the outcome here that the cops are not on board and the district court properly dismissed the case is even stronger because we have those additional  yes counsel let me ask you one other question before i see if my colleagues have other questions for you because your time is as not a bit longer your colleague mentioned a nd circuit haste i didn't catch the name being given that claims that they contain language that supports his position however that decision i submit is an outlier and an old no longer meaningful decision because it was rendered before the last thirty eight exist and then they also cited a decision of mulvaney mechanical that was vacated by the supreme court and the language that i think they take out of context wasn't in the  missions i just don't think it's any meaning and and it's attempt to if it refers back to abrams as this is a law of the nd circuit and said that nobody has given us any precedent saying otherwise why obviously at that point even though b decision of june th let's say that that proceeding runs its course would say there's an appeal that appeal would come to this circuit i believe in the company school and let's say this court on review wines for whatever reason does this is just dead wrong i mean again we would have that i guess you know some people could make that decision point rethink that it's dead wrong if that were to happen just accounting for that possibility it seems that if we were to act consistent with this decision now we would be taking to deal with that issue of so it would not be on unaddressed so whatever remedy was appropriate then the n l r b can provide it in that event secondly i submit that under the whatever harm the appellant union could claim has been following it by the prior n l r b decisions and the remedial power were addressed those and secondly i submit that while anything is a possibility i don't think that it is appropriate at this point to say that this or court decision was clearly wrong given the strength of the precedent that exists there  and and go on a distant potential problem possibility as a basis to incur yet more fees for a matter that's already been remitted gaited at some point there should be resolve and rest for a for the parties and not have to relive it gave the same issue over and over anything further counsel all right thank you very much we have counsel for the new number of a couple of things if the court please st of all i don't know whether it was mr brooks or one of the members of the panel said why didn't one of the members petition i'm not going to tell you that textbook authority on this but i don't think a member can file an ac petition i think that's something that has to be done by the union and the union didn't do it because there was an injunction in place and mr bro that injunction was a consented junction that's correct but it was a consent preliminary injunction and the reason for the consent st of all was that the national union took all of the locals money so nobody had any money at that point the fight along for track the litigation secondly i think the district court would probably have granted a preliminary injunction allowing the trusteeship to proceed but the preliminary injunction even a consent one doesn't resolve the issues and the national union withdrew its trustee case before there ever was a final hearing that anyone has that is to court to for a stay no that the withdrawal was a voluntary withdrawal by the plaintiff national union that we supported the r c petition filed by the members that's correct but ask yourself from a rational point of view if a member files an r c petition and he's a member of your union would you support it or would you oppose it and say no i think the that your court is not required to give deference to an agency's determination if it conflicts with other determinations of that agency and if the terminations in this case conflicts with the kravis case it conflicts with the case and there are no other cases where this situation arose where the union wants to keep the company or contract mr brooks can tended that the abrams cases fifty years old it shouldn't mulvaney court said that the mandatory arbitration provisions in the contract didn't apply even though the contract itself could have was assumable by the by the new union henri man the  circuit reaffirmed bits earlier decision so most veiny is in full force and effect now move anian abrams are the only cases in any circuit that deal with the exact question you have before they weren't concerned about the there's no contract so you know there there shouldn't be any any relief textron basically said that if mr brooks wants to plead no contract you have to do it as an affirmative defense to my complaint and again i think of probably use up can continue to keep the old contract if a thank you thank you both for your very helpful arguments in your briefing the court will take the matter under advisement