[00:00:00] Speaker 00:
case number 17-1058 at L. Local 58th International Brotherhood of Electrical Workers IBEW AFL-CIO petition versus National Labor Relations Board.

[00:00:13] Speaker 00:
Mr. Federer for the petition.

[00:01:09] Speaker 03:
May it please the court, Robert Federer-Miller Cohen on behalf of IBW Local 58.

[00:01:13] Speaker 03:
And I've reserved two minutes of my time for rebuttal.

[00:01:17] Speaker 03:
And I'd like to start by giving a practical perspective for my client on really the necessity for this policy.

[00:01:25] Speaker 03:
Local 58 has a moral and legal obligation to protect its members from fraud.

[00:01:32] Speaker 03:
A fraudulent resignation can cause irreparable harm to its members and to the institution.

[00:01:39] Speaker 03:
Every business in America understands the risk of identity fraud.

[00:01:44] Speaker 03:
Any person that has dealt with a business that is a customer or in any way dealt with a business knows they have to verify their identity in some way.

[00:01:53] Speaker 03:
It is not burdensome.

[00:01:55] Speaker 03:
People understand that this protection is necessary.

[00:01:58] Speaker 03:
There's no movement in this country

[00:02:00] Speaker 03:
the change, having to verify your identity, dealing with businesses.

[00:02:06] Speaker 01:
Can I ask, does any other union in the country have this policy?

[00:02:10] Speaker 03:
Your Honor, if I only had that knowledge of what every policy, every union would be.

[00:02:14] Speaker 03:
How do you know of any other union that has the policy?

[00:02:17] Speaker 01:
I know of some unions that have similar policies.

[00:02:20] Speaker 01:
Do they have a combination of in-person, with picture ID, and with written request?

[00:02:29] Speaker 03:
I'm reluctant to give the board my knowledge of what policies may be for purposes of enforcement.

[00:02:34] Speaker 01:
I don't mind if you give the board, but I'm asking you to give me.

[00:02:37] Speaker 03:
Yeah, I know some that have actual in-person requirements.

[00:02:42] Speaker 03:
I know some that have requirements to verify the identification in one way or the other.

[00:02:51] Speaker 01:
With a picture ID?

[00:02:53] Speaker 03:
With a picture ID?

[00:02:54] Speaker 01:
Yeah, isn't that what's required here?

[00:02:57] Speaker 03:
Picture ID.

[00:02:58] Speaker 03:
Well, I don't mean to attack the premise, but a picture ID is not required because it allows for other arrangements to be made.

[00:03:05] Speaker 01:
We'll get to that question next, but it's at least the basic policy to require picture ID written request in person, right?

[00:03:20] Speaker 01:
And then you can make a request for something else, but that's the basic policy, right?

[00:03:25] Speaker 01:
Does anybody else have that?

[00:03:27] Speaker 03:
I can't speak to that.

[00:03:29] Speaker 03:
I don't know.

[00:03:32] Speaker 03:
I typically know what my clients have.

[00:03:35] Speaker 03:
And outside of that, I would have no reason to know on any broad basis what any local union may have.

[00:03:42] Speaker 02:
Isn't forcing them to drive two hours each way a bad thing?

[00:03:47] Speaker 02:
hurdle to resignation that seems beyond what the board's precedents suggest is permissible and the Supreme Court's precedents suggest is permissible.

[00:03:58] Speaker 03:
Judge Kavanaugh, I'm glad you brought that up.

[00:04:01] Speaker 03:
Because what the board has said, has argued, is that there's a requirement to show up in person at the hall.

[00:04:07] Speaker 03:
And this policy has to be read in its totality.

[00:04:11] Speaker 02:
on Chief Judge Garland's point, too, which is that that's the basic policy.

[00:04:16] Speaker 02:
And you're saying, well, you don't have to go through the basic policy of the photo ID and the in-person, which is true.

[00:04:22] Speaker 02:
But the problem in this case, which was easily avoidable, so all this litigation was easily avoidable, is you could have spelled out the undue hardship conditions more clearly to avoid this whole

[00:04:35] Speaker 02:
this whole morass.

[00:04:37] Speaker 02:
And what they fear, what the board fears obviously, is that the undue hardship is uncertain and therefore it's going to chill people from exercising their statutory right to resign without hurdles.

[00:04:49] Speaker 03:
Right, the context of this policy is because of the nature of this local union, there are hundreds or thousands of its members passing through the hall

[00:04:57] Speaker 03:
on a regular basis, because that's how they get their job assignments.

[00:05:01] Speaker 03:
That's how they pay their working dues.

[00:05:04] Speaker 03:
That's where they go for meetings and events.

[00:05:07] Speaker 03:
For most of the members of this local, appearing at the local hall, they're there on a regular basis.

[00:05:13] Speaker 01:
If they're going to resign, they might not want to appear.

[00:05:16] Speaker 01:
That's NLRB's argument.

[00:05:18] Speaker 01:
That would be the exact place you wouldn't want to go.

[00:05:20] Speaker 03:
Right, whether you're a union member or not, you still get your job through the hall.

[00:05:25] Speaker 03:
I see, I see, I see.

[00:05:27] Speaker 03:
We can't stop referring non-members out.

[00:05:29] Speaker 03:
I got it, I got it.

[00:05:31] Speaker 03:
So membership, coming to the hall is not dependent on membership.

[00:05:35] Speaker 03:
And many of them do.

[00:05:36] Speaker 05:
Do you have to come to the hall to get your job?

[00:05:40] Speaker 03:
It depends on the job, but usually if you're out of work and you want what they call a short call,

[00:05:45] Speaker 03:
like less than a two week job, then yes, you gotta come to the hall to get it.

[00:05:51] Speaker 03:
Because it's short and they, if you're there, they grab you and you go.

[00:05:55] Speaker 05:
So you still have to drive the two hours.

[00:05:57] Speaker 03:
You still have to drive two hours.

[00:05:59] Speaker 03:
Now they have some, this is for the vast majority of their members.

[00:06:02] Speaker 03:
They have some members that are factory workers, that are public employees, about 500 out of about 5,000 right now, don't work in the construction trades, as Mr. Green didn't.

[00:06:16] Speaker 03:
And they don't have to come to the hall as regularly.

[00:06:19] Speaker 03:
But they didn't want to have a mishmash of different policies.

[00:06:23] Speaker 03:
But according to the board's logic,

[00:06:27] Speaker 03:
I want to give you a scenario.

[00:06:32] Speaker 03:
About 90% of its members have a dues-funded pension and life insurance benefit.

[00:06:38] Speaker 03:
It requires 20 years of continuous membership.

[00:06:41] Speaker 03:
The board says the law requires that if a person states that Robert Fetter on the phone or leaves a voicemail or sends a note and says, I want to resign, the local must immediately recognize.

[00:06:53] Speaker 02:
That's not their position.

[00:06:54] Speaker 02:
They say you can require it in writing.

[00:06:57] Speaker 02:
Well, okay, so they send a note.

[00:07:00] Speaker 03:
And they get a note in the mail or stuck on the window or however it may be.

[00:07:06] Speaker 03:
And the dues stop coming out.

[00:07:12] Speaker 03:
The person realizes it a couple weeks later when they get their check.

[00:07:15] Speaker 03:
When they get around to it, they check with their steward.

[00:07:17] Speaker 03:
And they say, why aren't dues coming out?

[00:07:20] Speaker 03:
And they say, because you're not a member.

[00:07:21] Speaker 03:
You've got to sign this new card.

[00:07:22] Speaker 03:
They sign the card.

[00:07:24] Speaker 03:
do start coming out again in the future.

[00:07:25] Speaker 03:
Fast forward 10 years, they retire.

[00:07:28] Speaker 03:
They apply for their pension.

[00:07:30] Speaker 03:
It's denied because they had a break in membership.

[00:07:33] Speaker 01:
Well, under those circumstances, I get the point about somebody who's been doing this for years, but under those circumstances, they've been fraudulently removed from the record

[00:07:49] Speaker 01:
Why isn't both the union why aren't both the union and the employer required to?

[00:07:57] Speaker 01:
Fix that problem for those two weeks that is take it out of the next since yet The person hasn't taken out of the last two weeks take it out of the next two weeks Why is it any different than if?

[00:08:09] Speaker 01:
Somebody steals your paycheck before it gets to you from the from the company's treasurer That doesn't absolve the company's treasurer of having to give you a paycheck

[00:08:20] Speaker 03:
Right.

[00:08:21] Speaker 03:
It's... We're concerned that people won't give it that much thought at the time, because people don't think of their... I mean, they think of their overall pension that they get that is collectively bargained between the employer and the union.

[00:08:34] Speaker 03:
They may not necessarily be thinking about their dues-funded pension, which is a separate pension that comes from their dues money.

[00:08:40] Speaker 03:
They may not be thinking about that at the time, or take the effort to go around and pay back the dues and recognize that it's even a problem.

[00:08:48] Speaker 03:
They may not even know they have a dues-funded pension, to be quite honest with you.

[00:08:54] Speaker 03:
Not all members even know that.

[00:08:57] Speaker 03:
And it also casts aside this issue of election.

[00:09:00] Speaker 03:
They get a petition.

[00:09:02] Speaker 03:
They get some writing that says these 30 members no longer want to be members of the IBEW.

[00:09:09] Speaker 03:
They get that the day before an election.

[00:09:11] Speaker 02:
But isn't the easy way to

[00:09:14] Speaker 02:
resolve this concern, which I acknowledge is a legitimate concern and a good practice to confirm, is to, when you get the written letter, call the person, which is, in fact, what did happen.

[00:09:29] Speaker 02:
Right.

[00:09:29] Speaker 03:
Which shows that there's no intent in this policy.

[00:09:33] Speaker 02:
Right.

[00:09:33] Speaker 02:
I understand that.

[00:09:34] Speaker 02:
And once you call the person, then you've got the written letter and you've confirmed by calling the number you have on file for the person, and that

[00:09:41] Speaker 02:
That should largely, not entirely perhaps, but largely avoid the fraud potential.

[00:09:47] Speaker 03:
And that's what they did in this case.

[00:09:49] Speaker 03:
I understand, but why not spell that out?

[00:09:52] Speaker 03:
But we may not be able to have an accurate phone number for the particular member.

[00:09:58] Speaker 03:
We may not even have an accurate address for the member.

[00:10:01] Speaker 03:
And so then what happens in situations when we don't?

[00:10:04] Speaker 02:
The problem is this streaming of hypotheticals to have a policy that's, in the meantime, going to potentially deter people from resigning, which is what the board precedents.

[00:10:17] Speaker 02:
The Supreme Court has said you can't do.

[00:10:19] Speaker 03:
And I don't see a deterrent.

[00:10:20] Speaker 03:
And here's why.

[00:10:22] Speaker 03:
Here's how it would work in practice.

[00:10:26] Speaker 03:
We didn't have much of a chance to apply it in practice other than the one occasion.

[00:10:31] Speaker 03:
But at any rate, somebody calls and they said, I want to resign.

[00:10:34] Speaker 03:
They said, can you come down to the hall?

[00:10:36] Speaker 03:
They said, no, I don't want to come down to the hall.

[00:10:38] Speaker 03:
OK, can you verify your social security number that we have on file?

[00:10:41] Speaker 03:
Sure, done.

[00:10:43] Speaker 03:
That is easier than sending a writing to a particular union officer, which everybody agrees is not a violation of the Act.

[00:10:54] Speaker 03:
That does not chill people from calling the telephone company.

[00:11:00] Speaker 03:
that doesn't chill people from, I mean, this allows people to contact the hall and make other arrangements.

[00:11:06] Speaker 03:
The goal here is simply, and I'll just finish and then I'll conclude, is simply to verify their identity.

[00:11:14] Speaker 01:
So I think the problem is not that these alternatives wouldn't be okay.

[00:11:20] Speaker 01:
At least as I read the board's decision, it's not clear from the is for the resolved paragraph that they will be okay.

[00:11:28] Speaker 01:
It's not clear who is going to decide.

[00:11:31] Speaker 01:
whether there's an undue hardship, it's not clear who is going to decide what other arrangements.

[00:11:39] Speaker 01:
In your brief, you suggest it's totally up to the union member, but you can't really mean that, do you?

[00:11:44] Speaker 01:
You don't mean whatever the union member proposes will be sufficient for the union.

[00:11:49] Speaker 03:
No, that's not what the record says.

[00:11:51] Speaker 01:
Right.

[00:11:52] Speaker 01:
Well, I don't – and that's not what you mean.

[00:11:54] Speaker 01:
Right.

[00:11:55] Speaker 01:
Spelling out a series of alternatives that would be just as good for your purposes and that would not be an obstacle to somebody who actually wants to resign would be permissible.

[00:12:11] Speaker 01:
The problem here is the uncertainty and we have to defer to the board's reading of this as

[00:12:23] Speaker 01:
something that a reasonable member of the union might think leaves it totally in the union's hands rather than in the member's hands.

[00:12:33] Speaker 03:
Yeah, I think there's no way to read this that whether there's an undue hardship is not up to the subjective view of the member because it says any member that feels that appearing at the union hall

[00:12:47] Speaker 03:
So it is their feeling, which the union has no idea what they're feeling.

[00:12:52] Speaker 03:
It is up to them.

[00:12:52] Speaker 01:
It's the may-make other arrangements.

[00:12:57] Speaker 01:
You agree that the other arrangements are not totally up to the member, right?

[00:13:02] Speaker 03:
Right.

[00:13:02] Speaker 03:
And the make any other arrangements goes back to any member.

[00:13:07] Speaker 03:
because it's before the end and then the member may make other arrangements to verify the identification of the member contact in the union hall.

[00:13:16] Speaker 01:
But you're not going to leave it to the member to say this is what I'm going to do and that's enough.

[00:13:20] Speaker 03:
Right.

[00:13:21] Speaker 03:
And what the business manager had testified at the hearing was, it's any reasonable method, as long as they verify their ID.

[00:13:29] Speaker 03:
And that's his testimony.

[00:13:32] Speaker 03:
That's what we have in the record.

[00:13:33] Speaker 03:
I guess I still don't know what any reasonable, even I don't know what any reasonable... Well, any reasonable method means anything that's effective to give us, and the way that he phrased it is, there's a death benefit attached to this.

[00:13:48] Speaker 03:
and they had somebody that died building an arena not too long ago.

[00:13:53] Speaker 03:
He does not want to look at that person's spouse and say, you are denied this health insurance and I didn't make reasonable efforts.

[00:14:02] Speaker 03:
to determine that it was really their identity or that person who designed it.

[00:14:06] Speaker 01:
Would it not be possible for the union to list what the alternative arrangements would be?

[00:14:12] Speaker 01:
I mean, it can't be too long of a list that would satisfy you.

[00:14:16] Speaker 01:
So if you made a list that did satisfy you, which didn't include having to show up or which didn't include a picture ID?

[00:14:26] Speaker 03:
It's not in the record, but I believe what was in the union's mind is they didn't want to limit it.

[00:14:31] Speaker 03:
If they had a reasonable way that they could verify their identity, they didn't want to limit them.

[00:14:37] Speaker 02:
You could list a couple and say, and we'll consider other alternatives too, in which case this litigation wouldn't have happened.

[00:14:43] Speaker 02:
Oh, it may still have happened.

[00:14:47] Speaker 02:
Not if you said in writing followed by a phone call is good enough, then this litigation wouldn't have happened.

[00:14:53] Speaker 03:
As an example, I'm not sure that this well well, we may not have been here you may not have been this I understand your broader point.

[00:15:04] Speaker 03:
But but I understand that but this is a facial challenge listing examples as to how what other arrangements would be acceptable.

[00:15:13] Speaker 03:
I don't think that's subject to a facial challenge.

[00:15:16] Speaker 03:
There might be an as applied if they apply it in a bad way at some point, which they haven't and I don't think they have any intent to do so.

[00:15:24] Speaker 03:
But that I think would be left to going beyond the face of, if there are other arrangements that are acceptable and that would be legal, then the policy as a whole is acceptable.

[00:15:37] Speaker 01:
What's the consequence to the union if

[00:15:42] Speaker 01:
we affirm, but note that an alternative along the lines we just discussed, that is one in which the union describes an additional set of options would be acceptable.

[00:16:00] Speaker 01:
In a way, I wonder why we're here.

[00:16:03] Speaker 01:
That is why that wasn't resolved before you got here.

[00:16:07] Speaker 01:
But other than that, what's the consequence to the union of something like that?

[00:16:13] Speaker 03:
The consequence to the, well, I mean, they have to post a notice saying they violated the act, but I don't think they have.

[00:16:20] Speaker 03:
But the consequence of that is I'm trying to think of how that comes out in an enforceability way.

[00:16:32] Speaker 03:
But saying that the policy is otherwise okay, just to make sure I understand, if you had cited some examples that said including but not limited to, you know, you can have a notarized letter, you can verify over the phone information we have on file or, you know, whatever it may be, whatever that list may be, that that would make this legal.

[00:16:55] Speaker 03:
I don't know what the consequence would be.

[00:16:58] Speaker 05:
Well, the majority opinion suggests that.

[00:17:02] Speaker 05:
There may be alternatives, but it's also clear from the majority there has to be a minimal impact.

[00:17:11] Speaker 05:
So they say you have to send a letter.

[00:17:16] Speaker 05:
And if everybody doesn't have an iPhone or some website you can contact them with, then you're left with the mails.

[00:17:26] Speaker 05:
So if you've got a letter saying, I want to resign the union effective today at midnight,

[00:17:32] Speaker 05:
There's no time for you to get back to me or you can't reach me on the telephone.

[00:17:36] Speaker 05:
So my benefits are gone.

[00:17:39] Speaker 05:
So, I mean, the union distributes things to its members.

[00:17:49] Speaker 05:
What I'm thinking of is any time I try to unsubscribe to something, I get all these messages about, are you sure you really want to unsubscribe?

[00:17:57] Speaker 05:
We'll give you another 30 days free service or whatever.

[00:18:01] Speaker 05:
But I doubt – I mean, in a working context, that's not going to be possible for many of the members of the union.

[00:18:09] Speaker 03:
What's not going to be possible?

[00:18:10] Speaker 03:
What part of that?

[00:18:11] Speaker 05:
Well, a lot of texting and emailing.

[00:18:14] Speaker 03:
Yeah, this local does not communicate via, I mean, they have some members that have given emails and they may communicate, but they communicate, if they're going to communicate broadly, it's through old-fashioned newsletters that they mail out.

[00:18:30] Speaker 03:
And that's not communication back that verifies it.

[00:18:35] Speaker 03:
I mean, they send it out to the addresses they have on file.

[00:18:37] Speaker 01:
But presumably, if there's a dues checkoff, that means there's a

[00:18:41] Speaker 03:
Wage payment and the wage payment is made somehow either somebody has to pick it up from somewhere or It's direct deposited And and don't forget because of the nature of how many of these members work they may work for 25 employers a year

[00:19:10] Speaker 03:
They jump from, I mean, it's construction site to construction site to construction site to construction site.

[00:19:17] Speaker 03:
Some have stable core group of electricians that they keep, but many of them work from employer to employer to employer.

[00:19:24] Speaker 03:
So relying on employers is often not very accurate.

[00:19:30] Speaker 03:
And even finding who their employer is at any given time is always not super easy.

[00:19:37] Speaker 03:
Thank you.

[00:19:51] Speaker 04:
Good morning, Your Honor, Smith, please the court, Michael Hickson for the NLRB.

[00:19:55] Speaker 04:
The board here reasonably found that the union's policy facially violates Section 8B1A of the Act.

[00:20:01] Speaker 04:
The policy first constitutes an unlawful restriction because, as the board found, it imposes a significant burden on employees' exercise of their Section 7 rights to resign their union membership or to revoke their dues checkoff authorizations.

[00:20:17] Speaker 04:
The policy

[00:20:18] Speaker 04:
As has been discussed, creates a substantial obstacle by directing any member that desires to exercise their statutory rights to resign or evoke, telling them that they must do so in person at the union hall.

[00:20:33] Speaker 04:
and show picture identification.

[00:20:35] Speaker 01:
Can you suggest a lesser requirement that satisfies the act but at the same time satisfies the union's concern that it not be defrauded into dropping somebody either in a way that would change an election by changing the membership or in a way that would hurt a member by affecting their pension?

[00:21:01] Speaker 04:
Your honor, I can't give you another example that I can tell the court definitively would pass muster before the board.

[00:21:11] Speaker 02:
The board said in writing was okay.

[00:21:14] Speaker 04:
Yes, your honor.

[00:21:14] Speaker 04:
Yes, your honor.

[00:21:15] Speaker 04:
The board specifically affirmed here.

[00:21:17] Speaker 02:
No, the board said

[00:21:20] Speaker 02:
I'm sorry to interrupt, but the board said a union can require that the resignation be communicated in writing.

[00:21:25] Speaker 04:
Yes, Your Honor.

[00:21:26] Speaker 04:
Yes, Your Honor.

[00:21:27] Speaker 04:
The board here specifically affirmed its prior precedent that it's acceptable for a union to require its members to put a resignation request in writing and designated to a particular union officer.

[00:21:39] Speaker 05:
So the board... So the question is, I send in a slew of letters, all typed in different fonts, et cetera, or all handwritten in different ways, telling the union that,

[00:21:49] Speaker 05:
following 50 members are resigning.

[00:21:55] Speaker 05:
Are you just supposed to accept that?

[00:21:58] Speaker 04:
Your Honor, I don't know.

[00:22:00] Speaker 04:
I take the point, and I understand that that case would present interesting questions about how the union worked to respond in that scenario.

[00:22:08] Speaker 05:
What would the board say could be done in addition to sending a letter?

[00:22:14] Speaker 04:
Your Honor, well,

[00:22:16] Speaker 04:
What it's affirmed here is that it's acceptable for the union to require members to put it in writing, the request in writing, and designated to a particular union officer.

[00:22:26] Speaker 04:
Certainly, Your Honor.

[00:22:27] Speaker 04:
Yes, I understand.

[00:22:28] Speaker 04:
Well, the thing is, Your Honor, that the board here is confronted with the facts of this case and with the language of this policy, which the union drafted.

[00:22:37] Speaker 02:
Isn't the answer that the union

[00:22:40] Speaker 02:
Maybe I'm wrong, but the union in a circumstance like Judge Rogers describes, I thought, could have a policy, which this union did, of when you get a letter like that, you call the number you have, you do something to make sure that it's not just some

[00:22:56] Speaker 02:
rabble rouser impersonating the union member and resigning in that way so the union and the board would have no obviously no problem with that I assume how could it with the union would be the one making the call to confirm right your honor I mean wouldn't be any burden on the union member.

[00:23:16] Speaker 04:
Well, just to be clear, Your Honor, in candor, I can't say that there is a board case that has confronted those facts.

[00:23:22] Speaker 02:
I understand.

[00:23:23] Speaker 02:
I'm just saying that what happened in this case was a lot of oddities about this case.

[00:23:28] Speaker 02:
But one thing that's odd is that what happened seems perfectly appropriate, which is send in a letter, and then there was a phone call to confirm, and all was well.

[00:23:41] Speaker 04:
Right.

[00:23:41] Speaker 04:
Well, there's no dispute in this case, Your Honor, as to the actual facts of how things played out with Mr. Green, although we don't know, you know, that Mr. Green was ever aware of the policy, of course, and perhaps if he had been aware of the policy, he may have been discouraged from ever pursuing his right to resign.

[00:24:00] Speaker 04:
And that's what the board

[00:24:01] Speaker 04:
is concerned with your, it's a facial challenge.

[00:24:03] Speaker 02:
Yeah, no, I understand that and I get all that.

[00:24:06] Speaker 02:
I'm just talking about the hypothetical, which I think was the question Judge Rogers asked and I'm concerned about too, is what can a union do to avoid the fraud that your opposing counsel rightly raises as a concern?

[00:24:20] Speaker 02:
Require it in writing and call to confirm.

[00:24:23] Speaker 04:
I understand, Your Honor.

[00:24:24] Speaker 04:
The thing is that I can't tell the union and the board can't tell the union, you know, what it is that it can do.

[00:24:30] Speaker 04:
I mean, the board generally stays out of the union's internal affairs.

[00:24:35] Speaker 04:
That's part of the policy underlying the Act in Section 8 P.A.

[00:24:39] Speaker 01:
Lawyers normally before us have to answer hypotheticals.

[00:24:42] Speaker 01:
Now if the board attorney's position is that they can never answer a hypothetical, there may be no use to having the board attorney argue cases in front of us.

[00:24:50] Speaker 01:
So here's my hypothetical.

[00:24:52] Speaker 01:
Imagine they required on the writing that you put a phone number, address, or some other way for the union to contact them to confirm.

[00:25:02] Speaker 01:
Do you think that that would be impeding the National Labor Relations Act?

[00:25:08] Speaker 01:
Would it damage the purpose of the act, and therefore no balancing is required, or do you think that would be okay?

[00:25:15] Speaker 04:
Your Honor, I want to make sure I understand the question.

[00:25:17] Speaker 04:
Are you saying if the union had a policy that said in order to resign, you sent us a writing, and when, you know... And the writing include on it.

[00:25:25] Speaker 01:
I'm sorry?

[00:25:26] Speaker 01:
And the writing include on it.

[00:25:29] Speaker 01:
a way for us to contact you, a telephone, a address, an address, et cetera, an email address.

[00:25:40] Speaker 01:
Would that, in your view, be an unfair labor practice?

[00:25:45] Speaker 04:
No, you're right.

[00:25:46] Speaker 04:
Excuse me, no, Your Honor.

[00:25:48] Speaker 04:
It would not.

[00:25:50] Speaker 04:
And that's why we attempted to convey in our brief that contrary to some of the claims that the union makes.

[00:25:55] Speaker 02:
You sure about that?

[00:25:57] Speaker 02:
I was going to say.

[00:25:57] Speaker 02:
You might have just conceded something that you're not authorized to concede, contrary to the premise of the question.

[00:26:03] Speaker 02:
They can require the address and phone number?

[00:26:08] Speaker 02:
I just want to make sure.

[00:26:10] Speaker 04:
Your Honor, answering the direction of Chief Judge Garland's

[00:26:15] Speaker 04:
to answer his hypothetical and speaking for myself as counsel, that is my view of the act.

[00:26:19] Speaker 05:
Well, let me ask you a quick question, if you know from the record and your experience.

[00:26:24] Speaker 05:
If I want to join the union, do I normally have to fill out a piece of paper, my name, maybe my address?

[00:26:34] Speaker 04:
normally in my general experience, yes, there is some kind of paper that has to be filled out.

[00:26:39] Speaker 05:
The record here, you know, as to the level of variation that may exist among... No, I understand there are all kinds of variations, but of course my address may change, my telephone number may change, my name may change, so there may not be any duty to keep that up to date necessarily.

[00:26:59] Speaker 05:
So the problem is you get these 50 letters and you're trying to figure out

[00:27:05] Speaker 05:
A, are these people members?

[00:27:07] Speaker 05:
B, are they members in good standing?

[00:27:09] Speaker 05:
C, how do we confirm this?

[00:27:16] Speaker 05:
So one argument is, in response to Chief Judge Garland's point as well, if you make him burden of putting in all this information, filling out a form basically, that's also in hindering

[00:27:34] Speaker 05:
what ought to be the right just to say, I resign.

[00:27:37] Speaker 05:
And I guess what the union was saying here is you're in a union hall all the time, so you resign, you show us an ID, your driver's license, end of discussion.

[00:27:49] Speaker 05:
But the board says that's more than minimally required.

[00:27:54] Speaker 05:
And I think we're trying to parse sort of understanding what does the board

[00:28:01] Speaker 05:
think is permissible where it's saying the mere maintenance of a policy, even where it has this open-ended alternative, is too burdensome.

[00:28:12] Speaker 05:
And the only case they have before them is, I think, Mr. Reed?

[00:28:20] Speaker 04:
Yes, I understand, Your Honor.

[00:28:21] Speaker 04:
I just wanted to make sure, Your Honor, it's clear that as

[00:28:24] Speaker 04:
my colleague here conceded that many of the members do have reason to go to the hall, apparently, although I don't think this is in the record, but it's common that in the construction industry, many members have reason to frequent the union hall.

[00:28:37] Speaker 04:
However, there are, I think he said, about 500 members who are not in the construction trade, including, as just an example, Mr. Green here, who work at factories, et cetera, and who would not have reason to go to the hall, and who may live, for example, two hours away, as Mr. Green did.

[00:28:51] Speaker 04:
Again, I appreciate the Court's concerns and I understand that the Board did not rest its decision on a challenge to the legitimacy or the earnestness of the Union's motives.

[00:29:06] Speaker 04:
However, it is our view that the law makes clear that once a policy impairs a Union rule or policy,

[00:29:15] Speaker 04:
impairs a policy Congress has embedded in the labor laws, which includes any rule that amounts to a restriction on the right to resign, then that policy or rule is invalid and unlawful, regardless of the motives, regardless of the purposes.

[00:29:31] Speaker 01:
And as I was saying before, it doesn't require us to determine whether the board's view of impairment is reasonable.

[00:29:39] Speaker 04:
I'm sorry, the board's view of what?

[00:29:41] Speaker 01:
Impairment is reasonable.

[00:29:46] Speaker 01:
And doesn't the labor laws also require fair dealing by the unions with their members?

[00:29:56] Speaker 01:
And there must be some ability of the union to determine whether the person who claims they're a member really is a member.

[00:30:06] Speaker 01:
So this question of how far you have to go to impair is a question we have to decide.

[00:30:12] Speaker 04:
Well, Your Honor, respectfully, I think the question the Court

[00:30:15] Speaker 04:
has to decide is whether the board reasonably found that this policy... Yes, yes, yes, yes.

[00:30:20] Speaker 04:
And so, Your Honor, it's my view and the board's position here before you that this policy with these particular requirements went too far.

[00:30:28] Speaker 04:
It poses a substantial burden on the members in the exercise of their fundamental statutory rights that is inconsistent with the Act.

[00:30:39] Speaker 01:
Okay, is there any time left?

[00:30:42] Speaker 01:
We'll give you another minute.

[00:30:48] Speaker 03:
I'd like to make two quick points.

[00:30:51] Speaker 03:
First is the most relevant quote from the Supreme Court that's relevant to this issue that we must all adhere to and not forget to.

[00:31:00] Speaker 03:
And that's from the Schofield case, which is, the inquiry must therefore focus on the legitimacy of the union interests vindicated by the rule and the extent to which any policy of the act may be violated.

[00:31:13] Speaker 01:
I thought that subsequent cases, the court held and the boards held that if there's impairment, then you don't do a balancing.

[00:31:22] Speaker 01:
And I thought you agreed with that view.

[00:31:23] Speaker 01:
No.

[00:31:24] Speaker 03:
It's restriction on the ability to resign that you don't apply the balancing.

[00:31:29] Speaker 03:
So if you have a window period, so you can only resign 10 days out of the year, or you can't resign during a strike.

[00:31:36] Speaker 03:
Or we fine you because of a strike.

[00:31:40] Speaker 03:
But manner cases that talk about how to resign, like this, you've got to send in a writing or whatever, those are not per se.

[00:31:49] Speaker 02:
What about Felter, says you can't have a specific forum for revocation of the dues authorization?

[00:31:55] Speaker 03:
Now, in that case, they found there was no legitimate interest.

[00:31:59] Speaker 03:
Now, that was a dues deduction case, not a resignation, but I think they're the same.

[00:32:04] Speaker 03:
That was a particular forum that you could only get at the union hall.

[00:32:08] Speaker 03:
And they said that, you know, you can informally, because that was something that was in the collective bargaining agreement.

[00:32:15] Speaker 03:
That was not an internal union rule.

[00:32:17] Speaker 03:
That was a CBA.

[00:32:20] Speaker 03:
And they said, you know, the employer, rather than making everybody go down to the union hall, could just informally verify everybody's identity.

[00:32:30] Speaker 03:
And so with Felter, I mean, that's what we're attempting to do, is to informally verify everybody's identity.

[00:32:36] Speaker 03:
Now, because it's a rule, there's no employer involved.

[00:32:38] Speaker 03:
And given the nature of the work here, that is difficult.

[00:32:43] Speaker 03:
So the Schofield rule that's set out, the board has to recognize that.

[00:32:49] Speaker 03:
They can't say, as he just did, that we just disregard the legitimate interests of the union.

[00:32:56] Speaker 03:
Just disregard.

[00:32:57] Speaker 03:
And that's what the board did.

[00:32:59] Speaker 03:
They did not follow the Schofield rule, which is still good law, which we set out in our brief and perhaps excruciating detail.

[00:33:07] Speaker 01:
What about the decision in the Neufeld-Porsche-Audie case?

[00:33:14] Speaker 01:
Yeah, so in Neufeld... I'm just going to read.

[00:33:17] Speaker 01:
Thus, although the union rule was adopted properly and reflected a legitimate union interest, it was unlawful because it impaired

[00:33:26] Speaker 01:
the principle embodied in section seven.

[00:33:28] Speaker 01:
Right.

[00:33:29] Speaker 03:
And that was a total restriction on resigning.

[00:33:33] Speaker 03:
There was a period of time where they were not allowed to resign.

[00:33:36] Speaker 03:
I believe it was a 60-day window period.

[00:33:39] Speaker 03:
Oh, no, that's Bellmer.

[00:33:40] Speaker 03:
There was some sort of period of time where they could not resign.

[00:33:44] Speaker 03:
And we don't dispute that.

[00:33:45] Speaker 03:
That's the law.

[00:33:46] Speaker 03:
That period of time, we can't have a total ban on the ability of somebody to resign.

[00:33:51] Speaker 03:
And that's not even coming close to what we're doing here.

[00:33:54] Speaker 03:
And I'll say just to have a differing opinion on

[00:33:59] Speaker 03:
what this court is or what this court's going to do.

[00:34:03] Speaker 03:
This is the DC Circuit Court.

[00:34:05] Speaker 03:
This is a confusing issue legally.

[00:34:07] Speaker 03:
The cases are not entirely consistent from the board over the years.

[00:34:12] Speaker 03:
How they've dealt with it has not been consistent.

[00:34:15] Speaker 03:
And having direction that's beyond

[00:34:19] Speaker 03:
Just looking at this policy and coming up with the task.

[00:34:22] Speaker 01:
That's why I asked you whether there are any other unions with anything because we haven't been able to find any cases with any.

[00:34:31] Speaker 03:
Yeah, members don't usually file charges over these issues.

[00:34:34] Speaker 03:
I mean, they have rules.

[00:34:36] Speaker 03:
The went through a period of time where their rules were challenged.

[00:34:40] Speaker 03:
That's where the Sixth Circuit had ruled and the board had ruled twice on their writing requirement that it sent directly to the local's financial secretary.

[00:34:53] Speaker 03:
But where these rules exist, you know, listen, there's not a ton of people that are out there resigning, number one.

[00:35:01] Speaker 03:
Two, those that do don't have a problem with these little manner rules.

[00:35:06] Speaker 03:
And three, the only ones that I know that have filed these are the National Right to Work Foundation, not individual members, or they're on behalf of individual members.

[00:35:17] Speaker 01:
Well, they would be able to bring cases along the way anyway, so I just wonder why we're not seeing more.

[00:35:24] Speaker 03:
Because it's generally not viewed as a problem from membership.

[00:35:30] Speaker 01:
All right, we'll take the matter under submission.