in this case under the railway labor act section there are three unique facts there's no contract in the record there's no management rights clause and there's if not a single contract in the record before this court you don't need one right i mean isn't the law clear that you don't need to be able to point specifically to a contract that a pattern and practice can you know reflect in agreement based upon the course of conduct between the parties you know it hasn't the supreme court said that at least parties this is the type of issue that becomes a minor dispute is reserved for arbitration rather than a potential for strict well one of the ways i would not wish that i was looking to this court's two thousand  contract nothing for them to do let's say that you up hold the district court and say the minors i don't know what contract i'm quoting to the arbitrator to interpret and if the arbitrator isn't interpret thank you good morning my name is and rothfuss i represent you pacific railroad company the district court's decision in this case involved a straightforward application of settled legal principles and it should be summarily affirmed the supreme court  have long held the practice is under a collective bargaining agreement may become an implied term of that agreement and that disputes over the scope of a railroad's authority to act in accordance with such an implied term are minor disputes subject to the exclusive jurisdiction of the national row or just me the only limitation on that is that the government's position has to be at least arguable and not frivolous the district court simply followed that well established precedent the union's contention that there is no agreement or no contract at issue here is untrue it defies comprehension fine frankly it's undisputed that you need pacific in the unions or parties as this court held in the previous discipline case multiple overlapping collective bargaining agreements and we submitted a declaration from brand inquest that described there are multiple collective bargaining agreements with these unions and the conrail case makes clear that a collective bargaining agreement covers the whole employment relationship so it's just simply not true that there is no contract to interpret the contract to interpret here is the collective agreements and whether those agreements include and imply term that has been established by the parties practice under those agreements it's well established both in conrail and in this court's prior precedent that that decision judge posner also said this when practices are normative when they create implied obligations under the collective bargaining agreements their interpretation falls under the sway of section three if that's referring to se labor for there is no general requirement that a collective bargaining agreement as distinct from agreements concerning dues and pension rights and right this court also said in brotherhood of maintenance  and found that that practice which the unions admit in their brief they have previously acquiesced in was sufficient to support an arguable basis for union pacific specifically the unions arguing that you can't look at past practice unless you can also identify a specific collective bargaining agreement and specific language that is somehow an ambiguous is simply not supported by any of the cases that have been decided under the railway labor act and discus in particular look at the congress decision from the supreme court and congress the parties collective bargaining agreement was not part of the record what was the agreement it had nothing to do with rule g g was not the parties that an implied term of the party's agreement allowed conrail some discretion in determining what it estan for so in one thousand nine hundred and eighty seven when conrail implemented its drug testing which is the same rule that was at issue and the norfolk and western case decided by this court when conrail instituted that the unions threw the flag and said wait a minute that's a different that's a completely different type of test that you're conducting and you're doing it for different purposes so we're not acquiescing in that but the the supreme court said oh ok but there doesn't need to be a specific agreement on the things that the union was objecting to like what about confidentiality what about the disciplinary aspects of this supreme court said that's all part of an argument you can present to the arbitrator about whether or not com or else determination of the scope of its discretion goes as far as it says it does that's the same issue here whether or not union pacific discretion to implement changes to its attendance policy extends to the point space policy that the union of jack's to in this case is an issue for the arbitrator to decide all this court needs to do and all that the district court needed to do was determine d whether we have at least an arguable basis for our position that the party's best practice has implied a term given union pacific some discretion enforce reasonable attendance the argument that past practice can only be used to address ambiguity that the unions rely on in their brief relies principally on a six circuit decision that was then distinguished by this court's decision a decision in the early a versus norfolk and western case where it said that that case stands for the unremarkable proposition that past practice cannot be used to contradict the plain terms of a collective bargain but in the court then went on to decide that past practice did support the the railroads argument that its practice of conducting medical examinations allowed it to institute a drug test on his part of those exams mr almost did find some did your adversary argue in the district court that it's subject to no agreement whatsoever  yes you're out of there and the court in its decision below rejected that argument yet it became because there are multiple agreements right that in the union in the company yes there are multiple agreement an implied term of those agreements allows the carrier discretion to set in force attendance and so my question is is there any factual dispute or was there one presented to the district court that there are multiple agreements between the union and the company yes your honor that was part of the declaration that was submitted from grant hank wist who described the parties collective bargaining relationship and then the practice there under of making of instituting and then making changes to the attend right that's what you submitted right or your client submitted yes or not ok was did your adversary did mr pursue not set forth evidence showing that that's false well no he submitted declarations from multiple general chairman saying that we bargain about things all the time and we've never bargained away our rights to protest your institution of attempted standards but the unions position on that practice has been to admit that it's occurred and in fact they have acquiesced in most of it and when they challenge what they've done to arbitration and lost so that's  minimal tipple changes the attendance policy over the course of more than twenty years and under the case law under the r l a that's more than enough to say that our position is arguably justified and that's why we need to decide  this doesn't decide the merits of that position the merits of that position get decided in arbitration the cases say that over and over and over again with that your honor i see my time's running short of that the only the only further point i would like to make is that the union's position in this case really makes the courts the forum of st resort when there are questions about the impact of pas practice under the party's collective bargaining agreements and that turns the arly scheme on its head the courts are supposed to be to the form of last resort and these types of disputes belong in arbitration before the national railroad adjustment board or a panel that's mr person you're still a mute the reasoning the legal reasoning that underpins the u s supreme court's decision in conrail it's not sufficient in my view for you to say that involves drug screening or physical examinations of employees and this involves an attendance policy the u s something court set forth an entirely legal framework and i don't know i don't know at all how you begin to was at least an arguable question about whether they're based on everything that happened with the practice or relevant to the change how is it that you know there is no contract provision relating to attend that's the  distinction i would make your honor and what i would point out is that this case prevents opportunities and whatever opinion you write i want you to really think of off and locations of how this will be a board by the broader and deeper community