[00:00:04] Speaker 05:
Mr. Fox.

[00:00:05] Speaker 03:
Yes, may it please the court.

[00:00:08] Speaker 03:
My name is Gerard Fox and I represent Dorian King and 40 plaintiffs whose cases were dismissed.

[00:00:16] Speaker 03:
Most of them are here in this courtroom from all over the country.

[00:00:21] Speaker 03:
I want to make sure that I lay the foundation for what this case is really about and why other than the first cause of action is not a labor matter.

[00:00:33] Speaker 03:
The Guild does not employ its members.

[00:00:37] Speaker 03:
It signs them up by offering a membership agreement, which is alleged in each of the complaints, and they collect money in exchange for the promises under that membership agreement with each and every single plaintiff and member.

[00:00:55] Speaker 03:
That is no different than a country club that issues a membership agreement.

[00:00:58] Speaker 03:
It's a contract.

[00:01:00] Speaker 03:
It's a contract with a third party who is not an employee.

[00:01:03] Speaker 03:
This is not a grievance.

[00:01:04] Speaker 03:
This is not a strike.

[00:01:06] Speaker 03:
This is not a constitutional challenge to the provisions of the guild.

[00:01:11] Speaker 03:
The plaintiffs are radically, materially differently situated.

[00:01:16] Speaker 03:
Let me run you through a few.

[00:01:19] Speaker 03:
One had Graves condition.

[00:01:22] Speaker 03:
Was on medication so strong that a panel of doctors told her she could never get the shot.

[00:01:30] Speaker 03:
She was a very well-employed actress.

[00:01:35] Speaker 03:
She got a medical exemption.

[00:01:38] Speaker 03:
She contacted her local unit and local guild and then the national guild and received, and you'll see this in all of the complaints, read them please before you rule, every one of them.

[00:01:50] Speaker 03:
No response.

[00:01:52] Speaker 03:
None.

[00:01:54] Speaker 03:
None.

[00:01:55] Speaker 03:
Not we're going to intervene or

[00:01:58] Speaker 03:
We all know, by the way, shortly after COVID started, that people who had had the COVID vaccines were able to get COVID and pass it on to others.

[00:02:08] Speaker 03:
These right return to work agreements were mandatory vaccination provisions.

[00:02:13] Speaker 02:
Can you go back to where you began?

[00:02:16] Speaker 03:
Yes.

[00:02:16] Speaker 02:
I'm trying to figure out what you think the significance is of

[00:02:22] Speaker 02:
the arrangement between what we call the union, SAG, between SAG and its members.

[00:02:26] Speaker 02:
Do you think federal labor law doesn't apply?

[00:02:29] Speaker 03:
To a membership agreement sold to a third party who's not an employee, who's not on strike, who's not challenging the provisions of the bill?

[00:02:37] Speaker 02:
Did SAG negotiate the collective bargaining agreement on behalf of these people?

[00:02:41] Speaker 03:
Yes, it did, but the membership agreements are no different than any third party selling a membership agreement.

[00:02:47] Speaker 02:
So your position is that federal labor law doesn't apply at all?

[00:02:50] Speaker 03:
It doesn't apply to that claim, and it doesn't apply to... Why would it apply to your claim of fair representation?

[00:02:56] Speaker 03:
Well, that it does.

[00:02:57] Speaker 02:
So you'd like it to be a union for some purposes but not for others?

[00:03:01] Speaker 03:
No.

[00:03:01] Speaker 02:
There were state law claims that are purely... I'm asking you about the federal fair representation claim, which seems to me to arise from federal law governing labor unions and you're saying, well, it's a labor union for purposes of that... Let me finish.

[00:03:17] Speaker 02:
For purposes of that claim, but I don't want it to be a labor union for purposes of the other claim.

[00:03:23] Speaker 02:
So explain that to me.

[00:03:24] Speaker 03:
Your Honor, I file many claims for having a federal claim, and then I have state law claims.

[00:03:29] Speaker 03:
And they coexist in the law.

[00:03:31] Speaker 02:
Certainly they do.

[00:03:32] Speaker 02:
But what you're saying today that's unusual is that this is a union for federal purposes, but not for state law purposes.

[00:03:41] Speaker 02:
And so tell me what case supports that.

[00:03:43] Speaker 03:
There are numerous breaches.

[00:03:46] Speaker 03:
And I have in my briefs cited all of the provisions that state law claims are state law claims with their own statute of limitations.

[00:03:56] Speaker 03:
You can allege that under the representation of violation of 29 USC, section 159A, that they did not, they discriminated against it.

[00:04:10] Speaker 02:
We're missing each other.

[00:04:11] Speaker 02:
So let me try one more time.

[00:04:12] Speaker 02:
And then maybe we can just go on.

[00:04:15] Speaker 02:
The district court dismissed the state law claims because they thought they were preempted by federal labor law, which might well be the case if we're dealing with a union.

[00:04:30] Speaker 02:
But you're saying they're not preempted by federal labor law because this is not really a union, it's a contract relationship.

[00:04:37] Speaker 02:
And I'm saying, OK, then how do you get to bring a federal labor law claim based on it being a union?

[00:04:44] Speaker 02:
Can you have it both?

[00:04:45] Speaker 02:
Can you have it?

[00:04:46] Speaker 02:
I know there are separate claims, but the entity you're saying is a union for some purposes.

[00:04:52] Speaker 03:
Your Honor, no, we're not saying that.

[00:04:55] Speaker 02:
OK.

[00:04:55] Speaker 02:
You need to let me finish answering my question.

[00:04:57] Speaker 02:
Ask my questions before you answer them, because you might give the wrong answer.

[00:05:01] Speaker 02:
So tell me why you can be a union for some purposes and not others.

[00:05:06] Speaker 02:
for purposes of these claims.

[00:05:08] Speaker 03:
You can't be, but you can be a union that is sued under a fair representation claim because you're discriminating against all of those people who have exemptions that are not being honored by the production companies and you've done nothing to address it.

[00:05:25] Speaker 03:
Now, you can also be sued because the membership asked you to sign a membership agreement, a simple contract to pay dues and it has a completely separate set of promises that it makes to you as a member to collect those dues.

[00:05:46] Speaker 03:
And you sit there and you say, well, you've done nothing for me.

[00:05:49] Speaker 03:
You've breached that agreement and that's a contract.

[00:05:53] Speaker 03:
That's nothing other than a contract.

[00:05:55] Speaker 03:
I walk in, I say you want to become a member of this guild.

[00:05:58] Speaker 03:
Here's a membership agreement.

[00:05:59] Speaker 03:
Sign it.

[00:06:00] Speaker 03:
We make all these promises.

[00:06:01] Speaker 03:
We'll intervene in your career.

[00:06:03] Speaker 03:
We'll help you if you have a problem with the production company.

[00:06:05] Speaker 03:
We have alleged all of the promises made.

[00:06:08] Speaker 03:
And that's a contract.

[00:06:09] Speaker 03:
Now, that's very different.

[00:06:12] Speaker 03:
And we alleged a breach of that contract because it is a contract.

[00:06:17] Speaker 03:
And it is not anything other than a contract.

[00:06:20] Speaker 03:
And just because the guild enters into contracts for people to build a building for it, that's a contract.

[00:06:27] Speaker 03:
It's enforceable.

[00:06:28] Speaker 03:
The guild enters into agreements with vendors who provide all kinds of services.

[00:06:33] Speaker 03:
Those are contracts.

[00:06:34] Speaker 03:
They enter into agreements to collect money from their members and promise to do certain things.

[00:06:40] Speaker 03:
That's a contract, a contract.

[00:06:42] Speaker 03:
And they have a right to allege that that contract, separate and apart from their, you know, fair representation claim,

[00:06:50] Speaker 03:
And we're very clear in our pleadings that, you know, there are membership agreements at issue here, and then there's the separate federal claim.

[00:06:58] Speaker 03:
They breached that contract.

[00:07:00] Speaker 03:
We allege the provisions that were promised.

[00:07:02] Speaker 03:
And I believe, and I've practiced law for a long time, the law provides recourse for everyone.

[00:07:09] Speaker 03:
I am an actor, and I

[00:07:12] Speaker 03:
I have signed up and paid you money under a membership agreement where you say you'll intervene on my behalf and you will step in when I have a problem with my career, with the production companies.

[00:07:24] Speaker 03:
I have Graves' disease.

[00:07:26] Speaker 03:
I have one-head palsy's disease.

[00:07:28] Speaker 03:
One was recovering from cancer.

[00:07:31] Speaker 03:
This is my only way to support myself.

[00:07:34] Speaker 03:
The only way.

[00:07:36] Speaker 03:
get a medical exemption, it's not being honored by the production companies, and I ask you to help.

[00:07:43] Speaker 03:
And you don't, you not only don't help, you don't respond.

[00:07:47] Speaker 03:
Now, is the answer, oh, there is no recourse here.

[00:07:51] Speaker 02:
But isn't there a recourse under federal law?

[00:07:54] Speaker 02:
The claims are preempted by federal law.

[00:07:56] Speaker 02:
I disagree with you.

[00:07:57] Speaker 02:
Let me, again, let me finish the question before you answer it.

[00:08:01] Speaker 02:
The claims are preempted by federal law.

[00:08:04] Speaker 02:
You may well, you have a statute of limitations problem separately, but put that aside.

[00:08:09] Speaker 02:
Couldn't you have pursued those claims under the National Labor Relations Act as opposed to independent freestanding state law claims?

[00:08:19] Speaker 03:
Because I'm a good lawyer and that's a contract.

[00:08:22] Speaker 02:
I'll stipulate, go ahead.

[00:08:25] Speaker 03:
First of all, the statute of limitations for a breach of a written contract in the state of California is four years.

[00:08:32] Speaker 03:
And it's very convenient to just sweep up what are clearly state law claims and make them federal claims and give my clients... That wasn't my question.

[00:08:39] Speaker 02:
My question is, could you have pursued these, what we now call state law claims, under federal law, putting aside whether or not they were time barred?

[00:08:51] Speaker 03:
Not a breach of a membership agreement, because that is a simple contract.

[00:08:56] Speaker 03:
offered by the guild like it would offer somebody to build it and construct its premises.

[00:09:01] Speaker 03:
It's collecting money in exchange for separate promises that it makes to the member.

[00:09:07] Speaker 03:
And they pay considerable amounts of money under that contract.

[00:09:11] Speaker 03:
That is a contract.

[00:09:12] Speaker 03:
And it would not be a federal claim any more than a contract with the vendor would be a federal claim.

[00:09:19] Speaker 03:
You know, their contract is a contract claim.

[00:09:21] Speaker 03:
And we make that very clear.

[00:09:23] Speaker 03:
And the other issue is that these statutes all ran at different times.

[00:09:28] Speaker 03:
One of these complaints says that the federal vaccination policy for verification had been withdrawn, but the right to work agreement hadn't been withdrawn yet.

[00:09:41] Speaker 03:
And he lost a major job because he had a severe reaction to one of the boosters and couldn't take any more.

[00:09:48] Speaker 03:
Another person, you know, says that they,

[00:09:52] Speaker 03:
actually recovered from covid went to their doctor and they were told that they were immune for a period of time and not to get another shot because your immune system cannot take a shot when you already have immunity to wait a certain number of months he lost work went to the union no response that not everything

[00:10:13] Speaker 03:
That involves these guilds is a federal matter.

[00:10:17] Speaker 03:
Yes, we made a federal claim that they did not be discriminated against those people who had serious exemptions.

[00:10:23] Speaker 03:
They provided no help.

[00:10:25] Speaker 03:
They provided no input.

[00:10:26] Speaker 03:
They were never allowed to provide the input on these right to work agreements.

[00:10:29] Speaker 03:
And any time one person tried to come into the

[00:10:33] Speaker 03:
Board of Directors meetings and wasn't allowed.

[00:10:36] Speaker 03:
They've complained to their local union offices, to the federal offices, to the federal executives in that office.

[00:10:45] Speaker 03:
There was no response.

[00:10:46] Speaker 03:
And I don't, look, when your guild leaves you out in the cold at the most, and let's not just walk away from how difficult a period that was.

[00:10:55] Speaker 03:
Lawyers, right, got to work from home, remotely.

[00:10:58] Speaker 03:
Doctors wore masks.

[00:11:00] Speaker 03:
Accountants got to work from home.

[00:11:02] Speaker 03:
But these people lost all their income.

[00:11:05] Speaker 03:
Their lives were turned upside down.

[00:11:07] Speaker 03:
They went from losing their mortgages and their houses.

[00:11:11] Speaker 03:
And why?

[00:11:12] Speaker 03:
Why?

[00:11:12] Speaker 03:
Because they had Graves' disease, because they had palsy, because they already had recovered, and their doctor said, wait six months.

[00:11:19] Speaker 03:
And they went to their guild.

[00:11:21] Speaker 03:
One person had a blood clotting issue.

[00:11:23] Speaker 03:
And the guild doesn't even respond.

[00:11:26] Speaker 03:
Doesn't even respond.

[00:11:28] Speaker 03:
And why am I paying them dues if they're not responding under this contract I entered into with them?

[00:11:35] Speaker 05:
And because the contract, in your view, creates a duty on their part to fairly represent all of their members, right?

[00:11:43] Speaker 03:
Not fairly represent.

[00:11:44] Speaker 03:
The contract's pretty clear that they're to assist them with their career and interact with the production companies when there's an issue.

[00:11:50] Speaker 03:
That's what the contract says.

[00:11:52] Speaker 03:
That's why the guild exists.

[00:11:54] Speaker 05:
And how is that different from representing them as a labor union?

[00:12:01] Speaker 03:
Because this is not, they could have just said hey look if you join the guild it's all subject to some statutory provision.

[00:12:08] Speaker 05:
They offered membership agreements that offered very specific promises just like... Does federal preemption turn on... I've never thought that federal preemption turned on whether the contract says this is subject to federal law.

[00:12:21] Speaker 05:
It's subject to federal law whether they say it or not, right?

[00:12:23] Speaker 03:
A breach of contract claim on its face is not a federal claim.

[00:12:27] Speaker 03:
And I will stand on that.

[00:12:29] Speaker 03:
If you look at the agreements, the membership agreements,

[00:12:35] Speaker 03:
They are securing dues that are very significant and making promises under that contract.

[00:12:44] Speaker 03:
That is not a federal claim just because it's a federal guild.

[00:12:49] Speaker 03:
It is not.

[00:12:50] Speaker 03:
It just isn't.

[00:12:51] Speaker 03:
You can look at all the cases where a preemption applies, this is very different.

[00:12:55] Speaker 03:
This is somebody who signed a contract with the guild and said, hey, I'll pay you for what you're promising to do for me.

[00:13:02] Speaker 02:
But your claim at the end of the day

[00:13:05] Speaker 02:
phrased broadly is you did a terrible job under the contract.

[00:13:09] Speaker 02:
You didn't do what this contract required, right?

[00:13:11] Speaker 03:
My claim at the end of the day is that you breached the contract that I've paid you thousands of dollars.

[00:13:17] Speaker 02:
So your answer to my question is yes.

[00:13:18] Speaker 03:
Yes.

[00:13:21] Speaker 02:
To get back to Judge Miller's question, why isn't that a federal labor law claim?

[00:13:26] Speaker 02:
Because the contract is a contract to join a union.

[00:13:33] Speaker 03:
It's not a contract to join the union.

[00:13:36] Speaker 03:
It's a contract to be a member under conditions where promises are made and payments are made in exchange for those promises.

[00:13:45] Speaker 03:
You know, that contract is a contract that lives outside of the permutations of federal statutes and federal law.

[00:13:56] Speaker 03:
You know, you have a contract for your compensation.

[00:13:58] Speaker 03:
If someone doesn't pay you, is that a federal claim?

[00:14:00] Speaker 03:
No, it's not.

[00:14:01] Speaker 03:
So you cannot just say, because we're looking at this through the prism of a federal, and the guild, the guild is, the guild can be sued.

[00:14:10] Speaker 03:
It's not an extension of the federal government.

[00:14:12] Speaker 03:
It's just, it has, it does, it does put together agreements with production companies.

[00:14:17] Speaker 03:
It does negotiate on behalf of the whole union when there's a strike.

[00:14:22] Speaker 03:
It does do certain things of that sort that are covered by the labor law.

[00:14:25] Speaker 03:
But when I walk up and I say, hey, I'm an actor, you know, what are you going to do for me?

[00:14:31] Speaker 03:
Here, this is the things we're going to do.

[00:14:32] Speaker 03:
We're going to take a lot of money out of your earnings.

[00:14:35] Speaker 03:
And, you know, and I say at the end of the day, I got a contract.

[00:14:39] Speaker 03:
And this is what you're going to do for me.

[00:14:42] Speaker 03:
This isn't a strike.

[00:14:43] Speaker 03:
This isn't a constitutional challenge.

[00:14:47] Speaker 03:
And now I need you more than I have ever needed you.

[00:14:50] Speaker 03:
I have Graves condition.

[00:14:51] Speaker 03:
I have policies condition.

[00:14:52] Speaker 03:
I have blood clotting.

[00:14:54] Speaker 03:
I am recovering from cancer.

[00:14:56] Speaker 03:
I have a medical exemption that's not being honored by the production companies.

[00:15:00] Speaker 03:
And you have said, among the other things you do for my dues that I pay you, that you would intervene.

[00:15:06] Speaker 03:
You can file a grievance.

[00:15:08] Speaker 03:
Nope, you don't do that.

[00:15:10] Speaker 03:
And by the way, these statutes,

[00:15:13] Speaker 03:
even if you were just to talk about the federal claim that was brought, you have an individual who at the very end loses a significant film because they don't take the right to work agreement and withdraw it, which is mandatory vaccinations, when the federal policy is that that should no longer be the case.

[00:15:33] Speaker 05:
So you're now over your time, and I don't believe you reserved anything for rebuttal, but we will give you a minute for rebuttal.

[00:15:39] Speaker 05:
Thank you.

[00:15:48] Speaker 05:
As Demidovich.

[00:15:49] Speaker 01:
Good morning, Your Honors.

[00:15:50] Speaker 01:
May it please the court, Lisa Demidovich of Alshala Berzon LLP on behalf of Screen Actors Guild, American Federation of Television and Radio Artists.

[00:16:02] Speaker 01:
The key to this case is twofold.

[00:16:05] Speaker 01:
One is that

[00:16:06] Speaker 01:
The complaint is concerned about the union's, quote, support and defense of the COVID-19 mandate.

[00:16:15] Speaker 01:
That dates back many years prior to the first complaint being filed.

[00:16:19] Speaker 01:
It is clearly time barred.

[00:16:22] Speaker 01:
And all the state law cases are also time barred because they incorporate the same six-month statute of limitations.

[00:16:30] Speaker 02:
On the state law, did the district court dismiss the state law claims as time barred or as preempted?

[00:16:37] Speaker 02:
I believe it was both.

[00:16:39] Speaker 02:
So on the preemption side, you can see that the membership agreement is not a CBA.

[00:16:49] Speaker 02:
Page 45 of your brief, note 11.

[00:16:52] Speaker 01:
Okay.

[00:16:53] Speaker 02:
Good job.

[00:16:54] Speaker 02:
Okay.

[00:16:54] Speaker 02:
So if it's not, what kinds of claims can be brought under contract claims under the membership agreement that are not preempted?

[00:17:04] Speaker 01:
Well, we'd have to tie to language within the membership agreements.

[00:17:10] Speaker 02:
So for example, if somebody said, I paid my dues but you refuse to recognize me as a union member, would that be a non-preempted claim because it was brought under the contract and didn't require any interpretation of the CBA?

[00:17:26] Speaker 02:
Well, if someone, for example, wanted to go to a union meeting, is that what you mean by not recognizing... Well, I'm trying to figure out where the dividing line is between contract claims that are not preempted because the membership agreement is not a CBA and contract claims that are preempted because they're essentially

[00:17:47] Speaker 02:
they implicate the CBA and require interpretation of it.

[00:17:51] Speaker 01:
Where's the dividing line?

[00:17:52] Speaker 01:
An example of that would be ratification.

[00:17:55] Speaker 01:
Not all union contracts require ratification of collective bargaining agreement.

[00:17:59] Speaker 01:
Some do and some don't.

[00:18:04] Speaker 01:
And so if it's a union that actually requires ratification and the union did not submit it to ratification, then that union member would have

[00:18:12] Speaker 01:
a claim about ratification that another union member in a different union would have.

[00:18:17] Speaker 02:
So now turn to the claims that your friend brought in this case.

[00:18:21] Speaker 02:
Tell me why you think they fall on the preemption side of the line as opposed to the non-preemption side.

[00:18:29] Speaker 01:
Sure.

[00:18:29] Speaker 01:
Using his words, he twice said that the problem was that the union

[00:18:39] Speaker 01:
did not intervene when the employers were not honoring exemptions, so religious and medical exemptions.

[00:18:46] Speaker 01:
The problem is that the employers weren't honoring it and the union did not intervene.

[00:18:51] Speaker 01:
Well, which employer are we talking about?

[00:18:53] Speaker 01:
The union has 160,000 members and has contracts in the commercial space, in broadcast space, live TV, none of those... So if they specified the employer, would it be different?

[00:19:07] Speaker 01:
Yes, absolutely.

[00:19:08] Speaker 02:
So you think if the claim were paramount, I don't know, ABC, is not honoring exemptions, that would be a state law claim that is not preempted?

[00:19:19] Speaker 02:
No, no, I don't mean that at all.

[00:19:21] Speaker 02:
So tell me what distinguishes a preempted claim here from a non-preempted claim.

[00:19:30] Speaker 02:
In other words, part of your argument in this case is you should have pursued all these state law claims through the

[00:19:36] Speaker 02:
A different mechanism, not in court.

[00:19:38] Speaker 02:
They're preempted.

[00:19:39] Speaker 02:
You should have sought arbitration or gone to the appropriate federal agency and made a claim.

[00:19:46] Speaker 02:
But yet you say there are some claims under the CBA that are not preempted.

[00:19:50] Speaker 02:
And so I'm trying to figure out what the dividing line is.

[00:19:54] Speaker 02:
And when you say, well, there's a lot of employers, that can't be the dividing line, because if they voted against one, you'd still be arguing it was preempted.

[00:20:02] Speaker 02:
So tell me what the dividing line is.

[00:20:04] Speaker 01:
Sure.

[00:20:04] Speaker 01:
Well, first off, I did not mean to suggest that if there's a claim under a CBA that that's not preempted.

[00:20:09] Speaker 01:
I thought we were talking about the membership contract.

[00:20:11] Speaker 02:
No, we're talking about the membership agreement.

[00:20:14] Speaker 02:
A claim under the membership agreement, which is not a CBA,

[00:20:18] Speaker 02:
Now the question is, what kinds of claims under the membership agreement are non-preempted contract claims, and what kind of claims that they purport to bring under the membership agreement are preempted claims?

[00:20:31] Speaker 01:
Well, I can't think of a single claim within the complaint that would fall under a non-preempted claim.

[00:20:38] Speaker 01:
The essence of their complaint is that the union failed to intervene.

[00:20:43] Speaker 01:
Well, it's twofold.

[00:20:44] Speaker 01:
One is the negotiation back in 2021 that allowed for production by production.

[00:20:50] Speaker 01:
decision about them I thought that was part of their federal claim but maybe I'm right no but I'm just saying what what's the essence of what are we even looking at here that's one aspect and then the second aspect is the unions conduct in response after employers were not honoring exemptions

[00:21:07] Speaker 01:
for religious and medical reasons.

[00:21:10] Speaker 01:
And my point is that when that occurs, you have to look at who's the employer.

[00:21:15] Speaker 01:
Is this under the return to work agreements or are we talking about a commercial that would not even fall under this collective bargaining agreement?

[00:21:22] Speaker 01:
It would be a different agreement.

[00:21:24] Speaker 01:
So first, it is important just to understand the framework of who is the employer to see which contract it falls under because

[00:21:34] Speaker 01:
This contract that they're upset about the agreement and wanted there to be intervention and grievances is a specific contract that only some of the employers fall under.

[00:21:45] Speaker 01:
And then once you go there and you say, okay, yes, this is an employer that would fall under this agreement, what does the union owe to them?

[00:21:53] Speaker 01:
you have to look at that contract.

[00:21:56] Speaker 01:
And under the return to work agreements, the union specifically did not build in individual enforcement rights against the union.

[00:22:04] Speaker 01:
So under the Supreme Court's decision in Rawson, it is very clear that there is not a claim against the union for failing to respond and not intervene

[00:22:15] Speaker 01:
when the employers, most of which are unnamed and undated, fail to honor religious and medical exemptions.

[00:22:22] Speaker 02:
Let me try one more time on this, because I'm interested in the preemption aspect, not whether or not they actually stated a good claim.

[00:22:30] Speaker 02:
What should they have done with their state law claims?

[00:22:33] Speaker 02:
I know you think they fail.

[00:22:34] Speaker 02:
I'm not worried about that for the moment.

[00:22:37] Speaker 02:
But what the district court, in effect, said was you shouldn't have pursued them in court.

[00:22:41] Speaker 02:
You should have pursued them

[00:22:44] Speaker 02:
to statutory mechanisms or arbitration or something.

[00:22:48] Speaker 02:
What should they have done with their state law claims, in your view, recognizing that you don't think they're good claims?

[00:22:53] Speaker 02:
Or procedurally, where should they have brought them?

[00:22:59] Speaker 01:
I don't know the answer to that, because I do think that if the union breaches the duty, does not fairly represent, they should go into federal court or the National Labor Relations Board.

[00:23:11] Speaker 01:
That you've redressed it.

[00:23:11] Speaker 02:
They should have brought them as federal claims?

[00:23:14] Speaker 02:
and putting aside time bar or whatever.

[00:23:17] Speaker 02:
Is that the problem with this case, is that these claims were not denominated as federal claims?

[00:23:23] Speaker 01:
No, there's two full problems with the claims one is that they're time-barred, but I asked you to put that aside Yeah, you have to keep reminding me sure I mean, but that's a the elephant in the room But the second issue is that they don't they don't state a cause of action under the so just that is the cause of action is there in a secondary road that would allow for you to go forward when you

[00:23:47] Speaker 01:
You can't state a cause of action under the duty of fair representation.

[00:23:51] Speaker 01:
And the answer is no.

[00:23:52] Speaker 01:
There isn't an alternative route.

[00:23:55] Speaker 02:
One more attempt here.

[00:23:57] Speaker 02:
Preemption is a ruling by the court that you can't bring this claim in federal court.

[00:24:02] Speaker 02:
There's a statutory mechanism that requires you to pursue it somewhere else.

[00:24:08] Speaker 02:
Where should they have pursued it?

[00:24:13] Speaker 02:
You don't have to tell me again, it's a terrible claim and they lose under it and they can't.

[00:24:17] Speaker 02:
Where procedurally should they have pursued these state law claims if not in this action?

[00:24:26] Speaker 02:
Is there an arbitration mechanism?

[00:24:28] Speaker 02:
Is there a grievance mechanism?

[00:24:29] Speaker 01:
Well, not against the union.

[00:24:30] Speaker 01:
I mean, the arbitration mechanism is against the employer.

[00:24:34] Speaker 02:
I think what you're telling me is there's no place for them to pursue these claims?

[00:24:37] Speaker 01:
The essence of their complaint is a duty affair representation, that they feel that the union breached the duty affair representation.

[00:24:45] Speaker 02:
So they should have included these in their duty affair representation claim, which, if it had survived a limitations period, would have been adjudicated in federal court?

[00:24:54] Speaker 02:
Is that what you're saying?

[00:24:55] Speaker 01:
Right.

[00:24:55] Speaker 01:
And they would have failed also for failure to state a claim.

[00:24:58] Speaker 01:
But yes.

[00:24:59] Speaker 02:
No matter how many times I tell you, you can assume that.

[00:25:02] Speaker 02:
You keep reminding me about it.

[00:25:03] Speaker 02:
So you've reserved it.

[00:25:05] Speaker 02:
You don't need to say it again.

[00:25:07] Speaker 02:
Your view is that these are really part of their federal fare representation claim and are barred by limitations.

[00:25:14] Speaker 01:
That's correct.

[00:25:15] Speaker 02:
OK.

[00:25:15] Speaker 02:
Thank you.

[00:25:16] Speaker 01:
That's correct.

[00:25:17] Speaker 01:
I mean the union does not enforce every single federal and state labor and employment law.

[00:25:22] Speaker 01:
What the union does is it negotiates collective bargaining agreements and enforces those collective bargaining agreements and the standard in which the court reviews that is the duty of fair representation and the roadmap for that review was set out

[00:25:36] Speaker 01:
very cogently by a judge of Scanlon, the Demetrius case cited in our brief.

[00:25:41] Speaker 01:
You look to see whether it's arbitrary, discriminatory, or bad faith, and reviewing those factors here under the analysis set forth in Demetrius, it's very clear that there is not sufficient allegations to say that either the negotiation of the return to work agreement

[00:25:59] Speaker 01:
or the union's subsequent conduct violated that breach of the duty of fair rep.

[00:26:04] Speaker 01:
That you reconfigure that action as various causes of action, the courts, including the U.S.

[00:26:13] Speaker 01:
Supreme Court, have already said that that is preempted by 301 and DFR.

[00:26:18] Speaker 01:
You can't get around the fact that there is a six-month statute of limitation, and you can't get around the fact that the standard of review for the union's conduct is whether it was wholly irrational.

[00:26:32] Speaker 01:
It's a very deferential standard devised by the federal courts in reviewing union conduct.

[00:26:38] Speaker 01:
And one case not cited in our papers that I think is important for the court's consideration is Humphrey v. Moore.

[00:26:46] Speaker 01:
It's a 1964 Supreme Court decision, 375 U.S.

[00:26:49] Speaker 01:
335.

[00:26:51] Speaker 01:
And I want to point your attention to the concurrence in that case written by Justice Goldberg,

[00:26:58] Speaker 01:
and joined by Justice Brennan, the only two labor lawyers on the Supreme Court, who've been on the Supreme Court.

[00:27:05] Speaker 01:
And there, they talk about this tension that's presented in this case between the collective rights and the individual's rights.

[00:27:14] Speaker 01:
And there is a tension.

[00:27:15] Speaker 01:
In that case, it was seniority.

[00:27:18] Speaker 01:
Some people were going to lose jobs based on how the seniority ranking was done.

[00:27:23] Speaker 01:
And Justice Goldberg wrote,

[00:27:26] Speaker 01:
At page 358, the understandable desire to protect the individual should not emasculate the right to bargain by placing undue restraints upon the contracting parties.

[00:27:38] Speaker 01:
And he continues, trial hearing standards or conceptions of vested contractual rights

[00:27:45] Speaker 01:
Nor should trials, hearings, settings, or conceptions of vested contractual rights be applied so as to hinder the employer and the union in their joint endeavor to adapt the collective bargaining relationship to the exigencies of economic life.

[00:28:00] Speaker 01:
That's what happened here is tough circumstances.

[00:28:03] Speaker 01:
It's horrible the situations that the members faced.

[00:28:08] Speaker 01:
The employers had a legal obligation to honor medical and religious exemptions, but the complaint fails to state a claim and certainly isn't timely as... District court dismissed it for failure to state a claim?

[00:28:23] Speaker 01:
No, they did not.

[00:28:24] Speaker 02:
So you're asking us to affirm on a basis different than the district court?

[00:28:26] Speaker 01:
You could affirm on that basis and it would be grounded.

[00:28:28] Speaker 02:
I understand, but you're asking us to, aren't you?

[00:28:30] Speaker 01:
I mean, the union would like to be not out on a technicality, but to have it recognize that the conduct here did not breach its duty.

[00:28:40] Speaker 05:
But obviously, the more simplistic... You think the limitations period is a technicality?

[00:28:46] Speaker 01:
Well, it's an important principle of federal jurisprudence.

[00:28:52] Speaker 02:
I mean, if we thought this was a timely claim,

[00:28:57] Speaker 02:
wouldn't the appropriate thing to do to be sent back to the district court to figure out whether it states the claim?

[00:29:02] Speaker 02:
No, not under... Not briefed by the other side?

[00:29:06] Speaker 02:
Your briefing really doesn't address in any great detail this alternative mechanism.

[00:29:12] Speaker 02:
Why should we take it up for the first time on appeal?

[00:29:15] Speaker 01:
Well, you certainly- I know we can.

[00:29:17] Speaker 01:
We can do whatever we want.

[00:29:19] Speaker 01:
Right, right.

[00:29:20] Speaker 01:
You don't have to.

[00:29:21] Speaker 01:
You can certainly affirm on the basis of statute of limitations.

[00:29:23] Speaker 01:
But there is ample evidence in the record and review of the complaint.

[00:29:27] Speaker 01:
And following Judge O'Scalan's analysis in Demetrius and the Supreme Court's precedent in Rawson, certainly you could see that there is a failure to state a claim.

[00:29:36] Speaker 01:
And there's nothing in the briefing to suggest that there's additional facts that would allow for stating a federal claim against the union.

[00:29:48] Speaker 01:
There are no further questions.

[00:29:51] Speaker 01:
Thank you.

[00:29:54] Speaker 03:
Mr. Fox, rebuttal.

[00:29:56] Speaker 03:
I want to make a couple of very quick important points.

[00:29:58] Speaker 03:
First of all, not all the federal claims were time barred.

[00:30:02] Speaker 03:
And in fact, in court, the judge realized that the state law claims were filed before they were removed.

[00:30:08] Speaker 03:
And some of these claims arrived very late in the right to work agreement, like the person who lost a huge, huge film because the right to work agreement wasn't repealed quick enough.

[00:30:18] Speaker 03:
She made no findings, searched her opinion as to the 40 different claims and when they accrued, none, zero.

[00:30:26] Speaker 05:
Although... Do you have a theory of how any of them accrued?

[00:30:30] Speaker 05:
I had thought that the latest any of them could possibly have accrued was upon the expiration of the return to work agreement.

[00:30:39] Speaker 03:
Is that right?

[00:30:40] Speaker 03:
You have to have a claim has to be right, right?

[00:30:43] Speaker 03:
And so you have a right and the return to work agreement is in force.

[00:30:47] Speaker 03:
It's at the very end.

[00:30:49] Speaker 03:
The federal laws changed.

[00:30:51] Speaker 03:
He calls his guild.

[00:30:53] Speaker 03:
They breach their agreement, and they don't do anything.

[00:30:57] Speaker 05:
But the point is that you have to... Well, I'm sorry, but what... So did something happen after the expiration of the return to work agreement that would have caused the claims to accrue at a later date than that?

[00:31:09] Speaker 03:
Yeah.

[00:31:09] Speaker 03:
Well, he went back in and asked to be reinstated.

[00:31:12] Speaker 03:
He wasn't.

[00:31:14] Speaker 03:
any effort to assist him in this position.

[00:31:17] Speaker 05:
And what date was that?

[00:31:19] Speaker 05:
Because the return to work agreement expired.

[00:31:21] Speaker 03:
It's his complaint.

[00:31:22] Speaker 03:
And by the way, the complaints are very detailed.

[00:31:25] Speaker 05:
If you could just tell me what the date is, that would be helpful.

[00:31:27] Speaker 03:
I'd have to go back and pull 40 different complaints, but I'm going to tell you that there was no finding.

[00:31:33] Speaker 03:
So you're asking me to go back and pull 40 different complaints?

[00:31:35] Speaker 03:
I'm telling you, the judge, if she's going to dismiss these claims, she has to determine when they accrued and give the plaintiffs an opportunity.

[00:31:43] Speaker 03:
There should have been a right for leave to amend because if there's any question in her mind as to when they accrued, she should have allowed for that.

[00:31:48] Speaker 03:
Plus, many of these complaints do list the production company that is a signator with the guild, NBC Universal.

[00:31:58] Speaker 03:
They name them in the complaints.

[00:32:00] Speaker 03:
The complaints were disregarded.

[00:32:02] Speaker 03:
They were treated as though whatever

[00:32:04] Speaker 03:
The guild said the complaints were, is what they are.

[00:32:06] Speaker 03:
They're very detailed.

[00:32:07] Speaker 03:
In fact, the judge had us thin them down and consolidate them.

[00:32:12] Speaker 03:
There was never any right for leave to amend so she could figure out when a claim accrued.

[00:32:16] Speaker 00:
Counsel, on the leave to amend issue in your briefing, you do not cite to any specific allegation in any complaint or the record

[00:32:29] Speaker 00:
Or make any specific representation as to how you would amend the complaint to address any of these issues in terms of timeliness.

[00:32:38] Speaker 00:
So can you give me one specific example and show me and tell us where exactly in the complaint is and what you would do what you would allege differently to address the time.

[00:32:51] Speaker 03:
be very specific as to when each claim accrued.

[00:32:54] Speaker 00:
Give me one proffer, specific name and specific allegation that meets the pleading requirements under federal law.

[00:33:03] Speaker 03:
The person with Graves condition had their doctor's opinions for months and months and months.

[00:33:07] Speaker 03:
Finally she came to the guild and asked them to do something.

[00:33:11] Speaker 02:
On what date?

[00:33:13] Speaker 02:
Was it a date after Was it a date after the date that judge Miller see that's my clue That's my concern judge Miller says the agreement terminates on a certain date, but tell me what happened I'll let you answer, but you gotta let me finish tell me what happened on a date after that and

[00:33:38] Speaker 02:
that gave rise to a cruel of a claim.

[00:33:41] Speaker 02:
I know you can't give me a specific date, but you'll... So tell me what happened on a date after the end of the agreement that gave rise to a... Okay, you're gonna talk over me whenever it happens, so you just talk.

[00:33:54] Speaker ?:
I'm sorry.

[00:33:55] Speaker 03:
I didn't mean to.

[00:33:55] Speaker 03:
I have a breach of contract claim, and I believe that it is not a federal claim.

[00:34:00] Speaker 03:
And in the breach of contract claim, which is a four-year statute of limitations, but even if we're in the federal statute,

[00:34:06] Speaker 03:
If you read the complaints, you will see the same pattern.

[00:34:10] Speaker 03:
They asked at their local guild.

[00:34:12] Speaker 03:
Some of them went to the EEOC and let that play out.

[00:34:15] Speaker 03:
Some filed NLRB claims that were dismissed.

[00:34:19] Speaker 03:
Everyone sent them back to the guild.

[00:34:22] Speaker 03:
They would try to get an answer from the guild.

[00:34:24] Speaker 03:
The guild would ask for information.

[00:34:26] Speaker 03:
They never got a response.

[00:34:28] Speaker 03:
How long did that carry out?

[00:34:30] Speaker 03:
Well, for some of them, it carried out until shortly before they filed their complaints.

[00:34:33] Speaker 03:
The guild never got back to them.

[00:34:36] Speaker 03:
They're consistent in saying one thing.

[00:34:38] Speaker 03:
The guild gave no response.

[00:34:40] Speaker 03:
They didn't even say, she acknowledges that their exemption should have been honored.

[00:34:46] Speaker 03:
And so here you are with Graves condition or policy.

[00:34:49] Speaker 03:
You're going to lose all, all, all of your income because the production companies are not honoring your exemptions.

[00:34:56] Speaker 03:
And you go to your guild and they ask for information.

[00:34:59] Speaker 03:
You give it to them over a series of months.

[00:35:01] Speaker 03:
And then they ask you more questions.

[00:35:03] Speaker 03:
And then they never respond.

[00:35:05] Speaker 03:
Never.

[00:35:06] Speaker 03:
So when do you wake up and say, I have a claim here under my membership agreement?

[00:35:12] Speaker 03:
And actually, all of them that came in said, I pay all these dues.

[00:35:15] Speaker 03:
I sign a membership agreement.

[00:35:17] Speaker 03:
They're supposed to help me in these situations.

[00:35:19] Speaker 03:
Here I am.

[00:35:20] Speaker 03:
I've waited months or years.

[00:35:22] Speaker 03:
I've gone to the NLRB, I've gone to the EEOC, and I've been sent back here.

[00:35:27] Speaker 03:
Now I'm here, and I'm asking them for some help.

[00:35:30] Speaker 05:
And finally, I wanted to say... I think we understand your argument.

[00:35:37] Speaker 05:
Thank you, counsel.

[00:35:38] Speaker 05:
We thank both counsel for their arguments.

[00:35:40] Speaker 05:
The case is submitted.