reserve decision the final case set for argument today is called a rare up versus international longshoreman's union local one number eighteen twenty two fifty four thank you all right morning your honor we have a case here that was dismissed by the district court that had two distinct claims in it one had two subsets the first claim had to do with the union coercing the discharge of  my client mr calderon and then there was an improper discharge claim a large versus the employer global which is called a hybrid claim the facts here is that the plaintiff had a this is has alleged in the complaint because  motion the plaintiff argued with his shop steward about allowing no show jobs the steward walked into the manager's office and said i don't want him working here anymore check him out three days later the president of the company said after today you're not getting here anymore in mid december he came back for a couple of days he was told that his his name was out of the system he argued he got to work for two days and on the second day he got what he received what was called a no hire letter and he didn't work a and the union had a joint labor management committee meeting where they considered this particular issue by saying we're going to consider this even though there was no grievance filed because the the the mr felt why file a grievance notice that this was some sort of evidentiary hearing there was no notice that the claim against global was going to be considered at that meeting you represent that i was there at the meeting but then nobody said there was no notice there will be an evidentiary hearing be prepared to have witnesses and evidence to present it was simply as step forth it was the next step in a grievance appeal procedure the only record about that hearing about what went on at that hearing was my affidavit that said there were forty minute a meetings and then if there's a disagreement at the second step it goes to arbitration but with respect to the so the key here really is respect with respect to the global claim in the claim against the union which wasn't appealed to those bones we allege that mr fallbrook walked had an argument about no shirt jobs walked into the office said i want this guy checked out the president of the company said you're not going to work here anymore and he didn't work he worked there two more days got a no higher letter and didn't work there anymore so that's that's the allegation that we made we said the union caused the employer to terminate his employment and he didn't file a grievance about it how does that taint the proceedings of the l because the people and as as this court said in the i think there's a case exactly on point the heller case hiller versus liquor salesman's union three thirty eight f second seven seventy eight where the union and management are allied again are allied against an employee he doesn't have any obligation to file a grievance and exhaust the grievance procedure because he knows the union is on the other side the union was the one and he had already sued the union he was already in court against the union he hadn't appealed the fifth to stretch to that yet again but again just to make sure i'm understanding correctly what you're relying on for as evidence of collusion in educating grievances later on is the altercation that occurred in september and then the company owner the g c t owner or supervisor level person saying something to your client is that right saying you're not going to work any more not just something but and to us that didn't that relieve him of the obligation to to have to pursue it through the grievance procedure and this committee considered it even though he hadn't aggrieved it through the grievance procedure and then the judge deferred to the with respect to the employer deferred to their decision which and then when we allege that that meeting was wholly hostile unclear who was who is who in the room she said i can't consider i wasn't in the first amended complaint but the person in a complaint predated the meeting by five months and this this proceeding happened subsequently so the judge treated it like a summary judgment motion not like a toby six and one other question you alleg filing a grievance as to the termination would have been futile that excuse your client from exhaustion requirement that he filed twelve or thirteen other grievances so then there was a second claim which had to do with not being not getting work assignments like he had been getting before in line with his seniority there what there are two elements to that one is that the union was coerced and the employers after he had the argument about no show jobs to not give him work the second was that it violated the contract that he was supposed to get those jobs anyway no matter what the union said so he filed grievances with respect to the employers partly because i advised him to do that and it created a record and the the judge did not consider the ruling of the labor relations committee with respect to that because there was no they weren't ruling on whether the union did anything right or wrong they were ruling whether the employers to do anything right or and we didn't sue any of the employers over the job referrals and what complaint with regard to the coercion that you just reference we said that immediately after meaningly after the argument with full with full brooke so he got sent back into the system where he had to go cheap every day and get a job that he started getting a hybrid claim against employer g c t and local one the nature of the industry as described in the complaint is that there is various different local unions who a quarrel with the shop steward there was allegations in the early complaint that the shop steward was the same as the dock boss that has now been clarified the shop steward is simply the union rep and he has no control over hiring  three months and in the interim he was working he worked obviously a few days later when he got chastised by mr price he worked in december when he in the  yes ma'am there it is a lot of ill ability to work all over the port but he seems to have a relationship with the c t o that time that he was working frequently for them i'm sorry i thought the records show or his allegation was that he worked only three days for them in december well he may work for other employers in the port during the time it was g c t was only a few days and looked like it might have been a mistake even though you're correct that he  kind of collusion or you know the union giving a sign to the employers that he was causing difficulties and so don't hire him and he alleges this altercation the do not hire letter and some proximity in time the judge reggie is putting up between the september fight the december letter and reduced employment at t c t so why isn't that enough of a basis for us to infer that there's some withdrawn and that as perhaps the reason why he didn't file any grievance but based upon just the complaint it's not enough just to say that there was a three month period between a lowly shop steward having a word with him in the un come was also that someone of that seniority had told him you won't work here again now the allegation was that the management mr price told him you're not going to be working here that was a few days after the december and the allegation about the reduction in income can be caused by anything the board is allows people to work throughout the board for different employers they can decline jobs on occasion and then the business goes up and down so it's just not enough to say that there's a reduction in income therefore we can infer collusion between the union and the employer when the union has no control over hiring or that yeah i suppose you do the argument is that these no contracts control over hiring or assignments but that there has to be some behind the scenes and fluence by the union the employer and said get rid of this guy and then the the firing it happened the next day because of the had then and the union had not pursued in the grievances for him and not hearing the grievances then there might be more of a claim but that's not the allegations the audition is was that this low level is chops to order one situation had an argument said check him out there's no allegation he was checked out he was hired a few more days three months later he is terminated for another reason the discussion off the record at the in the conference said that that letter was withdrawn and also there's no allegations of specifics about any other agent offs or employee of local want its records to void the allegations the void i mean  was named as a defendant but he's not named of having any sort of influence or any sort of details thank you thank you very much you have two minutes rebutt court my name is ian warmer i'm here on behalf of the one key fact that i'd like to point out that i think needs to be addressed is that it's a multi employer bargaining association and a multi amp and multiple unions that there is the international union as affiliated with the local which in this case is a local one just because there is an issue and want with one employer or one local doesn't mean that everyone is arrayed against mr called the rare the facts of the matter are th decision was decided by no members of local one there was no one on the panel it was a hearing decided but set up pursuant to the terms of the clock the bargain agreement and the court has as judge probably found below was required to defer to that decision grievance ever followed concerning the september two thousand and sixteen incident nor is there agreements follow regarding the december thirtieth two thousand and sixteen incident the contract specifically says that any agreement has to be proud within one hundred eighty days of the event if it's not brought within that time period it's waived so that was just and if affirmation by the other see that these specific allegations relating to mr calderon are waived and there was no decision that was even necessary beyond that as a as a relates to the second question concerning the scope of the job assignments it was a question of how the employer did to analyze the collective bargaining agreement the collective bargaining agreement provides the employers in the port of new york new jersey as well as all the not getting hired or any more quote when appellant was asked why a price responded that he didn't have to give a reason no formal discipline charges reprimand or opportunity to clear his name was given to appellant in mid december appellant was assigned to work with local or plaintiff assigned to work a global when he arrived he found that his security card would not work to get him in the building he spoke with the director of safety and security who told him that kevin price had directed him to take a pill and out of the system he was then allowed to work for two days when he was then given a no do not hire letter c he wasn't given notice that he was and peering in front of this body to talk about the firing of global and it didn't even come up at the meeting is no evidence at all about how this came up the letter about the l r c meeting doesn't say did he have no obligation grievance procedure until the point where he realizes the union is about to to give it to him he doesn't have to pursue it this court said even if they let him have a lawyer in the hiller decision even if a lawyer is allowed to go to this the this perceiving of that that's a provision where you can bring your own lawyer there as long as the panel is made up of union and management you know you don't have to pursue the grievance procedure you don't have to spend your time but most important with respect to the l r c it was opposed to first a min event with no factual development all that was put in was the decision and the letter telling mr calderon that there was going to be this meeting we don't know who is there council says oh it didn't have this union it had that unit didn't have th for the referral on the referral issue on the job assignment issue and we filed it as a separate complaint and then i decided that it was that in fact there was the issues were too complicated to to do at that point so we didn't pursue it we withdrew it voluntarily but the claim against the union that immediately upon fighting with fulbright and and accusing the union of allowing no show jobs and you're talking about the longshoremen's union which the court can take some judicial notice about that he'd tell you he said why are you pursuing these no show jobs and the people who don't show up to work and fulbright said get this guy out of here or he's a trouble maker and then he and then immediately after that he starts getting referred to lesser jobs with people who have lower seniority he stops getting his overtime assignments and he said the union that it occurred immediately after with not months later and then attached to the complaint our example after example after example it's a hybrid you know now we know hybrid cars wrongful firing and wrongful union actually i understand riding along the road to get i was missing anything thing very good i think we have the arguments will take the matter on advisement we have two more matters on the calendar for today