unless dave mcclure and president handley of the international union this is set out a letter of december eighth by dependent lewis joins us mr mccloy or and permission and there were no standards as to whether or not this permission was going to be granted it district court conceded like the bargaining agreements a commission would be required and the agency was required to make every effort to cooperate for the granting of permission that collective bargaining agreement provision applied to union business where the union was on the employer's property talking to  responsibilities but it's also a business that is being conducted with the employer but in any case you honor the employer is off opening up its property and had traditionally and consistently opened up its property for grievances not it even if it had the right to take away what had been absolute ironclad custom people showed up at grievance hearings and took their own that would still be discriminatory  they didn't wait one second because i think judge each point is everybody agreed that they opened up their property for the grievance hearing the question is not whether it's open the question is whether you had to get prior permission or not right and so there's no doubt that it was open in that they had to engage in good faith efforts to permit it but what the c p a requires is permission was approved by the employer remember the employer scheduled this grievance hearing with the union the union had been approved for this purpose now they're trying to rate it is to say that  be approved specifically other union officers can come and go right now there was no bar from them but dave mcclure only was singled out in the provision that you're talking about is specifically one that refers just to what's say to me i'm certain what the labor lawyer say that union president is their true take part in a proceeding where they're union members and there's business that relates to the collective bargaining agreement is not union business this doesn't make any sense to me well the the main point here is that the union did get approval it was approval for the union to conduct  hearing is scheduled than anybody from the union can show up for that hearing there's not your reading of the c b s is that that provision doesn't require approval for individuals to show up it's like been within its rights right if there was a nondiscriminatory reason but that's that's correct correct except except in a situation where if they are claiming unbridled past practice gives you some sort of contractural access right your honor it's if first of all the collective bargaining provision doesn't apply to this sort of situation places like union elections going on to the union property and so on to its members who are there any safety hazards that's union business that's business that purely concerns the union this was business that concerns the employer is it that provision didn't apply or the only concern the employer in the  next even even if that apply and it doesn't and we never got the right to take discovery practice was and we would have shown that conclusively even if that applies even if it applied they can't use that right to discriminate or retaliate because of speech and the district court agreed they're doing this because they don't like what he's saying and what he was saying and it's worth thinking about this for a second what he was safety hazards in the baltimore metro link the speech which is collective bargaining speech protected by the the minimum or well unbridled discretion means it inherently inherently intimidates people into censoring themselves that's one the second is that it stigmatizes in this case and this is a different kind of injur to use the street term dest basically in a way that is very demoralizing to the local the local membership and interferes with their right to have their own advocate in there speaking for them and finally  any no not specifically but that's because if he had started down that road he would have been in a trap remember there saying oh very different mission and they refuse of course but it also increases his injury just by asking that's the problem with unbridled discretion you go in there and you start saying well maybe o regulate my speech in this way or not remember they had no standards as to how they were going to meet them they just said look if you want to come and affectively this is how we curb your speech and if you don't curb your speech well maybe you'll get in maybe you won't just ask us what standard were they going to use what standard  e they just told him that speech was the key and aside from the danger of self censorship aside from that danger he really would have discredited himself with his imagine if he had done that and  denied i mean that would really discredit it with his membership and there is just a general problem here in allowing the government to act in this arbitrary way especially well but you haven't you haven't shown us and this is whe you know we find him to be problematic and he's problematic because he threatened one of our hearing officers and so in order for that hearing officer to have a safe and comfortable work environment we need to have armed the guard in the room whenever this mclaurin guy shows up maybe that's a good decision maybe it's a bad one but that's part of their relations with their hearing officer and so they say listen we will make clearer to give permission not because we're going to deny it in fact we're going to give it to him every single time but when he asks for it so we know in advance he's coming we can have a hearing guard that's in the room with him so that if he starts to verbal ear otherwise assault this woman who has complained about it that we can we can have somebody there to protect her but that seems eminently that's a hypothetical i'm not saying in this case but if that was the hypothetical you were a human is can't do that either right your honor what the employer did for purposes of this is a good engaging reprisal against him because of speech he would not have the right to speak it made a truth he would not have had the right to speak if he had thrown over the that a hearing officer in my hypothetical reasonably believes is threatening to meaning at the moralizing in this listen i'm not going to be there without somebody to protect me i want a court room deputy it's going to be there any time he's there  and as a result of that m t a says listen you know you got to get permission because we have to arrange an advance to have somebody there because we find you frankly to be threatening  some violent activity wouldn't have i'm not saying i'm saying gays in exactly what happened here oh no no what happened here is that he's saying he engaged in what happened here what the state did but what he  you have the lawyer of the here in examiner hearing from this employee and in response to that the employer takes this action your honor i'm not of time you know you can answer the question  the answer the question is that if he crossed the line and engage in some violent activity after saying what he did and what we're saying to you is the only thing that's changed is what the employer and the employer did because we're going to make we've got to be somebody from the police but we're going to put one of our guards in there because all state agencies now have guard we're going to have one of our guards in there just securing the he it makes the the the hearing officer more comfortable it no would that be a violation of his first amendment right yes it would be if if the facts were as we have alleged them in this complain because there wasn't a legitimate basis they never identified a specific threat against or all they said and i sorry i didn't have time to get into this and there are all he said all he said and this is what everybody agrees he came in and tried to withdraw a grievance he tried to withdraw the grievance and and she wouldn't let him talk she said we're going to have the grievance hearing anyway he said i'm trying to tell you he's withdrawn the grievance he never got it out and she said sit down shut up you're going to have this grievance hearing he said you don't know how to run a grievance hearing that's not the basis for an employer to put an armed guard in this is not a hearing officer this is not a neutral person this is a management represent lower level management representative step to grievance hearing not a neutral the employer there that it was such a contrived set up and it was legitimate first amendment outrageous and it was because of his speech because of what he was doing publicly shaming and i know that the court wants to sort of go past this but they expose extremely serious safety hazard which we have been on the front pages of the baltimore sun and other papers and these defendants were really really really mad and if the court takes this case out of that concha and out of the district courts concession the district court was in extent in membership that as i understand the self takes men of scale so what's your response to that i disagree because first of all if you had called the labor relations manager that didn't need to occur in front of anyone no one needed to even know about this particular requirement for him if he had just comply no one might be even known me at anything and he's special consideration for his entry into the property but out in addition to that remember his stigmatisation that he's claiming is not running from the phone call himself itself that single phone call is all that's required and there's no evidence that any three quest for permission would be to not therefore for that reason any assume signification simply doesn't  it could be a private conversation and now if there is no substantial infringement on an individual's ability to speak or a chilling of an individual's ability to speak the retaliation for circuit said the jail warns motives were irrelevant because simply withdrawing a special accommodation and leaving the paralegal with the same rights as any other individual didn't rise to the level of versity to support retaliation now the plaintiffs claim in their amended complaint that david mcclure has the same rights as any citizen to visit restrictive government property after the government action however the court can also consider the actual plaintiff's response to the government action in considering whether it chilled speech well the small person walking expect on restricted access to government permission m t a shall use every effort to cooperate with that request for any legitimate union business and there is not an instant in this case that a reasonable request was denied now as counsel did admit mcclure never actually fulfilled the instruction to call one of the two individuals were authorized again to permit his access into the into the sensitive areas therefore they simply can't say m t a had areas we're talking about with the meetings we're talking about they often occur with in offices within workshops and within manager's personal office suites which are locked and not up in these areas the the government has the broadest possible discretion to exclude individuals and provide permission but as stated m t a has contractually excepted limits on its own authority to exclude by promising to  cooperate and there's no evidence in this case that has not occurred and in any any allegation of bad faith simply has no basis in the record even individuals entering these restricted areas now it is true m t a has been intelligent in the past and has granted standing permission to union officials to enter the property without providing specific notice to an individual now of course they should contact the manager on duty before entering however this specific requirement issue was only imposed on david mcclure because of very specific in occurred in which an employee followed a complaint about this threatening be ok you tell me what happened based on the record we have before us what happened after that hearing as any other union officer or any other individual before this matter came to the attention of management mr mcclure did have an electronic access he that allowed him to open locked doors without management's knowledge now that cart had two individuals had not had their card shut off for when they left after each service so they maintained the keys they had when they were active which limited to the areas where they had worked previously but mr was notified that all full time union officials when leaves of absence will not have any personal so i don't know what that means is that mean that the three people who are in the two others that have more limited but still thing allowed you to enter management facilities whenever you wanted is that basically right i'm if you have the key to the office yes and  obtained permission to come onto the premises was that rescinded yes the specific permission to call one of two individuals now of course without the key you would still need to knock on the door and make a telephone call to enter so but that once once the hearing examiner left for instance if he came on the property and had not asked permission first would he be considered a trespasser no ok and and not and not right that the record does reflect this idea that at least one of the reason that was happening was so that they could place a guard in the hearing room with  i mean depending on the behavior that would be possible that's not in the record  so do many other people vendors i don't know other people that are not in non employees know you're there it's possible a particular vendor would have access to a sort for deliveries but not expect and indeed employees their peak are generally is limited to their work area so if you're assigned to whatever it is based three i don't know what in jail looks like a three year access a three limited you got access to the other  not followed the instructions only then on two occasions after miss mcclure had failed to follow the instructions police were called and only requested him to leave the premises which he did without any conflict there was no arrest no criminal charges there is no conspiracy to go out to get some who are purely on this record if simply refused to follow reasonable instructions that were not a large burden on him to enter upon who were the or the baltimore police officers or agency police officers one was a transfer to ministration police officer when an incident occurred on tran property another was the same as m t a yes all right and sat in there was a member of the police force from the department of general services which owns the office building where the main administrative offices of the agency are located and some employee meet in that case the general services police arrived in a different agency from the m t a yes so when you enter this building is there in you have to go through security yes there's a guard desk at the main office building controlled by the chaps and individual members of the public office now david mcclure seemed to argue that he had the right to enter for whatever reason but the supreme court has said adderly versus florida nothing in the constitution prevents an for statutes against those refusing to order to remove themselves now in that case individuals were protesting on jailhouse grounds and they claimed that they were immune from trespass laws because they were exercising first met right well the supreme court disapproved disagree and of replied the often start with proposition that constitution does not provide individuals the right to speak whenever however and wherever they please and mr mcclure had no right to do so in restricted spaces without the authorization of the agency that you can ask you one other factual question now mr mcclure doesn't have to call  answer is that correct not specifically what he may not receive it generally does he have to if he enters a gate or a lock or a door or he would have to call someone but there's no specific requirement placed on him to call an individual to be permitted on the property and in and is that the case of everybody that comes in the property so he's treated like everybody else in that respect that per your honor i do have some time if you have any other questions i believe we've covered all the areas ok if thank you nothing further thank you very much consent or prior permission and the second is that in the record that your colleague has just told me no he's be treated like you like everybody else it's not and it's but there are there the statement that he gave it's not in the record injunction hearing on the ground that this you know holland brown had retired conveniently so they were withdrawing the policy therefore there was no need for a preliminary injunction since then he's been able to go on without getting any permission just as he had before and not factually true and that's one of the reasons we were trying to did it take discovery the district court denied our right to take discovery so we could have made that record and if you read this provision about union business it is it will show the union's position that this paragraph relates to business conducted an m t a property or m t s a time without the permission of the department at they're talking about employees being on the clock being paid by m t a while they are doing union business and that requires permission the second paragraph first officer is on leave and no permission is required from them over that the second union further agrees that its officers while on leave of absence mr require shall comply with all m t a regulations for tuning entry into any part of and premises vehicles or other property that's the provision that applies to them this provision up here is about getting permission for people who are active employees to do union business even though the employer is paying while they're doing that and and in that case there is a provision that says it's understood that every effort should be made to cooperate with such a union such permission for the purpose of a legitimate union business and that union business was union elections preparing for grievances looking for safety violations like mr kerr was trying to do it's just not true that this provision that ever been applied ever been applied to it union officer who was on leave was coming in to conduct a grievance series and that's why we were trying to take discovery to show how how iranians this is we were denied that right and we're in this position in the court of appeals where the court is trying to guess what how a labor provision was implemented or what it's supposed to mean i think it's clear on its face but it does need some