it please the court i'm david dean with james and hofmann caring for the airport service workers and their union the appellant's these workers lost their union and their family health benefits when the employer purported to repudiate its collective bargaining agreement along with its agreed recognition clause of like to take a few minutes to talk about the status quo claims for years turn briefly to the interference cla and then deal with the statute of limitations issues i'm intending to reserve about three minutes for rebuttal simply put repudiation is not the way agreements are changed or terminated into the  railway labor act at the center of this case is i think the central purpose and policies of the railway labor act your right already had a collective bargaining it was a collective best they were under a collective they were about two years into  three year collective bargaining agreement and with an incorporated recognition clause the i think this court is well aware that the central purpose of the railway labor act is to prevent disruptions in ensuring stability of late edition's and it does that by essentially enshrining agreements so as recently noted by this court in the basic case lay prescribes a virtually endless process of negotiation mediation conciliation to resolve labor disputes and during that process it freezes agreed rates of pay rules and working conditions through its status quo provisions the employer here was a centrally looking for a loophole to be able to avoid that whole process in terminating and or changing or terminating its collective bargaining agreement and the lower court's ruling allowed it to with an itsy dixit declaration of a quote representation dispute unquote walk away from the collective bargaining agreement implement changed the terms and conditions and insulate itself from court review of its actions we submit that interpretation of section two ninth cannot be reconciled with the legislative intent and the historical context of the passage of the one nine hundred thirty four amendments of which section tonight was a part will recall the regulator act was passed in one thousand nine hundred six in the context of a heavily organized rail industry in one nine hundred thirty four there was a set of amendments passed which justice brennan discusses at some length in the i am v street case and summarizes as amendments that were intended to strengthen the position of unions these are the carriers the effect it recall now that the that all the unions that were operating in one nine hundred thirty four were doing so by virtue of voluntary recognitions the lower court's interpretation of sexed section two ninth would mean that the day after it was passed in one nine hundred thirty for every rail carrier in the country could have revoked its voluntary recognition either announcing some doubt about the continuing majority support or not and then unilaterally changed all of the terms and conditions in the agreements and the only remedy that the employees or the unions would have had is to start all over again by going back to the national mediation board where the board would have first defined bargaining units which would not necessarily have been the ones that had been defined by those by voluntary agreement since the board doesn't approve of those then certified unions and the unions would have had to start over again negotiating collective bargaining agreements and meanwhile the courts under section two seventh and one fifty six would have pat according to the lower court no subject matter jurisdiction to enjoin the status quo working conditions we so what would you have to prove to establish a violation that the carrier without following the processes of the act changed existing working conditions here while we what why do they have to maintain the status quo but is it that these several reasons they i mean the ease of the simple thing is that the union employer itself during the term of the c b s a is required to go through the one fifty six process if it wants to change terms and conditions so that begins with a quiz called one fifty six or section six notice by the employer here the local construed the december twenty nine letter as a section six notice that is an announcement of an intent to change the contract  one fifty six itself triggers a status quo requirement so our position would be that the that the formal status quo requirements were triggered by the december twenty nine letter and they  change the status quo in january or february in our position is that the status quo the the the harm the change that we are challenging  occurred the material breach from the locals perspective was the changing of wages and benefits in a moment going to happen february yet february ten i think the record reflects is the first time that the employees  received this or new wage scale new benefits and didn't end the obviously the carrier had done so without negotiating those with the union and therefore at that time so to speak operationalized the that the employer announcing a doubt about continuing majority support of the union created because it was a voluntary recognition created a representation dispute which was then committed to the national mediation board we think the lower court was essential he led astray by a line of cases that don't apply here for several reasons and that line of cases had come to court to try to enforce bargaining agreements in a context of corporate restructurings where the shape of the bargaining unit has a central change to include employees who had not either by sort of occasion or  position that the court did have subject matter jurisdiction because the status quo when the interference claims were implicated and could step in and result of that with an injunction despite the fact that there had been a the equivalent of a corporate restructuring in the sense that the airline there had formed a nonunion subsidiary and was transferred  not apply the statue of limitations to the jury to the stuck to the status quo click i i would technically i think that's probably because we're could be because the lower court felt it didn't have or analyzed that it did not have subject matter addressed action so yes so let me have you turned to the statue of limitations the the application for mediation didn't address the status quo claims right or it didn't it didn't seek to mediate interference claims well the interfere our view of interference play proved with the changing of the wages and benefits in february the mediation application was file the benefit of the doctrines of the union dues the doctrines the health there is help benefit deductions there's a dispute a factual dispute setting aside equitable tolling ok and whether that would apply it seems to me that there's a factual had already paid for january in terms of benefits that somehow the union was on you know that that it's any cause of action it had for a change in the status quo accru the union doesn't have any idea whether union dues were deducted or not deducted they our position is that it legally doesn't matter because the local union can't be charged with knowledge of it and we've cited cases to that  effect if they stop the ducking dues if employees were getting a little bit more money in january the union would not normally take that to be a material breach of the collective bargaining agreement the question for the local was did it receive these claims fall within the six months that's it i think rather than remaining it for the district court to do it in the first instance if you're focused if your focus is on the question of whether there was dues to duction i mean we don't oppose it status quo violation alleged violation i would say probably february tenth two thousand and twelve and that's because that's when the wages and benefits first change for the employees you always have that could correct and and here what happened is the employer announced that it was going to change the wages and benefits in february it didn't just make the announcement it had to factual predicates it said in the received the petition that showed lack of majority support and that there was a lack of an in to be certification the local construing this as a just a tory breach challenge both of those factual predicates immediately in an attempt to get the employer to change course so it filed with the mediation board and interestingly the employer although now it says that that was you know a non sequitur enough point at the time it fully participated in the and we didn't emphasize that point in the briefing it's an excerpt of record nine a one where we put in the mediation board record but so our position is we addressed the question of certification we were litigating exactly the same issues frankly that we're litigating now briefs were put in both sides were asking the mediation board to make a finding of fact about whether or not the union continued to be the representative which you essentially was forced to do because it will only take mediation applications from representatives it won't take them from just any entity or employee out the world and it took six months for it to do it i mean that that we handed them to try to get them to go ahead and make a decision i think they felt that it had been constrained you know to make it in the so you want to make it but they finally did make it in june and they docketed and they ordered the carrier  it should be told agreed with yeah i think i want to make one i want to make sure i understand one thing during that six month period yes there's nothing prevented you from going to district court though well i would  point to the basic bank decision and section eight of the norse the guardia act which required the local to exhaust available governmental machinery for mediation before the court would have had jurisdiction of the very injunctive claims that we're talking about under the status quo so i think the local was doing exactly what it was directed to do as clarified by  position it also says or you can't mediate how could you resolve this through discussion well in fact the parties entered discussions resolve the issues with a memorandum of agreement that was the  understand your argument on the coersion and interference claim as to when you're what your position is when that cause of action accrued yeah same as for status quo or yes they overlap we're challenging if you read the complaint in the case and again this is not a we've been charged with a kind of a post hoc reconstruction if the complaint in the case the interference claims in the case which were both the state interference in the federal interference focused on not coerced petitions they focused on withdrawal of recognition and change not honoring the terms and conditions in the collective bargaining agreement which is what happened in february now we think the the pre twenty twelve facts the twenty eleven facts do have a role in the case but what they are are at the denture e facts that show first the motive of the employer when to change the terms and conditions in february and we looked at the texas in new orleans case in one nine hundred thirty as a close analogy to that and we say that those facts should this court be inclined to change i would argue the basic policy of the act and provide some kind of loophole or exception to the processes that would focus on something like a good faith doubt about continuing majority status and there is a developed doctrine on that under the n r a if you were inclined to do that we would look directly to the twenty eleven what from my point of view are out of the ballpark facts in terms of the employer's involvement in this but if you focus on the fact that it created this these are petition it it made it available to the employees it collected it their way over the under any law in terms of that being some sort of showing of employee desires in terms of representation so we rebut good faith we show motive but that's the only relevance of the pre teen eleven facts  us the causes of action here when they started their activity could you have gone into court with did you do to stop the coercion i'd probably we've to be honest the facts as they come in through the employees are you know generally you get different reports from different people there were certainly two or three employees who were anti union and were out talking to people what the local did and again i would submit this is the appropriate response is not to run to court and file it to thirty fourth claim was even gauged on the ground to ensure that it kept the majority support of the employees no matter what the employer was doing and as a result of that was able to in september when this activity started and again we didn't know at the time that the command security board passed it as c r u initiative that was going to you know decertify the union no matter what the employees thought we  took seriously the idea that there were some dissatisfied employees and so we needed to go out there talk to the employees find out what the majority support was or wasn't and as a result was able to give a petition to the employer in september that showed overwhelming majority support for the union so that we again from our perspective rather than running to court on to third to fourth claim we dealt with that issue and in fact prevented the employer from ever collecting a majority of cards against the union which is presumably one reason that despite having promised the mayor to do so and told the trust fund that it was going to submit this petition to some neutral third party they were talking about a retired judge from  majority support that they were trying to predicate withdrawing recognition on again all of this led the union to believe that we could by negating these two factual predicates we could get them to reverse course and that when the mediation board told them to told really deals mostly with the status quo claims and that's the representational dispute issue and whether or not this is a representation of spirit or not the second deals with the fourth and fifth cause of action the six months although the statue of six months national imitations also applies to the status quo claims and i believe council was correct in that the district court never reached that issue because it found that it didn't have jurisdiction in the first place the it's a factual distinction your honor because in the in the trans america case what you had in that case was you had a situation where the company was trying to establish a separate nonunion company it was a certain trans america had there was no issue as to who represented the employees they had a certified union the teamsters i believe was the union was certified in the airline pilots trans america case the issue the central issue in that case was not whether or not it was not a representational dispute the central issue was whether or not they had violated the terms of the agreement and had the right to establish the separate nonunion company for different work so as the judge found in the district court case here the central issue of the entire issue really stems upon the finding by my clients as a result of the petition in december of two thousand and eleven whether or to the employers it was the employees signing a petition and deciding that they didn't want to be represented by the we can look at just the facts of that petition divorced from all of the alleged conduct that a current that led up to the  signing of that petition well there's no conclusion that that conduct was improper the the for whatever reason the union chose they had every right to go to court when all of this was happening to challenge this conduct there is a for good reason a six month statue of limitations they never they decided not to do that they had just the other remedy they had as they could have certified the union council talked about a vote before a retire judge or a vote before a vote before the los angeles council but the exclusion of remedy was for them to go to the n m d and ask for this vote if they had the votes why desire to join the union right back in two thousand and eight when it went back in two thousand and eight and and that's a proper way for a union to obtain recognition and if you know you know that represents the majority of employees and then sits down with the employer they work out a collective bargaining agreement  ht that's one way you don't that's one way of doing it and that's the way probably the majority of bargaining situations take place they don't run to the board to get sort of cation they do it this other way and it's just  costing them too much money more than they thought it would typified medical care for the employee and that what happened that's the  and so then the employer through its employees and now all these folks are there working comes and talks to them about why the union is not good for them and they can make more money if they get rid of the union so they go run have these cards signed up that's what happened right if they if they a ploy or has got a problem with a collective bargaining agreement and that has a the term along with what was the term of that are getting free but we have at the time the letters were sent that what the employer was was doing was undermining the union it had the employees there telling them if you got rid of the union we could pay you more money but what  was that a proper way to do it well in name i think the issue is whether or not it's a legal way to do that a legal way to do it yes because the union was not certified that the case law that we cited including the two unpublished cases the i am versus continental case other so in district of texas and they do case the central district case make it very clear those amendments got put in as counsel indicated earlier that if you as the union want to have the protections of the railway labor act the exclusive way to get those protections is to have go in and apply to be certified it doesn't have to be by a vote the terms allow for the m b to do an investigation and that it could be by vote it could be by way to certify a union is through a selection procedure or through the procedures of section two ninth so if you don't go through the procedures of section two ninth one fifty two ninth then you certainly as just bergersen indicated you can certainly recognize the union but it doesn't have the same the same effect as a certified union and to some extent i think that's the key i would refer you know if it's not certified by the board then as soon as the collective bargaining agreement is signed then the employer  start working on the employees in the way that dealt with the start convincing them right away that they don't want the union even though they've signed the cards accepting the unions that represent and that if they get rid of the union they can do much better together that's all right well no nothing no that's not ok if they're going about it in a way that is improper interference then the remedy is for the union to go to court but they certainly have the then nonce to the union that we're going to go in there you know you're not certified so whatever we can we're going to tell them we're going to give them more money we're going to get a better venice benefits because of medical care that in the collective bargaining agreement you know there's something about that with they're they're just going to go in there pull off a sneak attack is that what it says you know they're dealing with what this country's all about no you're on you want to go back to the to the days where where go see the widow give a fifty dollars and that was it no i don't go you worry about it with your kids and then get off the property because you're living it or if you want to go back to that i don't think that that's the case and i think a process that's taking a long long time and in this country going all the way back to the railroad strikes you know at the end of the at the end of the ninety's century  deb's and all the rest of them you know people trying to do something for these folks that worked as a railroad as this were where we got some protection for working people that point at that point and it did that in the december twenty nine and december thirty letters which may be given my time running out i can't answer the question yes so that when it brought them the petition because the union was not certified therefore it had the right to exercise if they wanted and they did not no longer recognize the union as the majority unlike the national labor relations act which has automatic looked at differently from the interference claims and with the status quo claim so let me address the cruel yes different exactly so let me look at let me start with the status quo claims ok as counsel said in one of the first things he said when he got up here he indicated that the union the local interpreted the letter as a change of status quo so that could has to be just from that statement that has to be when the status quo claims started to accrue the other thing is i don't think you can ignore when you see actually changes all the changes kick in immediately and let me explain why your honor because if you you cannot ignore the specific language of the collective bargaining agreement the language of the collective bargaining agreement in article one the very first article says that we will recognize the union that's a term of the actual agreement we will recognize the union so when you look at the letters that were  december twenty ninth and december two thirty if they say the twenty ninth letter says and i'm quoting we are here by withdrawing recognition from your union immediately the december thirty letter to the employee aviation safeguards withdraws all recognition withdraws not will withdraw not is going to withdraw and then they said that that they were going that they're going to immediately stop so it didn't say we're going to withdraw recognition we plan to with it said we are withdrawing recognition this is a term of the agreement that changes the status quo then because the status quo of the agreement requires in the market and they labor a piece of the marketplace and this is a common way that unions get recognized and then you're saying that the very next day the recognition is right but on january thirtieth we sent a letter indicating that just two arguments are to make to you our number one is on january thirtieth we sent a letter saying we're not willing to participate in the mediation not letters that number one number two is as i think your honor pointed out or indicated in a question that the very same case the trans america case indicates that they could have filed with the district court at any time mediation request well i it's why i don't understand how they could argue it's started later if they're if they're number one standing here and saying that the on one hand that the union interpreted this letter to be a change of status quo and then four days later or whenever they receive that within four two or three business days they're down claiming they want mediation for this then the claims obviously cruel the only way for to question other ways is the status quo obligation kick in as soon as get certified and that remedy existed at any time while before the agreement was finalized joining the term of the agreement or at any time after december thirtieth they could have gone down to the national  for the interference and portion yes so the status quo claims accrued in december the other claims accrued before that the claims of interference deal with the things that we've been talking about the discussions with the employees the hiring of the crews and associates that's what they were objecting to that's what the district court found in the summary judgment motion with the district court said the summary judgment motion and its ruling is correct and that is that all of all of those claims accrued before december thirtieth that's when the interference took place and as a result the stop a six month statute of limitations applies and the mediation had nothing to do with the interference claims that had to do with the status quo claims you know there's no procedure for mediating interference claims so it certainly when they acted as tolling and so filing your complaint july thirty one of two thousand and twelve summary judgment motions are not entered twined the ruling on the by the district court involved clearly leak totally legal issues on jurisdiction and statue imitations the issue on plaintiff's motion for s judgment involves factual issues and we would submit factual disputes many of the facts that came came in actually in supplemental pleading so if the court was to disagree with my argument we believe that the proper thing would be not to rule on the plaintiff summary judgment but to send it back to the district court for further proceedings thank you counsel thank you i'll give you a minute there's been a long session and we haven't one more case to go against and we need to understand moving along  want to do certain that were clear the i understood you to be asking me when did the status quo obligations attach which is different than when the status quo was violated the status quo obligation attached our position december twenty and thirty when effectively a notice under one fifty six was communicated by the employer saying i intend to change the terms in february it was violated when they changed the terms of venue wary without  having gone through the process these of the act so that they attach the obligation which changes the under transamerica well actually the initial i am below a decision again budget distinguish between when you violate a collective bargaining agreement that has to be adjudicated by a system board when you violate a status quo even though that is nothing but the terms of the collective bargaining agreement the court has  diction to adjudicate the violation and or damages so that's why it matters when the status quo obligation attached because but then the violation the cruel violation  pages thirty six and thirty seven to clarify that the obligations under two third to fourth one they apply certainly to a designated union and in fact  supreme court in due to be a v s the hell that they apply principly to employees before they certify union so there's no question that the that what the carrier was doing in twenty eleven was inappropriate we didn't sue over it we gauged it on the ground we resolved it through a process other than a court suit we got majority support from the employees we're asking the court here to return to the previous bute contract rights and the prescribed wages and benefits to enjoin the carrier to mediate with us in front of the board and let me i just have one last question for what for the