there's three basic squints that i want to make in this case that show that this arbitration award has to be enforced and the decision the district court reversed the first is that the college consented to the arbitrators jurisdiction to interpret the recognition clause and the scope of the bargain unit that's what the recognition clause covers is a lawful subject of bargaining second the arbitrator did nothing more than interpret that contract interpreted article one of the collective bargaining agreement and third the contract as interpreted by the arbitrator is lawful that is it doesn't violate any positive law and if we know anything about arbitration as a supreme court reminded us just last week that the overarching policy in favor of the finale of arbitration is that if the parties consent to arbitration if the arbitrator interprets the contract and if the contract as interpret analyzer be was interpreted the national labor relations act that would be one thing that is interesting to us through the case judge hamilton but here under this primary jurisdiction argument it's clear that the labor board wasn't exercising any primary jurisdiction was facts premise that the arbitrator's decision rested on a foundation of kind act interpretation while the director's tonight is simply fiction again record five ninety two and the district court said the n l r b has expressly rejected on the grounds of both contract interpretation and public policy that's a record five ninety five now if the regional director was exercising his primary jurisdiction over questions concerning representation something else would have happened we would have had a unique clarification it would have had an election ordered we would have had some change to the recognition clause language it would have had some change to the original scope of the unit that dates back to one thousand nine hundred eight we had none of those things instead what we had was a dismissal and remember how this case got to them nationally relations board was on a self determination election petition wasn't a unit clarification anything else self determination election edition and the result was that petition was dismissed your client was a party to the proceeding before the regional board oh that's an interesting question because it did have that right and we did file an appeal but in a doctrine that will be no doubt familiar to this court the labor board dismissed that appeal because it says you don't get to appeal reasoning you only get to  and because the outcome was exactly what my client sought a dismissal it dismissed the the appeal and that's where you get into this confusing stuff in the record about the position of the labor board who your honor is a party to this case they moved to intervene they were granted that leave to intervene and when they were in front of judge stark their attorney said that the labor board itself had not had cause to pass on the issue of the union inclusion so when you get to  that's important for a very specific reason it's important because what is the final order is the dismissal but what is not final is some and has no imprimatur of the final decision of administrative agency interpretating you know the scope of it's organic statute interest to by congress is whether these people are as a matter of contract law in this unit and along with that judge hamilton is the idea that the scope of the unit is a permissive subject of bargaining that is it is waffle for my client and the columbia college chicago to negotiate over the scope of the unit has expressed in their contractual recognition clause just as it is lawful for them to negotiate over other things such as wages such as benefits is just as lawful for them to negotiate over the scope of the unit and that's in one of the four cases that we've cited that have been gone undistinguished the tell it's case tell its current stance for the proposition that the concurrent jurisdiction of the labor board does not deny parties the right to arbitrate contractual disputes that may affect representation the hill around case your honor it's in hill round that this court summons circuit recognize that the scope of the unit is permissive lawful subject to bargaining third case it's gone undistinguished is the american postal workers case it's in the d c circuit case and it's circuit case a go along with it as say the arbitrators determination of the issue before him is given the same deference as any other contract interpretation he makes and the fourth  the h k porter case from the u s supreme court that tells the labor board it can't go in dictate the substantive outcome of collective bargaining agreements and that's exactly what the regional director tried to do in this case the parties had a contract that unequivocally based on their past practice excluded these employees they sought to be recognized in the unit and the c e o of the employer c e o wrote back saying you are not in this unit we won't recognize you and as in this unit and for whatever reason the region decided they didn't like that subset of contract outcome and they tried to bully and they tried to force the parties to put these employees into the unit and even more disturbing your honor why isn't the response to the deal to the board we did appeal to the board but they dismissed it because we can't appeal the reasoning now ultimately we've preserve that appeal for any future and enforcement actions against my client and subsequent on for labor practice prosecution so that issue is still preserved for appeal but and that administrative posture the labor board would not hear a challenge this to the reasoning that was inside the ruling because we could can't appeal the dismissal because that's what we sought and if you want to look for  your honor as you know there's just no precedent that anyone has cited and we asked the college to do this in our brief you said find this a precedent where the courts have deferred to a contract interpretation made by the regional director over a contract contract interpretation made by an arbitrator and if you have any question that the arbitrator wasn't given a contract interpretation please let me know if you have any question that the regional director was a contract which are pretty please let me know but the basis of judge starts ruling was clear that both those things were happening as i previously argued insight into record five ninety two and five ninety five the district court's decision was based on the idea that the regional director offered a contract and when you look at that decision at record five ninety five ninety one it's clear that the arbitrator was only engaged in a contract interpretation judge tarp wrote quote while the arbitrator certainly limited the rationale for his ruling to his interpretation of the contract a record five ninety he continued at record five ninety one and that is all the arbitrator did having to find the units to exclude f t s t the employees the many issues and complaints be fact that actually raising this credence representation among them were mo this just comes down to contract arbitration by an arbitrator the college unequivocally consented to and the arbitrators interpretation of article one the recognition clause that controls the scope of the unit they consented to that without objection as a result the arbitrator was acting within his authority to when he interpreted article one and said article one is ambiguous a look at your past practice under the past practice including the letter from the employer's own c e o saying that these people weren't in the unit and would not be recognized in the unit he interpreted article one to execute those people from the unit and when we look at the u s supreme court precedent eastern coal case and going backwards as still workers trilogy we know that an arbitrator's interpretation of a contract is the party's agreement because that's what they ask for they go to him for one thing and one thing only interpret our contract that's what the arbitrator did here and we interpreted the contract interpreted as executing these people when i look at this when i look at this case from kind of a credential perspective of arbitration and the public policy exception which i'll come to in a minute you honor is the only way to get around the arbitrator's decision is to say that the scope of the unit is an illegal subject of marketing and that just runs right against the heller case this court's precedent that says unit scope as a premise is subject to bargain being the employer and the union get to bargain over it not sure i accept the premise that or mr personally what's wrong with simply saying  unit and if there was a if there was an error and that the remedy is with the board rather than to dry and try and run through arbitration the aster that is consent to arbitration and permissive subject to bar and judge hamilton i'm sorry consent to arbitration and permissive subject to bargaining even if even if and i don't think he was but even if the regional director was acting within his authority to say who is in the unit right there in the manner in which he did and there's other ways you could do it waffling through unit clarification they can do that today they've refused to follow their own rules but even if he was acting wofully it would still be permissive for the parties to negotiate for a different outcome and that's what they did  arbitration rather than through an animal your collective bargaining and that's the importance of these trickle caisson supreme court judge when you come to public policy frank i think judge starr has a wonderful judge i think he dropped the ball on public policy because we know from isco w r grace in cases like that that say if you're going to reverse an arbitration award for public policy it basically has to violate some positive was espied a clear well defined dominant expression of law and that's just not what the what the district court pointed to the district court twenty two to think first in a force one of an arbitration award that purports to resolve representational issue consistently within an alert be ruling as a same representational issue bylines public policy because it infringes on the primary jurisdiction vested by the board in section nine well that's just not true because it's a subsequent agreement of the parties over a permissive subject of bargaining the second point is even further from public policy district court wrote it further violence public policy to force columbia college like a by requiring to comply with to irreconcilable orders that's not any statement positive law as it may be a statement of personal fairness but it's not a statement of any positive law that says violated by this contract as interpreted by  good morning please the court counsel let me just begin by pointing out i think as a starting point that this case involves three very well settled exceptions to the general principle that courts to for to arbitration award and judge starr in his decision below i think laid out those principles and i really don't think there's any disagreement about what they are but i think counsel really has put a spin on this and he's created several red herrings i believe but judge starr for example first found  that the arbitration award in this case directly conflicted with the decision that was made by the regional director later affirmed by the full board in washington when it the night the request for review and based upon the primary jurisdiction doctrine because the arbitration award conflicted with the decision made in the representation case that this disputed category of staff employees f p s t were and always had been part of the fact bargaining unit that because decide the representation issue and he thirdly found that the arbitration award violated public policy because it interfered with the primary jurisdiction of the labor force to digitally apply ockham's razor the public policy rationale that really doesn't seem to add anything to primary jurisdiction it really doesn't add anything i think those two are very closely related and then on those on the second rationale about what the parties have authorized yes arbitrators usually have a fair amount of discretion to kind of interpret the issues as framed for them by the person's right that is correct and if you know if you  third had been no board decision in this case with there really be anything to object to about the arbitrators award i think not so really down to just the primary jurisdiction rationale right well it but it still goes to the authority of the arbitrator and i don't think you can simply ignore you know the fact that the that the labor of court did make a decision in the representation case and in fact in the party submissions to the arbitrator first of all even though an arbitrator does have some latitude and discretion he is governed by what the parties submit to him and it was clear both in the grievance  and the briefing to the arbitrator that p fact expressly disavowed any intention whatsoever to have the arbitrator revisit that issue concerning the unit placement of the f t s t employees and it was very clear from the brace and in fact counsel represented that p fact would indeed abide by the decision of the n l r b regional director as long as it remained the ruling in the case and in fact when the labor board denied their request for review it wasn't a dismissal of an appeal it was a denial of the request for review and it's clear both under the late reports rules and regulation and under labor board case law as well as case law in this circuit that the effect of that and denial of that request for review was final and unrevealed and as a result the arbitrator simply could not ignore that decision regardless of what basis see used even if he was interpret in a contract the collective bargaining agreement and the regional director was doing something different doesn't make any difference how they got there the fact is that the labor i'm a ward made one decision in on the representation issue that t's were and always have been in the unit and in fact he also said that any agreement by the parties to the contrary would violate board cost council simply ignores that fact and in fact there was no agreement by the parties the status of these employees at all we've been the same that parties  unit description had been in place for years and never changed either before or after going to dish and i think the  concerning whether it's a permissive subject to bargain really has no relevance whatsoever well so also suppose instead of this arbitration going on while i'm in parallel with you know our b director decided to years ago but there's been a course of conduct and i think things have changed and he probable that no problem with that if in fact for example the party can show a change of circumstance because i think there would have to be some showing not simply just based upon pure passage of time but based upon a course of dealing or a change in duties or whatever that the facts and the circumstances were not the same as they were at the time the labor board made the representation fact there are really several different categories for example and this is i think spelled out in the record and in the regional directors situation but there is a category of full time staff who teach as part of their teaching of their staff responsibilities and it's clear with that category that they have always been excluded then there is this group that we're talking a i believe the record shows that there are somewhere between fifty and seventy five of them who are full time staff who teach park then there is yet another group of park kind staff who teach part time they've always always been in the young are represented by p five and there's never been an issue about them and really there's no difference whatsoever in terms of the at there's a difference in how they're selected and that's really what the distance the real dispute was or was supposed to be that was presented to the arbitrator it was certainly the college's understanding the dispute was whether or not the college violated the collective bargaining agreement by assigning the same seniority rights to this disputed i believe there was a slight misstatement i think it was actually a twelve day evidentiary hearing before the regional director complete record whereas the record in the arbitration proceeding it was based upon a stipulation that hearing and the regional director was exhaustive and he was in fact applying his statutory authority he was an interpretive contract in order to decide the issue in that representation case the petition for an election he had to decide whether or not this disputed category was in the  in order to determine whether the collective bargaining agreement barred a petition so when he made that decision he had to in order to carry out his statut responsibility to decide that representation case and when that happened and when the late full labor ward in washington that night p fax a request for review it appeal that became final and the intervening conflicting award from the arbitrator and by the way the labor board in washington they were aware  arbitrator's decision when they denied review because in fact it was the fact who called the labor board's attention to the arbitration award but that had no effect on the outcome the labor board tonight review that that was an affirm and it's of the regional directors decision so it was a final determination from the labor board and kerry versus westinghouse we think is the controlling authority both with respect to the issue about primary jurisdiction the fact that the labor force decision is superior to overrides the contrary arbitrators award and there's no dispute that that clearly they received entirely conflicting polar opposite results no question about that on the central issue and there was no way the college kids could comply with both and in terms of the public policy issue i think judge starr was a very very careful in his decision to make it clear that the policies at issue were the primary they all stemmed from the primary jurisdiction of the labor and that was central to his ruling both with respect to the first issue the fact that they conflicted and with respect to the third issue based on public policy and there's a line of cases from this court yellow freight being one of them that clearly followed that same principle that set forth in kerry versus westinghouse and i don't think pete fact has ever really explain good good morning in your honour's i'll tell you why those cases don't hold any water because in none of those cases did the company consent to arbitration over a permissive subject to bargain talk about kerry westinghouse actually compelled arbitration or talk about yellow freight yellow freight involved a proper exercise of the labor boards of primary jurisdiction because they had a unique clarification which never happened here the key holding in yellow freight was quote therefore we hold that the regional directors decision that the mechanics employed by yellow freight at the bedford park terminal do constitute a separate and distinct unit is sufficient to dispose of i n's credence to saying the regional director disposed of it he didn't dispose of it because they consented to a later in time arbitration carry the westinghouse as they talked about ordered arbitration advance cast stone there was a ten k hearing which resolves jurisdictional disputes between two unions and the employer contested arbit ability smith steelworkers be able smith the union sought direct review of agency action district court which there is no jurisdiction for and also the outcome was that the court refused to compel arbitration not reverse  arbitration local seven to ten b union tank car then rb how the union did not represent the workers and therefore the contract interpretation could not apply to them because they were strangers to the contract and local units your for there wasn't even in arbitration your hon i know so what's the employer supposed to do in the face of you know or be order in the orbiter issue or what they should have done is not agreed to submit to an arbitration of article one that's what they had to do no  what would they actually be i don't know and you know it's completely hypothetical what the labor board would have done if they had done that because going back to keep order what's clear to me is that the labor board refused to follow and refused to exercise its primary jurisdiction because if it was exercising its primary jurisdiction it would have taken the interveners who aren't here today the f t s t employees they would have taken them up on their motion to convert the self determination election petition to a unit clarification they would have had to have a unique clarification which would have been a proper exercise of its statutory authority it refused to do that it refused to order an election remember this judge me and these employees petition for itself to terminations election they were never given the opportunity to have an election to actually voice an opinion as to whether they wanted to be represented by keith that there was never an election that is a disturbing fact in a disturbing deviation from national labor law and i want to leave you with one last citation to a different provision flavor of what twenty nine u s c section one seventy three d states that the quote desirable method for resolving labor disputes is quote final adjustment by a method agreed upon by the parts that method and labor law is always