[00:00:02] Speaker 00: Case number 17-1790, Candace Murray at Elle Appellates versus Amalfi-Madden Transit Union. [00:00:09] Speaker 00: Mr. Everless for the appellates, and scream for the appellate. [00:00:30] Speaker 03: Good morning, Your Honors. [00:00:31] Speaker 03: May it please the Court [00:00:33] Speaker 03: The district court erred by holding that it lacked subject matter jurisdiction over plaintiff Murray's claims. [00:00:45] Speaker 03: It based that holding on its conclusion that certain federal regulatory language made the 2013 election and challenges to it and specifically [00:01:03] Speaker 03: my client's claims subject to Title IV of the LM RDA, or I'll refer to it as the Act. [00:01:13] Speaker 03: In fact, the regulatory language does state that to the extent that a non-covered local union, such as we indisputably have in this case, in the case of Local 1300, to the extent that the local participates [00:01:33] Speaker 03: in the election of delegates who, in turn, participate in a convention where officers of a covered international elect officers, to that extent, the provisions of Title IV of the Act apply. [00:01:49] Speaker 02: So if the ballot had said that, would the district court be correct then, in your view? [00:01:56] Speaker 03: No, Your Honor, because of the alternative argument we have that [00:02:02] Speaker 03: the district, as the district director best put it, in the letter, in response to the letter that we wrote, that the secretary would not, could not provide any relief with respect to the officer status of my clients or non-officer status after they were taken out of office. [00:02:26] Speaker 03: So specifically, [00:02:29] Speaker 03: District Director Wheeler said in response to an appointed letter that no, we could, if your clients were seeking to somehow overthrow the international election of officers, and if we determined that there was something wrong with the conferral of delegate status, [00:02:51] Speaker 03: then maybe we might get involved, but only then if we determined that it somehow had an effect on the overall officer election at the international level. [00:03:00] Speaker 03: Not the local. [00:03:01] Speaker 03: Not at the local level. [00:03:04] Speaker 04: It's pretty much agreed, though, that if the purpose in the election held by the local includes delegates to the international or to a union that has private and public, that that comes outside the exception and winds up [00:03:21] Speaker 04: where there is not jurisdiction. [00:03:22] Speaker 04: Am I correct on that? [00:03:24] Speaker 03: I'm not sure I understood the question, because outside the, this is the double. [00:03:28] Speaker 04: We're talking about the situation in which you have a union, a local, that is all government, no private. [00:03:36] Speaker 04: Therefore, it's not within the original section. [00:03:40] Speaker 04: It's not covered. [00:03:40] Speaker 04: But there is the exception thereto wherein if the local is electing delegates to a mixed international, [00:03:52] Speaker 04: It comes back out of that exception into the original exception, I guess. [00:03:55] Speaker 04: True, with respect to the conferral of delegate status. [00:03:59] Speaker 04: Now, are you not writing that out of the statute in your second argument? [00:04:05] Speaker 03: No, Your Honor. [00:04:06] Speaker 03: They're alternative arguments. [00:04:08] Speaker 04: So in other words, even if we were to... I'm talking about the alternative one. [00:04:10] Speaker 04: That's the one you came to when you were answering Judge Kavanaugh's question. [00:04:15] Speaker 04: If we accept that argument, aren't we writing it out of the statute? [00:04:20] Speaker 03: If we accept that [00:04:32] Speaker 03: No, not necessarily, because it's not a necessary argument for us to make. [00:04:37] Speaker 02: It seems like it's necessary, because you'd be saying the Secretary can't do anything about what happened at the local, and that would eliminate the exception that Judge said that we all agree exists. [00:04:49] Speaker 03: No, no, I don't think so, because let's say, for instance, that we're right on that [00:04:56] Speaker 03: In other words, that the Secretary Wheeler was right and that there was nothing they could do with respect to the conferral of officer status within Local 1300. [00:05:06] Speaker 03: Still, if my clients had wanted to go to the Secretary and complain that, [00:05:12] Speaker 03: Mr. Hanley, the ATU president, was wrongly elected, okay, because the delegate, that language didn't appear, that delegate phrase didn't appear on those ballots. [00:05:23] Speaker 03: And so, District Director Wheeler, we want you, there was a one vote difference, and so it did make a difference, so the delegate phrase wasn't there, [00:05:33] Speaker 03: The ATU itself did not seek these people as delegates. [00:05:36] Speaker 03: They enforced that specific language. [00:05:38] Speaker 03: So the answer, Your Honor, is no, it doesn't write it out. [00:05:40] Speaker 03: That language still very much has meaning. [00:05:43] Speaker 04: So you are going back to Judge Kavanaugh's original question then. [00:05:47] Speaker 04: If the language had been on the ballot, would the result be different, proper result be different than you say it is, with the language not being on the ballot? [00:05:59] Speaker 03: No, for instance, if the language had been on the ballot, I would still be here today saying... [00:06:07] Speaker 03: The language was on the ballot and they were properly elected as delegates. [00:06:13] Speaker 03: We're not challenging the international election, the election of Hanley, but still here we couldn't have gone to the Secretary under Secretary or District Director Wheeler's letter. [00:06:26] Speaker 03: We couldn't have gone to the Secretary because the Secretary has told us through District Director Wheeler [00:06:30] Speaker 03: I think the Secretary doesn't provide relief with respect to the conferral of officer status within the non-covered local. [00:06:37] Speaker 03: Can I talk about your first argument, then, a little bit? [00:06:40] Speaker 02: Sure, sure. [00:06:41] Speaker 02: Which is focused on the absence of the language on the ballot, as I understand it. [00:06:46] Speaker 02: Well, I think I put it second in the brief, but I can... Yeah, the first one you identified today. [00:06:50] Speaker 02: But anyway, why does that matter? [00:06:55] Speaker 02: In terms of the exception to the exception that we're talking about, why does the absence of the language on the ballot matter? [00:07:01] Speaker 02: They say, well, if you have a problem with that, you can file a complaint about the absence of the language on the ballot. [00:07:08] Speaker 02: But it is still an election where the election of the local is simultaneously going to mean that they're delegates to the international, and therefore it comes within Title IV. [00:07:21] Speaker 02: That's still true for purposes of the election. [00:07:25] Speaker 03: It would still be true if someone were trying to challenge the election of Hanley, but I would, we never intended to do that. [00:07:31] Speaker 03: We were only, so if the argument about district director Wheeler, if he was right and the court accepted that, I wouldn't, we wouldn't need, this is pure alternate argument. [00:07:44] Speaker 03: We would not need that argument. [00:07:46] Speaker 03: That's not to say that it wouldn't, that that [00:07:49] Speaker 03: If we were to complain or someone wanted hypothetically to complain about the election of Hanley at the international level, that delegate phrase of the presence or absence would still matter there, but that just wouldn't be this case because it's not why we came to Hanley. [00:08:06] Speaker 03: the district court in the first place, Your Honors. [00:08:09] Speaker 01: So your principal argument is which now? [00:08:11] Speaker 01: What's your principal argument? [00:08:12] Speaker 03: Well, you could, whether you, which one you call, which one I should have put first. [00:08:16] Speaker 01: Well, no, you tell me. [00:08:17] Speaker 03: Well, no, they're both, I think they're equally strong, Your Honor. [00:08:20] Speaker 03: They're equally strong reasons as to why this, the district court was wrong on the subject matter jurisdiction. [00:08:27] Speaker 03: So two independent arguments. [00:08:29] Speaker 03: Number one, [00:08:31] Speaker 03: District Director Wheeler expressly said that no, the Secretary will not, could not, will not even try to provide you, get you relief with respect to you being taken out of office at the local 1300 level. [00:08:47] Speaker 03: We do not have jurisdiction under Title IV to do that. [00:08:50] Speaker 03: Now, independent of that argument, the other argument is that [00:08:55] Speaker 03: Even if the district director Wheeler hadn't said that, even if we hadn't written to him, there's a whole separate reason why my clients or Ms. [00:09:05] Speaker 03: Murray could not have gone to the secretary for relief here because the delegate phrase was missing from the ballot. [00:09:15] Speaker 03: So it's an independent argument, Your Honor. [00:09:17] Speaker 03: So I'm hesitant to say one's primary or one's secondary because I think they're equally strong. [00:09:25] Speaker 04: letter from the district director actually make any difference? [00:09:29] Speaker 04: I mean, wouldn't we have to decide the same questions? [00:09:32] Speaker 03: You probably would, Your Honor, yes. [00:09:35] Speaker 04: I think we would, wouldn't we? [00:09:36] Speaker 04: I mean, you're not asserting that that's a Chevron-worthy interpretation of anything. [00:09:40] Speaker 03: No, I think that if you go back to the Supreme Court's decision in Skidmore back in, I think it was 1944, I think it was in 323 U.S., they said that even if you don't have, you know, the rulemaking promulgation and all that, that accompanies a federal regulation, still there can be deference. [00:09:58] Speaker 04: So this is a Skidmore argument then that you're making on that. [00:10:01] Speaker 03: With respect to district directors, yeah, in terms of the deference, it can still be accorded deference if it's well-reasoned and thoroughly reasoned, which we would submit it as, Your Honors. [00:10:12] Speaker 03: Did you say it skid more in your brief? [00:10:14] Speaker 03: No, I did not, Your Honor. [00:10:16] Speaker 03: I don't believe I did. [00:10:17] Speaker 03: Or have Ron or any other? [00:10:19] Speaker 03: No, I think we left it at, in preparing for this argument, I anticipated that somebody might ask me, [00:10:30] Speaker 03: What in the heck, why should we bother with district director Wheeler's letter? [00:10:35] Speaker 03: Why should we, you know, listen to him? [00:10:37] Speaker 04: There's a lot of things, Your Honor, I could do better. [00:10:46] Speaker 03: But in any event, I think it does make sense. [00:10:49] Speaker 03: Now, with respect to the other argument in our brief, Your Honor, it's about the summary judgment issue. [00:10:56] Speaker 03: Is there a position that [00:10:59] Speaker 03: Judge Bosberg, the district court, respectfully, erred in not granting summary judgment to both plaintiffs based on his decision that an issue of fact [00:11:12] Speaker 04: I'm a little concerned about why the second plaintiff is still here. [00:11:16] Speaker 04: Why are we hearing with respect to the second? [00:11:19] Speaker 03: Well, the second, you mean Mr. Queen? [00:11:21] Speaker 03: Yes. [00:11:22] Speaker 03: Okay, the reason we're here is because there was a trial, and that's why Your Honor is chasing the question, but if he were entitled to summary judgment, there was... If he were entitled to summary judgment, the summary judgment question has been mooted by the case being tried, hasn't it? [00:11:35] Speaker 03: No, no, because we're saying he should never have had to go to trial. [00:11:39] Speaker 04: He should never... We don't usually decide questions that are abstract. [00:11:43] Speaker 04: We have to have something in... This compares essentially to the Supreme Court's decisions dealing with the front-of-face case in the employment context, where you don't look to see if the trial court erred on the proof of face of determination if the case went on trial. [00:11:58] Speaker 04: It's been washed up. [00:12:00] Speaker 04: I'll tell you why it doesn't... Why hasn't it been washed out here? [00:12:03] Speaker 04: I'll tell you why I... The point in summary judgment proceedings is, should the case, is the case stoked [00:12:09] Speaker 04: decidable on the record that it doesn't go to trial. [00:12:12] Speaker 04: Judge says, no, it goes to trial. [00:12:15] Speaker 04: If you'd ruled the other way, all you got is a trial. [00:12:19] Speaker 04: I mean, I don't see that this case is still alive. [00:12:23] Speaker 03: No, no, we're saying on liability we were entitled to summary judgment. [00:12:27] Speaker 03: And in the appointment... Well, the trial ruled against you. [00:12:30] Speaker 04: I don't find in your brief an assertion of error in the trial. [00:12:34] Speaker 03: No, we're saying that the error occurred before the trial. [00:12:38] Speaker 04: You lost this case at trial. [00:12:40] Speaker 03: With respect to Queen. [00:12:41] Speaker 04: Well, you could have or not, but you lost it. [00:12:43] Speaker 04: No. [00:12:43] Speaker 04: See how you can possibly go back and say summary judgment should have been decided the other way. [00:12:49] Speaker 04: It's been washed out. [00:12:50] Speaker 04: It's been a trial. [00:12:51] Speaker 03: But with respect, Your Honor, this happens in going to the Title VII context, for instance. [00:12:56] Speaker 03: It could happen for plaintiff or defendant. [00:12:58] Speaker 03: Defendant moves for summary judgment denied. [00:13:00] Speaker 03: Go to trial. [00:13:01] Speaker 03: Defendant loses. [00:13:02] Speaker 03: Company loses. [00:13:03] Speaker 03: appeals after trial because you can't appeal an interlocutory ruling, go back and in a court, I can probably find cases where this court has said, well, a summary judgment should have been granted to the defendant. [00:13:14] Speaker 01: No, no, as a general proposition, that is not correct. [00:13:20] Speaker 01: Their circuits say in some circumstances where it is clear that the facts are undisputed and is simply a question of law left, we might review [00:13:33] Speaker 01: the claim on the summary judgment. [00:13:35] Speaker 01: Judge Sentelle is right, however. [00:13:37] Speaker 01: I'm clear on this. [00:13:38] Speaker 01: I just finished the whole Federal Standards Review book, and I've looked at this as a general proposition. [00:13:45] Speaker 01: Summary judgment, we don't look back at what might have happened on summary judgment, except in rare circumstances where [00:13:54] Speaker 01: is no doubt that the facts were undisputed and all we're looking at is a question of law. [00:13:59] Speaker 01: That's all. [00:14:00] Speaker 03: Well, and I'm saying, and I guess, Your Honor, what I'm saying is this is such a case. [00:14:04] Speaker 03: And why is it such a case? [00:14:06] Speaker 03: It's such a case because [00:14:08] Speaker 04: But to get that before us, don't you have to assert that as to the trial? [00:14:12] Speaker 04: And I don't find anything in your brief that says the judge committed error at the trial. [00:14:16] Speaker 03: No, I would submit that we don't need to say that, Your Honor. [00:14:19] Speaker 02: I thought what you were saying, sorry to interrupt, was, although this is not explicitly in the brief, as Judge Sentelle points out, is that as a matter of law, [00:14:29] Speaker 02: You were entitled to judgment on this claim. [00:14:32] Speaker 02: Yes, that's exactly right. [00:14:34] Speaker 02: And therefore, at trial or post-trial motions, you should have prevailed as a matter of law. [00:14:41] Speaker 02: But I found it odd, as I guess Judge Sintel did, that you were still referring back to the summary judgment, because I assume that's mooted out by the trial. [00:14:50] Speaker 03: No, we moved for summary judgment in the first place. [00:14:55] Speaker 03: I understand that. [00:14:56] Speaker 01: We understand, but we're telling you normally we don't look back. [00:15:00] Speaker 01: It really is very rare. [00:15:02] Speaker 01: Why don't you talk about Murray, the other piece? [00:15:06] Speaker 01: Sure. [00:15:07] Speaker 03: Well, I would say that Murray is entitled to summary judgment, okay? [00:15:11] Speaker 03: Murray is entitled to summary judgment because [00:15:16] Speaker 03: By virtue of finding that there was an issue as to whether or not Hanley's, the International's ruling was fair, by virtue of making that determination, the court was basically saying that there should have been a hearing [00:15:32] Speaker 03: As a matter of law, may I? [00:15:34] Speaker 02: You can keep going. [00:15:35] Speaker 02: We have a few more questions here. [00:15:37] Speaker 02: I thought the statutory issue here, and I was confused on this, was, it's not your fault. [00:15:42] Speaker 02: I think it's a confusing context. [00:15:45] Speaker 02: And so is discipline, is ineligibility determination discipline? [00:15:51] Speaker 02: Isn't that kind of a statutory question? [00:15:53] Speaker 03: Yes, it can be. [00:15:54] Speaker 03: That is one of the statutory questions that Judge Bosberg did resolve and which was not appealed. [00:15:58] Speaker 03: He said that rendering a man ineligible for office can count as discipline. [00:16:03] Speaker 03: Then, unfortunately for us, he went further and said, here... But on the facts of this case, it's not discipline. [00:16:15] Speaker 02: ultimately. [00:16:15] Speaker 03: It's not. [00:16:16] Speaker 03: He said that basically the jury will decide whether or not it's discipline. [00:16:19] Speaker 02: Right. [00:16:20] Speaker 03: And we say he aired there because first of all, that is an issue of law. [00:16:24] Speaker 03: Okay. [00:16:24] Speaker 03: Whether or not it was discipline and and that for for even for policy reasons, [00:16:30] Speaker 03: and statutory reasons, by virtue of finding, and this law review article that we cited, the Beard Law Review article was very helpful in this regard in terms of its discussing the early case law, the Figueroa case, and I think the Williams case, in terms of pointing out that whether, if there's a factual issue about whether or not application of a rule was fair or not, that's discipline. [00:16:56] Speaker 03: That as a matter of law is discipline and there needs to be even in the eligibility context. [00:17:01] Speaker 02: I guess I had a threshold question here of whether. [00:17:04] Speaker 02: that there are two different things, eligibility and discipline. [00:17:08] Speaker 02: So if you are applying for security clearance to be eligible for a job, you may not get that job. [00:17:16] Speaker 02: You may not be deemed eligible for the job. [00:17:18] Speaker 02: But discipline would be a whole separate thing where you're investigated, prosecuted, what have you, for whatever. [00:17:23] Speaker 03: And the only reason they conflate here, Your Honor, is that they rendered him [00:17:28] Speaker 03: They rendered her, I'm sorry, ineligible for office as a measure because in good standing. [00:17:35] Speaker 01: Well, I mean, I thought your argument was that the action taken, and there's a dispute over this which would keep your claim running, the union acted with hostility in preventing them from repaying [00:17:50] Speaker 01: and therefore the claim that it's simply ineligibility is bogus and you want to be able to challenge it. [00:17:56] Speaker 01: That's true and we should have been able to. [00:17:58] Speaker 01: We have case law in the circuit which talks about punitive being part of the standard that we look to see whether or not the claim is that the action taken against the employee [00:18:09] Speaker 01: was punitive, and if so, then a hearing is required. [00:18:13] Speaker 03: Sure, and I think this fits within that in the sense that, and Judge Bostberg said it, that a jury could find that it was wholly unjust, and indeed in bad faith, what Mr. Hanley did and what ATU did in rendering... You can't win that as a matter of judgment. [00:18:31] Speaker 01: You'd have to go to trial on that. [00:18:33] Speaker 03: Well, if we need to go to trial, I'd say that, Your Honor, but if you give me one more chance... You're saying there's a dispute. [00:18:41] Speaker 01: Saying the action they took against us is punitive, the other side saying, no it's not, it's just an eligibility determination, and you may be right, that's enough for you not to lose at that moment. [00:18:52] Speaker 03: But Your Honor, I would submit that the question here is whether or not there was discipline. [00:18:57] Speaker 01: And if you look at the Beard article, for instance... We can't tell whether there's discipline unless we know whether or not the action taken had a punitive underbelly there, whether the foundation was punitive. [00:19:09] Speaker 01: The other side said, no, it's just an eligibility determination, that's all. [00:19:13] Speaker 01: You're saying, no, it wasn't. [00:19:14] Speaker 01: This was bogus. [00:19:15] Speaker 01: It was a cover. [00:19:16] Speaker 01: They were intending to go after us and they made up something, retroactive application of rules, and it was totally unfair. [00:19:22] Speaker 01: The only way you can decide unfairness is for someone to look at the facts and say, having considered them, we agree it was unfair. [00:19:29] Speaker 03: Right, Your Honor. [00:19:29] Speaker 03: What I'm further saying is that Congress determined when it enacted the statute that the people who were supposed to decide whether or not it was fair and resolve that factual dispute were within the Union. [00:19:39] Speaker 01: So you want to say if there is a factual dispute with respect to punitiveness? [00:19:44] Speaker 01: Right. [00:19:45] Speaker 03: The Union should have had a hearing and done it there. [00:19:48] Speaker 03: That's what I'm saying. [00:19:49] Speaker 03: And maybe I should have said that a few minutes ago, Your Honor. [00:19:53] Speaker 02: Judge Boasberg analyzed this as if there's a factual dispute, it goes to trial. [00:19:58] Speaker 03: It goes to trial, and I would submit that that will require juries where Congress never intended them. [00:20:04] Speaker 03: And Judge Postberg, to his credit, I think, also acknowledged that some of the case law does acknowledge that we are, that our argument has basis, at least, namely the Figueroa case and the Williams case and the Beard article saliently. [00:20:20] Speaker 03: We'll give you some time on rebuttal. [00:20:21] Speaker 03: Thank you very much. [00:20:22] Speaker 03: Thank you for listening, Your Honor. [00:20:34] Speaker 00: Kathy Krieger for the Amalgamated Transit Union. [00:20:39] Speaker 00: And so as not to stumble, I'm going to say A to you. [00:20:42] Speaker 00: And I may refer to Ms. [00:20:44] Speaker 00: Murray and Mr. Hoon as the candidates. [00:20:50] Speaker 00: In order to reverse the well reasoned decisions below, this court would have to announce three sweeping unprecedented rules of law for which there's no authority that the appellant has presented. [00:21:07] Speaker 00: The first rule that when there's an ex officio [00:21:11] Speaker 00: delegate election, that the Department of Labor has only limited jurisdiction and can't investigate the whole election that gave rise to the position, and it's only by virtue of that officer position that then that person serves as the delegate to the international, that is completely unfounded. [00:21:30] Speaker 00: There's no legal authority for it. [00:21:33] Speaker 00: There was none cited by the plaintiffs. [00:21:36] Speaker 00: What about the letter? [00:21:37] Speaker 00: Pardon? [00:21:38] Speaker 02: What about the letter? [00:21:38] Speaker 00: The letter was a hypothetical and it was procured after the fact in a totally irregular manner. [00:21:47] Speaker 02: I guess we don't have any authority. [00:21:48] Speaker 00: There's not a timely complaint. [00:21:53] Speaker 02: Let me finish. [00:21:53] Speaker 02: There's no authority either way on that question, is there? [00:21:57] Speaker 00: There has never been an authority, and so far as the cases we've cited in our brief, the Otis and the other cases, the Teamsters case, that uphold the validity, the long-standing validity of the very concept of having an ex officio delegate [00:22:13] Speaker 00: The position that they're announcing that they're asking this court to embrace de novo with no precedent would eviscerate the very concept of an ex officio delegate election. [00:22:26] Speaker 02: Your second point, the second sweeping rule. [00:22:28] Speaker 00: The second sweeping rule they're saying is that [00:22:32] Speaker 00: For any ex officio delegate election, if there's a defect that actually disables one of the winning elected officers, delegates, from serving, from functioning as a valid delegate at the convention, [00:22:48] Speaker 00: That means that the election itself is taken outside of Title IV. [00:22:53] Speaker 00: And again, there's no authority supporting that. [00:22:56] Speaker 02: Or opposing it, though. [00:22:57] Speaker 00: Yes, there is the Chao decision, for example. [00:23:00] Speaker 00: Chao versus Amalgamated Transit Union is a classic example of the fact that every delegate election that elected an ex officio delegate to go to the convention [00:23:11] Speaker 00: was subject to the Department of Labor's jurisdiction. [00:23:29] Speaker 00: And then the question is, was there a violation of an additional requirement in the ATU Constitution that's not part of the regulation or the statute that enables ex officio delegates? [00:23:41] Speaker 01: It's not the same that nearly because a lot of people assume something doesn't make it so. [00:23:45] Speaker 00: It was in the Constitution and bylaws that the office elected serves by virtue of the office as a delegate. [00:23:52] Speaker 01: It couldn't be, but there could not be the election of a delegate in this case. [00:23:56] Speaker 00: There was indeed, it's no different than if the election had been not by secret ballot. [00:24:04] Speaker 00: There would not have been a valid election, but the effect in the election would have been subject to Title IV. [00:24:14] Speaker 04: flowed in its holding, it was still held for the purpose of election. [00:24:20] Speaker 04: I'm electing an officer to the local union who would be ex-officio, a delegate to the mixed union. [00:24:28] Speaker 00: Right, by the DOL regulations, by the ATU constitution, and by the bylaws. [00:24:32] Speaker 00: That was the choice. [00:24:33] Speaker 00: That was how the election was framed. [00:24:35] Speaker 00: Any number of defects could have prevented that election from being valid, but the Department of Labor's jurisdiction is to investigate. [00:24:43] Speaker 04: It was held for that purpose. [00:24:45] Speaker 00: It was an election of delegates, ex officio. [00:24:48] Speaker 04: You're not real good at listening to the court, are you? [00:24:51] Speaker 04: It was held for that purpose. [00:24:52] Speaker 04: It was held for that purpose, and therefore it comes within the language that makes this an in the exception to the exception. [00:24:59] Speaker 00: Exactly. [00:25:00] Speaker 00: We agree. [00:25:01] Speaker 04: Even though it may have been held poorly for that purpose, there may have been other flaws that still would come within that. [00:25:06] Speaker 00: Exactly. [00:25:07] Speaker 04: All right. [00:25:08] Speaker 00: That's our position. [00:25:10] Speaker 02: What would the remedy be for the ballot error? [00:25:17] Speaker 00: Department of Labor has had many remedies for situations in that. [00:25:22] Speaker 00: Sometimes they will determine after they take jurisdiction and investigate that it had no effect on the outcome. [00:25:29] Speaker 00: That has to do with whether they go to court to enforce it. [00:25:32] Speaker 00: It doesn't divest them of jurisdiction to actually determine the validity or invalidity of the election. [00:25:39] Speaker 00: And in this case, more to the point, the issue that the Department of Labor would have jurisdiction over is whether the eligibility determination made on that position, which is the same whether they're a delegate or the local union president, [00:25:53] Speaker 00: whether Ms. [00:25:54] Speaker 00: Murray's eligibility determination was proper or improper. [00:25:59] Speaker 00: And the Department of Labor has jurisdiction over that. [00:26:02] Speaker 00: If they find that there was nothing wrong and they declined to enforce and they declined to give a remedy, that doesn't divest them of jurisdiction over the issue. [00:26:10] Speaker 00: And the point Judge Boesberg understood is that if the question, the very question posed, the legality of that eligibility determination is subject to the Department of Labor's [00:26:21] Speaker 00: jurisdiction and the secretary ultimately decides that and has the power to decide that, then the court can't separately reach a different conclusion in two separate proceedings to determine that same dispositive legal question. [00:26:36] Speaker 00: And that is the one question here, which is the eligibility determination. [00:26:40] Speaker 00: The third sweeping unprecedented rule of law that the appellants are asking you to embrace is that [00:26:47] Speaker 00: Whenever there's a factual dispute that has to do with the after-effect assessment of whether a particular eligibility ruling was fair, unreasonable, in good faith and bad faith, that that means that the court may not decide it but has to grant judgment as a matter of law to the plaintiffs because the union never held a charge in trial proceeding. [00:27:10] Speaker 00: That puts the cart before the horse, as Judge Mosberg found, [00:27:13] Speaker 00: The only way you can determine whether there's any basis for going behind a straightforward eligibility determination is an after-the-fact judicial review. [00:27:22] Speaker 00: The standards are limited. [00:27:25] Speaker 02: Just so I can understand this, and I realize this is a part of the case that's gone, but just so I understand it, you moved for summary judgment as well on the eligibility, correct, that an eligibility determination is not disciplined? [00:27:41] Speaker 02: We did. [00:27:43] Speaker 02: And your theory there was that there are two distinct processes. [00:27:48] Speaker 00: Exactly. [00:27:48] Speaker 02: And then Judge Boesberg rejected that and concluded, no, if it's an unfair application or an unreasonable rule, [00:27:59] Speaker 02: then it may constitute discipline even though it's wrapped up in eligibility, correct? [00:28:05] Speaker 00: That was his original ruling, yes. [00:28:08] Speaker 02: And that should be decided unless there's overwhelming evidence one way or the other, that should be decided at trial. [00:28:17] Speaker 02: Is what he said. [00:28:19] Speaker 00: Yes, we're not comfortable with the foundational. [00:28:22] Speaker 00: I understand. [00:28:24] Speaker 00: But we are comfortable with the outcome in the sense that he said that if there's a question that has to do with the fairness of the rule, not about its original applicability or the facts that gave rise to the finding. [00:28:37] Speaker 00: And the appellants are absolutely clear on that. [00:28:39] Speaker 00: They are not [00:28:40] Speaker 00: claiming that there was a factual dispute as to whether the rule applied to them or whether they had violated the eligibility standard. [00:28:48] Speaker 00: The only question they're raising is whether the ATU should have accepted an excuse, a particularized excuse. [00:28:58] Speaker 00: And the question Judge Edwards raised, it was not ATU that had anything to do with this alleged thwarting or the reason why they couldn't repay. [00:29:07] Speaker 00: They may have claimed in court that their local union prevented them from making the payment, but ATU was deciding an appeal, looking on the record, and it applied an eligibility standard that's fair, objective, and has to be applied uniformly across the thousands of delegate elections in ATU. [00:29:29] Speaker 01: Wait, if their view of the record is correct, they're saying they were entitled to a full and fair hearing under the statute. [00:29:36] Speaker 00: Right. [00:29:37] Speaker 01: And they're saying that we have presented enough under the case law to suggest that this was a disciplinary action, and therefore we should get the full and fair hearing that the statute requires. [00:29:50] Speaker 00: None of the cases that they cite, and in particular their lead case Williams, stands for the proposition that any factual dispute automatically turns it into discipline. [00:30:00] Speaker 00: To the contrary, all the cases they cite involve, none of them involve an election eligibility ruling. [00:30:07] Speaker 00: There is no case ever. [00:30:08] Speaker 01: The problem is that could be bogus. [00:30:12] Speaker 01: That's their claim. [00:30:13] Speaker 01: Their claim is that that's just a facial excuse for what was happening to us. [00:30:21] Speaker 01: It was really punitive action that was being taken by people of ill will. [00:30:26] Speaker 01: That's their claim. [00:30:27] Speaker 01: And so under the statute, we're entitled. [00:30:29] Speaker 01: You can't do this without a full and fair hearing. [00:30:31] Speaker 00: Your Honor, the election eligibility determination was not made at the local level. [00:30:37] Speaker 00: It was made on appeal by the ATU, which was applying a rule it had previously said absolutely applied to these plaintiffs and only heard the case after an election protest came to them. [00:30:49] Speaker 00: There was no initiation of any punitive action. [00:30:52] Speaker 00: It was after they sued that they claimed that somebody in their local union had prevented them from making repayment, not to punish them, but just that that was a reason, a particularized excuse that ATU should have entertained. [00:31:08] Speaker 01: Well, that's obviously a claim of punishment. [00:31:10] Speaker 01: It's not a claim of... If you're saying, I had to pay and they wouldn't let me pay, you're claiming... [00:31:15] Speaker 00: No, Your Honor, the same eligibility rule applies to voter eligibility in every election and candidate eligibility. [00:31:22] Speaker 00: What they're saying is that if you make a ruling that says you're not eligible to vote, your ballot is challenged, you're not allowed to vote, that that's punishment because there might be a factual dispute. [00:31:35] Speaker 00: There is no case law that has ever held that a union [00:31:38] Speaker 00: hearing an election protest, resolving a challenge ballot, must bring the person up on an adversary charge and trial process if there's a dispute. [00:31:47] Speaker 00: To the contrary, they're all investigated administratively. [00:31:50] Speaker 00: Even the Secretary of Labor, when they subsequently look at the same question, [00:31:54] Speaker 00: investigated administratively and make their own determination whether they think the rule was fairly applied. [00:32:01] Speaker 00: Again, there's no question that this was not the context of anybody being singled out. [00:32:05] Speaker 00: There were three candidates in the election. [00:32:08] Speaker 01: What does 411-85 mean then? [00:32:10] Speaker 01: When does it come into play? [00:32:11] Speaker 00: When a union undertakes particularized, singles out somebody for a disciplinary action for a violation of a rule that doesn't have anything to do with them voting in an election or running for office. [00:32:24] Speaker 00: This was a standard, the context of this was a regular election. [00:32:29] Speaker 00: Post-election protest was filed. [00:32:32] Speaker 00: It was investigated on appeal. [00:32:34] Speaker 00: It went to the ATU. [00:32:35] Speaker 00: The ATU applied. [00:32:37] Speaker 00: But the rule that applies to every eligibility question of that nature, they applied it in a no fault, no excuses manner. [00:32:45] Speaker 00: You admitted you owed the money. [00:32:47] Speaker 00: It was not paid before the election. [00:32:50] Speaker 00: Therefore, you're not eligible. [00:32:51] Speaker 00: It doesn't mean you're punished in any way. [00:32:53] Speaker 00: When you pay up, you can run in the next election. [00:32:55] Speaker 01: No, I mean, that's your picture. [00:32:58] Speaker 01: And they're saying the picture is fuller than that. [00:33:04] Speaker 01: They're saying, no, that's not what happened. [00:33:07] Speaker 01: What happened was we were trying to pay, and they wouldn't allow us to pay. [00:33:12] Speaker 01: And that is punitive in our view, and you can't do this without a full and fair hearing. [00:33:18] Speaker 01: Wait, let me finish. [00:33:21] Speaker 01: And so I'm trying to understand the case law does say you look to see what's going on. [00:33:27] Speaker 01: And if you read what Judge Bosberg is saying, it seems to suggest that [00:33:31] Speaker 01: there was a serious question about unfairness here. [00:33:34] Speaker 01: And why doesn't the statute come into play is what I'm trying to understand. [00:33:38] Speaker 00: And what Judge Boesberg said is there's a serious question of unfairness or bad faith or outrageousness, and it's in the court's review to determine whether or not it was disciplinary or simply a standard election ruling, then that is a jury question. [00:33:53] Speaker 00: It's not a question that then means that you're entitled to judgment as a member of law. [00:33:59] Speaker 01: In your view, you can only get a 411-85 relief after a jury trial? [00:34:05] Speaker 00: No. [00:34:06] Speaker 00: Well, how do you get it? [00:34:08] Speaker 00: How do you get it? [00:34:09] Speaker 01: Does the person have to admit that, yes, I was nasty and I took action against the person, I suspended or fined them, expelled them for disciplinary? [00:34:22] Speaker 01: They have to admit that before you get a 411-85? [00:34:26] Speaker 01: There can't be situations where the person [00:34:29] Speaker 01: The party charged is unwilling to admit it, but facially it appears there's a good possibility that that's what happened. [00:34:38] Speaker 00: Your Honor, within the Union there is a charge and trial process in almost every 101A5 case. [00:34:43] Speaker 01: Wait, I'm trying to figure out what your view of is 411A5. [00:34:47] Speaker 01: Right. [00:34:48] Speaker 01: Where the charged party is not willing to admit. [00:34:53] Speaker 00: In a case where a charge is brought under the union's internal disciplinary proceedings, the rights of due process apply from the get-go. [00:35:05] Speaker 00: This is a situation where the union was not using a disciplinary process but was deciding an election appeal. [00:35:11] Speaker 02: That's the question. [00:35:12] Speaker 02: But that is the question. [00:35:14] Speaker 00: And it's a question for the court. [00:35:16] Speaker 02: Hold on a second. [00:35:16] Speaker 02: You're saying voter eligibility, candidate eligibility in connection with elections [00:35:22] Speaker 02: are not necessarily disappointed. [00:35:26] Speaker 02: You would say are not disappointed. [00:35:27] Speaker 00: I would say they're presumptively not disappointed. [00:35:29] Speaker 02: Correct. [00:35:30] Speaker 02: And Judge Boasberg said that may be true, it may not be true, but that depends on the facts of the particular case to first determine whether it's disappointed. [00:35:39] Speaker 00: Right. [00:35:40] Speaker 02: If it's discipline, then the due process kicks in. [00:35:43] Speaker 02: If it's not discipline, then the statute doesn't kick in. [00:35:47] Speaker 02: But first we have to determine whether it's discipline, and to determine that is a factual question. [00:35:52] Speaker 00: If there's a factual, true to factual dispute raised in court, as there was before Judge Boesberg, a classic due question. [00:35:59] Speaker 02: But this statute still has lots of effect outside [00:36:02] Speaker 02: the context of voter eligibility or candidate eligibility, you acknowledge that. [00:36:06] Speaker 00: Oh, it is designed for everything else but voter eligibility and candidate eligibility. [00:36:12] Speaker 02: Because, and the reason here, there's a question, and really, whether it's discipline. [00:36:17] Speaker 00: Those are outlier cases, and the very cases that they rely on [00:36:21] Speaker 00: actually say that the presence or absence of a factual dispute is not dispositive. [00:36:26] Speaker 00: We have to look at, as a court, reviewing with our limited judicial review, whether this was reasonable in bad faith or otherwise outrageous in arbitrary law that we've cited in our brief, is the very case law that Judge Bosberg recognized. [00:36:42] Speaker 00: We're not citing something new. [00:36:43] Speaker 00: He cited Manzillo, he cited the bad faith standard, he applied all of that and it was fully briefed to him at every stage. [00:36:53] Speaker 00: So when we elaborated on that and explained what the context is for the determination of fairness, reasonableness, bad faith, there is an established body of law that Judge Bosberg was following. [00:37:06] Speaker 00: And when he came up with a factual dispute, he properly then, in his view, referred it to the jury, and there's no basis for overturning that. [00:37:15] Speaker 02: Thank you. [00:37:15] Speaker 02: Thank you. [00:37:23] Speaker 03: Thank you, Your Honor. [00:37:24] Speaker 03: I'll be brief. [00:37:25] Speaker 03: First, with respect to the Chao case that Ms. [00:37:30] Speaker 03: Krieger mentioned, [00:37:32] Speaker 03: That case, we believe, Your Honors, actually supports us on that delegate phrase issue, that discrete issue, because that case actually talks about Title IV, you know, when they're assuming that that was the relevant issue. [00:37:45] Speaker 03: That case talks about delegates having the power to nominate and vote for officers of that international. [00:37:51] Speaker 03: And in this case, they determined, the ATU did, that [00:37:57] Speaker 03: that the persons elected within Local 1300 did not have that power to nominate and vote. [00:38:05] Speaker 03: by refusing to seat them as delegates at the election. [00:38:10] Speaker 03: I just wanted to make that simple point. [00:38:11] Speaker 03: In terms of the case law, one case, and some of the cases admittedly old, the 1974 case from the Eastern District of Pennsylvania, the Caravan case, is a case where the plaintiff, in fact, received summary judgment because he had not been afforded the procedures in 411A5. [00:38:29] Speaker 03: So I wanted to mention that. [00:38:30] Speaker 03: And it's really, that case is one that's directly on point as to why we say that Plaintiff Murray, and I would respectfully submit Plaintiff Queen as well, were entitled to summary judgment as plaintiffs. [00:38:45] Speaker 03: Another thing that I think it's important to recognize is that Judge Bostrom... If summary judgment gets you what? [00:38:51] Speaker 01: You're seeking what? [00:38:52] Speaker 01: I mean, is this an odd... [00:38:54] Speaker 01: The application's statute is really odd. [00:38:58] Speaker 01: You're trying to get summary judgment to get due process? [00:39:02] Speaker 03: No, summary judgment to get to a trial of damages, to just get to the damages related. [00:39:07] Speaker 01: Let me back up a little bit. [00:39:10] Speaker 01: Where does 411A5 come into play in your life? [00:39:14] Speaker 03: Well, it comes into play once you determine that whatever the measure being considered, be it [00:39:24] Speaker 03: um... uh... beating someone ineligible whatever it might be your honor and there's a factual question as to whether the rule applies then 411-85 comes into play as the beard article comes into play with what relief that is now we're going to give you a fair hearing or what yes yes you're entitled to a hearing if there's a question about that that's what the caravan case said so so this is the odd posture [00:39:51] Speaker 01: So your claim is there is a dispute here as to whether or not this was punitive. [00:39:58] Speaker 01: You want to say it's punitive, but that's ridiculous. [00:40:00] Speaker 01: There's a dispute as to whether it's punitive. [00:40:02] Speaker 01: That's where Judge Bose works. [00:40:03] Speaker 01: So there's a dispute over whether what the union did here was punitive and thus disciplinary. [00:40:11] Speaker 01: The other side's no, it's not. [00:40:14] Speaker 01: Now you have 411A5. [00:40:17] Speaker 01: What are you saying? [00:40:18] Speaker 01: The district court's saying it has to be tried first, and then I guess 411A5. [00:40:24] Speaker 01: You're saying what about 411A5? [00:40:27] Speaker 03: What I'm saying about 411A5 is that whenever there is a situation where you have a rule, where non-eligibility is being considered based on a particular rule, here, good standing status, [00:40:41] Speaker 03: If the person is disputing that and it is raising, it's not just obviously lying, raising legitimate issues, then 411A5 kicks in, union, you've got to give that person a hearing internally. [00:40:53] Speaker 03: Is that the remedy? [00:40:55] Speaker 03: The remedy is the hearing. [00:40:56] Speaker 01: And yes, at that point... That's what I'm asking you. [00:40:58] Speaker 01: I'm sorry, Ron. [00:40:59] Speaker 01: I'm saying, are you saying that what I was trying to seek was a hearing that we're entitled to under 411A5, and I don't want to go to trial on this. [00:41:07] Speaker 01: I want my hearing under 411A5 because it's disputed. [00:41:10] Speaker 03: No, no, what we're saying is... That's what I'm not understanding. [00:41:13] Speaker 03: Here's what we're saying, Your Honor, is they should have, before the ATU should have, before deeming my clients just without a hearing internally, ineligible for office, they should have said... Just to come back to what the question was, you're being asked about the relief that you're seeking. [00:41:31] Speaker 04: You're going back and telling us what your cause of action is. [00:41:34] Speaker 03: Okay. [00:41:34] Speaker 03: Well, the relief ultimately we're seeking now... Whoa! [00:41:37] Speaker 04: No, no. [00:41:37] Speaker 04: How about telling us what the relief is? [00:41:39] Speaker 04: that you now say you should have been entitled to go far below. [00:41:44] Speaker 03: We should have been entitled to the relief that the statute provides for people who have not gotten it. [00:41:50] Speaker 03: Don't tell me where it comes from. [00:41:51] Speaker 04: Tell me what the relief is. [00:41:54] Speaker 03: Compensatory damages, pain and suffering, economic damages, reputational damages, all of which are provided. [00:42:00] Speaker 01: Even though all you're saying is there is a dispute as to whether what was done was disciplinary. [00:42:07] Speaker 01: If I can show there's a dispute as to whether what was done was disciplinary, [00:42:11] Speaker 01: Your argument is I'm entitled to damages. [00:42:14] Speaker 01: Can you tell me which case says that? [00:42:16] Speaker 01: There are certainly cases that support your view that this may be disciplinary. [00:42:25] Speaker 01: You know, when you have a reasonable claim that it's punitive. [00:42:29] Speaker 01: Where is the case that says we're not going to figure out whether it really was punitive? [00:42:33] Speaker 01: All you have to be able to show is that there is a question, and therefore if there was, you get damages. [00:42:39] Speaker 03: Caravan, the case cited in the briefs. [00:42:42] Speaker 03: The Howard case cited in the briefs. [00:42:46] Speaker 03: and also the Law Review article, the Beard article. [00:42:50] Speaker 01: I'm looking at that and I see what it says but it doesn't even say it the way you're, it says the only question remaining is whether the base of the dispute is factual in nature. [00:43:01] Speaker 01: If it is, a full evidentiary hearing with the protections granted in 105 [00:43:06] Speaker 01: A5 is required. [00:43:08] Speaker 03: That's what I'm saying, Your Honor. [00:43:09] Speaker 01: Well, then that's the relief. [00:43:11] Speaker 03: Well, no, they should have provided us with the hearing at the time it came up so that the union could have decided it. [00:43:20] Speaker 01: I'll have to look at the cases. [00:43:21] Speaker 01: I hear what you are now saying, which seems strange to me. [00:43:25] Speaker 01: I did not see any cases that say if you can reasonably contest what happened. [00:43:33] Speaker 01: That is, like Judge Bolesberg did, if you reasonably can contest it, you're entitled to damages. [00:43:40] Speaker 01: That's the relief. [00:43:43] Speaker 03: Well, just to be clear, Your Honor, if I may, I'm saying if you can – if you reasonably contest it and the union doesn't give you a hearing, then they've breached their obligation on the statute, then you're entitled to damages. [00:43:56] Speaker 03: That's what I'm saying. [00:43:57] Speaker 03: All right. [00:43:57] Speaker 02: Thank you very much. [00:43:58] Speaker 02: All right. [00:43:59] Speaker 02: Thanks to both counsel. [00:44:00] Speaker 02: The case is submitted.