it's present as an alter ego case but we don't have anything about alter ego in the case that's actually before you this is about a positive assurance test under the well worn doctrine of steelworkers so essentially what we have here is a case where the judge judge acosta dismissed this case because he could not find a decided that there was no interpretation of the of the grievance procedure in which under which he could find that it was appropriate to order arbitration that test is extremely lenient and this favorable towards finding arbitration this court and all the courts of this country find that arbitration is the preferred method for resolving these types of disputes if labor disputes absolutely and that the labor disputes are should go to arbitration and less there is no interpretation it's not susceptible to an interpretation the arbitration provision of the contract is interpretation that would result in finding that arbitrations appropriate that is an extremely low bar under which we should have been measured however the judge raised that bar impermissibly therefore that's what this appeal is about now i understand that there's a twist to it is added aspect in terms of a signatory and that but we believe this case is governed by mckinstry and make the mckinstry cases clear that where you have a party that is obtaining benefits under a contract under a collective bargaining agreement that that party is entitle to utilize the arbitration provisions mckinstry is clear that will let me ask you this what was the history prior  ing the arbitration process i think what defendant would argue as well it's not clear that they were invoking that on their own behalf or as an agent of the international so i think that's where the dispute is but quite honestly in the past history this issue has never come up where the employers said local forty are on whose behalf are you doing that are you doing it on your own behalf or otherwise and i think it's clear that there is that at least there's a susceptible interpretation that local forty was doing it on its own we have it has local forty ever arbitrated the case with the international union opposed arbitration i'm not aware of that i don't think the record reflects that that would be opposed or they would play due here they do not there is no i don't think there is any evidence that the international this is a very important point your honor because the local thirteen case which i think goes back to one thousand seven hundred one that was a case where the international was a defendant in that case that they were being sued under du here the international is was a non party to this and was taking no position in terms of the local proceeding wellman and of taking any position in this case but they seem to have settled out  dispute well respect i disagree because i think that that settle me agreement is extraordinarily clear with to the opposite conclusion that i think that that settlement that's a that's a memorandum of agreement a memorandum of agreement specifically references different locals and so and specifically reference as this very lawsuit but it also but it also says that the said that that ammo is on behalf of our members well it's certainly on behalf of all members of those locals and the international the international but it specifically i think you are your position that local forty is not a member of the international that is not my position but i am all that all of your members are members of the international that is absolutely true so on your own and you're only here in this court because of the membership of your members in the international absolutely but and you weren't in this your local was not in that underlying agreement it's only the international in the members it is only the international so we're talking about the memorandum that settled that that said we're not going to file any more cases relating to these locals and to the international you know the argument  back back at the beginning yeah you are coming into court is based on your membership arc our coming into court is based on there are several ways in which we are appropriate to bring the lawsuit one is that we are that we are part of the international as a member organization of the international another aspect is that the collective bargain agreement that we're here under refers to the  locals and then in addition to that we are vindicating the rights of members who are members of the local and who also happen to be members of the international so there's three different ways under which we get through the gates on that now the question i think that we're there's no question you look at that settlement agreement and that settlement agreement doesn't refer to us it explicitly excludes president listen it does not explicitly exclude you through new variation in does it mention you but it it's very clear that it's see on the one hand for one purpose is local forty is a member for other purposes it's not a member doesn't make any sense that they're going to go very far with me well i understand that but i think locals besides the three mentioned in the m o a n forty that are members of contracts with the p m a within p m a that are that are the clerks i i believe that this list is inclusive of everyone except for local forty now i'm going to be on the record here your honor so i buy and testing my own knowledge which probably has two to strike here is the rule for locals of the universal union the three mention and local forty that are members of a collective bargaining contract with p m a that is not accurate but what i would say is that the that are relevant to the issues that are presented in this collective bargaining agreement and to the them away so that they list the locals that are whose rights are being adjudicated let's say through this am away excluding the one local that has a has a pending lawsuit and refer to that pending lawsuit on the next page saying if that lawsuit is successful then this is how we're going to handle it so i think that for the belt and suspenders and then the new road it's it's certainly susceptible to interpretation both ways that look where if and we would not if they said local forty is if local forty was listed there and then they said and if for some reason local forty goes off and keeps going with this lawsuit then you're right there's no question that that would just be adult  exactly what we have is that that we have enumerated list here that's in which there is that someone's being left off that list this is again interpreted in the m o way but what about the general language of all our members the all all our members you know again we have here a a a balancing and this was a bench trial so the judge judge also was certainly entitled to weigh but what we also have is a positive assurance test that there has to be no interpretation of this this collective bargaining agreement and the m or m away that susceptible to an interpretation that would get us to an arbitrator that is the test it's not i don't have to win in terms of proving by preponderance of the evidence i have to be able to establish that there's an interpretation that gets me there that's for an arbitrator at that point that's why we should not have lost i had to not reserve at the beginning of my argument but i'll reserve the remainder but i'm glad to answer any further questions ok that's fine thank you s the issues that we're here today about is not about a parent corporation allegedly trying to unlawfully evade the contractual obligations of its defunct subsidiary where we're here today and at the heart of this matter is a local union that is trying to circumvent every which way but loose its international organisation who was the sole official party to the contract that the local is suing under your honour's as a matter of law they may disagree with the actions and decisions of the international but they're bound as a matter of law by those decisions and agreements that they make so here the district court correctly found again there is no local forty assign nowheres to the to the findings of fact only to three legal conclusions that the district court correctly found and concluded that local forty had under the of understanding but the contract that they're suing under to compel arbitration that local forty had no contractual right to i don't think we get to canons of construction today that's that somewhere down the road if there is ambiguous language here it's clear the parties explicitly in the parties being the international and the pacific maritime association they explicitly defined in the preamble who or the recital depending on how you couch to that is who the parties were  the analysis the contractual interpretation not only of local thirteen case that this court previously held a little bit different the context is different but it was still a contractual interpretation of not only who were the parties to the agreement annex the international not the local and the really and i'm going to quarrel with you on who the party ok my question was why aren't the third party beneficiaries well you don't they're probably you know they probably are third party beneficiaries right but their problem is is they're kind of stuck with that m o a yes right yes isn't that what the with the situation is here i for purposes of the agreement absolutely and it's in the record that they are members of the international there's no question about that they're bound as a matter of law by the agreements entered into the an international there were the ones who were doing the if you will grain handling at this facility you had to ship side work that's part of what local forty used to do and then you had the elevator type work but what was at the heart of those negotiations was that was the international previously had agreed with another competitor  we don't need super cargoes anymore that's was represented by local forty they're not needed in process and therefore e g t was allowed to no longer have to contract with a stupid or in company rather it allowed those green hand e g t originally to do that work themselves and they contract with the longshoreman the ultimately did in this case after a lengthy strike they agreed to contract with what's called the green handlers and it was a handful up and down the coast of elevator operators that they could do that ship paneling work the ship side work themselves without hiring a steward during company and there was no contractual acquirement to use what's called a supercargo or a clerk so when the memorandum of agreement though it's we're not talking about the members of those locals the international who was the sole party to the agreement that's being sued under you couldn't ask for more clear language in consideration for a number of things into separate agreement the capitol hill union which is the international and those three locals collectively capital lou union wait and release them insist charge the all of the employers collectively and individually from any and all claims that had arisen prior to this in the lawsuit had  were even if they were a third party beneficiary it didn't matter because ultimately it may be that sets if they if they did have third party beneficiaries to independently that's the key independently without the international is one of the things in the brief they talk about the side letter agreement yes what would we do in that it specifically excludes local forty from the i see no reading of that gets us to that point it's an acknowledgement that this lawsuit is pending the district court made findings that are uncontested about the context of what happened is that the international president said i don't know if we can control local forty anymore i don't know if they're going to or they're going to comply with the agreements that we just put pen to so it acknowledges what would happen if local forty was ultimately successful in gaining back that the international agreed no longer needed to be done here and that would be that local eight would lose a position to wrecked so you have a you know head busting between the international and local forty and local eight and local forty one last argument at that age but i'd like to make an absolute on what standard is here and in council would leave this court to believe that it's you know he's only got to come up with some interpretation whether it's reasonable or not i disagree with that analysis of what where we're here  it's crystal clear well established that arbitration is a matter of consent it's purely a contractual matter and so when the court is faced with a motion to compel there's a threshold judicial it's not for the arbitrator it's for a judicial inquiry on whether the parties agreed to arbitrate it's also clear including the case that council cited arbitration cannot be invoked by someone who is neither a party and doesn't otherwise possess the contractual right to do so so in this context local forty had the burden to show that the signator intended to give local forty an independent right to compel arbitration even if the international is not a party to it ultimately later express waived it so those are substantive issues not procedural arbitron realty for an arbitrator to to decide in what here is where i think on the third party beneficiary  to come back to that it's in the definitions of the parties and it's the international it's used as a capital you know and it's and councils already perceive conceded in his opening brief that in that grievance process the local x is an agent of the international so that it's even though the context from local thirteen case from number of years ago the legal context was somewhat different it's the same contractual interpretation that both based on the parties to the agreement and how the grievance in arbitration process works that it's the international who has the deciding factor on whether to go to arbitration or not not to low thank you your honor i again i just want to address one thing which is obviously i think that discussion here i agree that we're third party beneficiary i'm glad we have that common ground the question is going to be then in terms of the memorandum of agreement that memorandum of agreement the s e r the international itself saying we don't want to live that the same motives or same policy applies arbitron should control arbitration should control there it was a local trying to undo an arbitration that the international brought that is a very different set of facts here if it's susceptible to interpretation and the local that's trying to bring the case is up from the face of the contract at least going to receive a benefit which i think we're in agreement on that  the the local forty was going to receive a benefit from the collective bargaining agreement that was entered into on its behalf we meet the standard we meet the standard both in terms of the straight up question of arbitron military and whether we get in under we meet the standard under third party beneficiary we have a place that table the question i think was going to be then did the international somehow on our behalf on local forty behalf waive that right there is a question of waiver there is a question of intent to waive the rights of a local one would expect that law that local would be referenced in there in some way shape or form that's a question of contract interpretation but the overwhelming language within those memorandum members of the years what it means as members of the of the international that a reference to or in term example your local fourteen no more than if it had if one member if i'm an international member an individual member and columbia grain runs over you know an agent runs over my foot i don't think that the international had the ability to waive my claims against colombia grain i don't think colombia grain would be here today with against an individual member or something unrelated it relates to the interpretation of the settlement agreement and columbia grant is trying to say look this some agreement waived your right focal forty who were not allowed at that table and we're not party to that agreement somehow in the international way of those rights we don't think we can get us there at the very least