understand about the case just because of lack of familiarity with the way the union works so i need your help sure if i understand it correctly there are two groups within the of this union who have two different collective bargaining agreements is that right that portion is correct they are all equal members of the hall but there are two collective bargaining agreements greg when you say the hall that's an important part of this obviously but yes the technically as i understand it the it is the international longshore and warehouse union and then there is the the something reasons are the international longshore and warehouse union local thirteen allied division which your clients were members of and the international longshore and warehouse union local thirteen is that correct partially the allen division is part of local thirteen there including ok and and and but when you speak of the hall is the hall operated i'm going to call this the mother union for one of a better term ok so you've got basically is it two divisions of the mother union is that what it do collecting business operating you can have a days or something filed with the state of the federal government that organize staff entity i mean i'm not sure of what their organization is with the state but i'm sure of their structure a unit so i know that they operate within the state of california i'm not sure what documents they would filing and that allied division is that a separate entity or is it simply a name that used for a certain number of people that are part local thirteen it is definitely that it's just a name used for a certain number of people and i want them to longshoreman division if you want to call it that is the same thing right it refers to a certain group of workers as well that's correct and the union of the hall the hiring hall when i looked at your second amended complaint in my excerpts of record it did not look as though the collective bargaining agreement was stapled to it as an exhibit in incorporated by reference in the complaint is that right i me tell you why i'm asking this you'll be able to throw more light on it i don't quite understand how the judge got to considering that section six job writes if it wasn't in the complaint and it wasn't a rule fifty six i would think under rule twelve b six the judge would just be deciding on the complaint and if this section six was in the complaint there couldn't be a twelve be fix determination that no cause of action was stated it sounds to me is so you don't want the case to go off on that ground level just go back and it decided the same way so you don't really want us to decide that you win because at the complaint the allegations of the complaint did not provide the basis for the dismissal if i got this right you do have that right you do have that part correct and i definitely don't want you to die on that basis they want you to decide that there is sufficient facts for them to maintain the cause of action with the complaint and proceed with the litigation ok now let me ask about section six no member employed within the jurisdiction of the division shall have any right to a job under any other collective bargaining agreement the local may be party to the house if i understand it right this whole case turns on whether employed means currently employed or employed means you've generally or in the past been employed if it means currently employed then as soon as your guys lose their jobs with their division they're entitled to jumped to their place in the line by general seniority in the local with the other division is that right that is correct and the other side says employed means that's the division where used to work even though the employment has shut down in that division or been contracted so now you go to the back of the line for seniority in the other division and then present right that is correct i'm trying to find out if i understand the case no you're doing just fine in addition to the second argument however even if they were given that interpretation their interpretation then employed means if you were ever in floyd the second part of section six says we still have the discretion to transfer you so even if you're employed whether or not you consider employment ever employee or whether you know you consider employment i had been employed and now i'm unemployed either way the transfer can happen is there any extrinsic evidence that either side is a s s to work you have to figure out what employed means  to if you will be a beneficiary of participate in the hiring hall what do you have to do in order to be eligible to participate in the hiring hall it's depends on where you are in and as part of the six allied division what what is  ally division union member has to do what requirements must he or she meet to be able to participate in the hiring hall run by local thirteen well at the point in which they're part of the hall you have to be a member in good standing  paying member of either division of the division to be part of local union thirteen ok now and i again i'm trying to understand these distinctions here because they're leading suggest that only the longshore men's division was entitled to be part of this higher paul you're saying that the allied division members had an equal right with the longshoreman to participate in the hiring hall is that correct that is correct and part of the reason why i think it's helpful to look at it from the statue of what happened was is that the union like most unions will seek out workers to unionize be part of their collective they did that with the allen division they actually came out they you know courted them sort of speak to  today i can see that are here did they meet whatever requirements existed to participate in the hiring hall yes they did they didn't what specifically are those other than being a member of the allied division in this case you would have i think your school is raising our so i have a question for you yes i don't really understand how on this record we can make determinations of fact as to what is intended by the regime and so might my problem right now is seeming to me that all we can look at is like and if the complete stated a i understand your question i believe and just tell me tell me am i missing something it seems to me that your and part or maybe all the questions of the other standpoint the issues of trying to explain it was only for the benefit of the judges trying to give them the knowledge necessary i think given what you have of the complaint and the facts stated along with what i've read i think there is nothing evidence there for them to maintain in action so i think there's sufficient evidence here for them to have a kind and that the claim should not have been dismissed with prejudice i think they should have been given an opportunity to proceed with this claim or at least at the very worst as i was the second part amended to have another cause action based upon these things that i just think that it should not have been thrown out entirely that is that my contention before y that this planet so what's going to have to happen may be that it goes back and then the district court construes the constitution and bylaws and just a quick level that may have to happen and at the lower court they can do that once they actually are looking at the case on its merits and if you're over time we've burned it all up with questions pay attention to the other side's argument anyway because interpretation of the constitution and bylaws i believe it was based on that but it was also moreover based on the type of relief that they're requesting how could the district court base a decision on the constitution and bylaws if the instead of satisfying my concern improviser because under twelve v six it's supposed to be a decision on the pleadings and if you attach a declaration with exhibits to a motion that would ordinarily be motion for summary judgment and i'm a little concerned we've got something that looks kind of ambiguous in the constitution and if it were frankly labeled as a motion for summary judgment we might have some extra evidence that helps the lead appellant and named in the case but i think what the district court was more getting towards wasn't that there wasn't just the interpretation of the constitution and bylaws but more so that what the type of relief that the that the appellate were asking for in with respect to the constitution and bylaws was illegal i don't get it we review de novo so we're not allowed to defer at all to what the district judge thought and frankly i don't get it i look at that section six job right these people are all in the union at we're all equal in the union as far as i know it says no member floyd within the jurisdiction of one division has a right to a job under collective bargaining agreement in another division and it seems to me i can read it either of two ways if you have a child you're not entitled to jump from one division to the other just because he had life good job in the other division better but if you don't have a job then you're a full member of the union the other way i could read it is at if you've been working in one division then you don't have a right to preserve your seniority and after beijing when you jump to the other one it just looks to me like an ambiguity what am i missing here i think what you're missing i where district judges have discretion doesn't mean they can do whatever they want there has to be a fair and reasonable exercise of discretion justified by what they say and sometimes we reverse for abuse of discretion i think what i think if we get back to what you began with with palatal argument i think it would clear things up which is that there are two separate divisions there's the law short of vision on the one hand and the allied division on the other hand and the separateness of these two division is what is at the crux of this case the do you agree counsel that as your co counsel indicated opposing counsel rather that all the union members in the allied division are equal numbers with the members of the long short a vision if i can call it that in local thirteen is that accurate it's accurate with respect to just being members of the union but it's inaccurate with respect to the differences between the two teams which are which i want to get into i understand before you get there your question here with the lucas case and you know about the duty of fair representation to encroach all applicants right do you agree that on the face of this complaint which is what both of my colleagues have referred to are looking at the face of the complaint even though it's poorly drafted frankly it does in fact contain sufficient allegations to state a cause of action and whether it'll prove up in a summary judgment let me give you a hypothetical union they go out and they solicit a lot of people to join the union pay dues people pay their dues which are pretty substantial and they want to tack comes time for them to get jobs the union only gives people we laded to the union chiefs agood places on the list or it gives people who are the right kind of friends the good jobs and everybody else gets the two day jobs you have to travel for and then you go to the bottom of the list i thought a whole lot of the point of the duty of fair representation body of law was you can't do that they pay the dues you got to take care for me going to represent him you can't just say well that was your collective bargaining agreement that companies gone tough luck pay your dues you get nothing that is that is not what's happening here and let me give you a different example that might be a better when we're talking about is not necessarily what's happening on the ground that's more of an issue for the trial court but on the face of the complaint which is what we're dealing with here in a twelve b six motion it states a cause of action does not however poorly drafted it does not get a cause of action because there is no duty a fair representation with respect to the pm the job that these people want to get the job the people want to get are with the pacific maritime association they are not a party to that to that collective bargaining agreement the duty of fair representation council apply to all union members all dues paying your right to the bargaining unit with respect to the employer that you have a collective bargaining agreement with so for a different different hypothetical situation the us steel workers they they represent a lot of different industries one local within the us steel workers could represent people who work in a steel mill they can also represent nurses at a hospital right what happened in this situation is if the hospital goes out of business now these nurses are saying i want to get a job in the steel mill because we're both under the same umbrella if you look at the separation of the divisions they have completely separate employers they're completely separate collective bargaining agreements they have different do they have different officers they have different meetings they have completely separate meetings and i think we understand that council like i guess my point is that those issues would be taken up either in a trial or on summary judgment we're looking at the face of the complaint and on the face of the complaint perhaps because of it's very in artful it has to be liberally construed but you look at the face of the complaint and the union has a duty of fair representation generally to its members now you're probably going to be able to show in the trial court exactly what you're why that's why there's no that's why the court before i bring up and that's where i hang up frankly i know that most of the cases talk about the duty of fair representation at with reference to the collective bargaining agreement because most of them are  said of the grievance process as the boss fire somebody he's in the union the union says we're not going to represent you we think you're a lousy employee too so he sues the boss and the union and says as the employer wrongfully terminated me in the union breach to sue the a fair representation to me in those cases the whole decision is written in terms of a collective bargaining agreement however when the supreme court roads baka versus site back in the sixty's it said that the duty if there were a presentation was developed years ago in a series of cases alleging racial discrimination by unions and under this doctor and a fair representation for the union statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility of discrimination toward any to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct now in this case the issue was not really whether the union fairly represented plaintiff workers with respect to a particular collective bargaining agreement but rather whether it represented them fairly with respect to all the collective bargaining agreements it had their beef is our jobs ran out you've got other jobs but you won't say and following up on judge kleinfeld held a reading from the the lucas case says in defining the scope of the duty of fair representation the court referring to the supreme court has held that it in quotes applies to all union activity including its operation of an exclusive hiring hall so again given that standard not tied to the constitution but what the supreme court says about labor law again i'm struggling with how you can say that a cause of action has not been stated i'm not face of the complaint if you will i mean there are two reasons why the first reason is because if you look at these cases if you  cases that we cited and if you look at the standard that you pull out of these cases in the context of the law what they're saying is this is only with respect to the collective bargain agreement that they have with a unit they don't stay with the entire membership they only stay w bargaining unit the allied division is a completely separate bargaining unit than the long sort of vision fame and union local it's the same local but it's a can differ bargaining unit that sounds like a lawyer who takes on clients with conflicting interests and he takes their money but the one with the smaller cases it's not the same it's their community thinks produced from both and then tells the smaller group tough luck but they only put the union only represents the bargaining units interest with respect to only arise with respect to a bargaining unit and the employer and not the internal affairs they're not citing the collective bargaining agreement they're only citing the constitution they have no right the out the appellant have no right under the pacific coast longshore contract document which is the collective bargaining agreement between the lost or division and the and the long sort of vision and their employer which the alley division are not employed by and if you allow me a chance to get to my second is if their third party beneficiaries of that collective bargaining agreement and that's going to paragraph twenty six and it doesn't say any of this stuff it says defendants refused to put each plaintiff on the hiring hall left inside of the normal order a casuals longshoremen a quirk despite the longstanding practice upon information belief there were employer requirements for additional workers above and beyond the casual longshoreman available during the two thousand and one two thousand and four period it seems to be saying nothing about the c b a's the collective bargaining agreements if you're seems to be saying we're members of the union you wouldn't put us on the way that's because they're ignoring what the statute says is the six you can get to that in the summary judgment situation perhaps but on a twelve b six situation you've got to look at the face of the complaint see if it states a cause of action liberally construed and my concern is i don't see the distinction here why this poorly drafted complaint perhaps even by its lack of specificity helps itself get around this hurdle it's a very broad duty the duty of fair representation local thirteen is the mother union it represents both these people these folks have been paying dues and i don't see the distinction at this stage you haven't told me anything different you talked about the sub parts and about how it actually works which is a separate issue at a different point in the art in the litigation these people these people are trying to are pleading for rights that they don't have and that's i mean that's the crux of the case that they don't have a date on the time they say they don't have them in the true and lucas says it applies to all union activity not just with respect to collective bargaining agreements if you look at look it's with in the context of the of the of the body these employees had been if these union members had been put on the hiring all that and they had been hired by p m a with they then have a have rights under under its bargaining agreement that wouldn't be able to happen because that would be an unfair labor practice by the union because they would be hiring these people and placing them in the longshore division above and beyond nonmembers of the requirements above and beyond the casual and longshoremen available what would be illegal that the problem i'm having is that a lot of the arguments that you're making i think may be absolutely correct but that an orderly procedure would be that the district court would have the summary judgment motion and made findings of fact and then we could evaluate based on findings of fact and conclusions of law whether there was any genuine issue of material fact and if there wasn't your client's when but if there is then there needs to be a trial i don't see how on at twelve thirty six motion the court could reach the conclusion that you just stated that these these union members couldn't be hired without it being an unfair labor practice so that's the problem i'm having right now i think if you have a response you should state it even though i've taken you over the time ju you know could that could the judge reach the conclusion you asserted that to hire them and hiring all would be an unfair labor practice on the face of the complaint without making some finding  fact as to how many you know longshoreman or available for the jobs well i don't think we even get to that point because the because before you even get get to a transfer you would assume that these people have rights under the the collective bargaining agreement that the launch that the long sort of vision has with the p m a which they don't but they would have if they were hired by the i think that on the face of the complaint will two things one you don't get to that first of all if you look just look at the constitution we still have we're still granted discretion local thirteen still granted discretion not to do that we don't have to do that and what they're alleging is that something bad happened here because we exercise our discretion but second of all i believe that you wouldn't get to that question either because those are still rights that come out of the p c l c d i think i understand something that you said now and that i didn't understand before let me test it out with a simplified hypothetical case judge gould question brought it out for me let's suppose a union has members it has one collective bargaining agreement with the general contractors association or something at one union one collective bargaining agreement the collective bargaining agreement only gives rights to people who are employed pursuant to the collective bargaining agreement the union decides all whites go to the head of the line all blacks go to the back of the line if i understand your argument correctly the blacks might have various civil rights complaints whatever but they would have no claim for breach of the duty of fair representation because they had no rights under the collective bargaining agreement since rights under the collective bargaining agreement only attach to people who are employed pursuant to the collective bargaining agreement and the union sees to it that they never get jobs have i got the logic of your of your argument right because in your example i think you'll have it took the example from that supreme court decision you understand in your example that you the black employees are still part of the bargaining unit even if they're not members of the union they're part of the bargaining unit because they're being employed by that employer in this case we have two separate employment ever been employed by this association employer in my hypo but you if you ever got a know they've never gotten an hour's wages just the union puts them at the back of the line will get hired but they're still part of the bargaining unit because they're trying to get you to work at that they're trying to get work there we reserved a minute for y thinking what i want to stress is that what does happen here and a further knowledge than could be seen from the face of the complaint looking squarely at the face of the complaint you cannot  the twelve to six motion granted the extensive argument into the interpretation of who was employed was not employed the ensure petition of where the collective bargaining agreement fits in is all beyond the scope of what's on the face of the complaint the face of the out is that there is not the support given to say that it is squarely only looking at the collective bargaining agreement that we can get the duty of fair representation it has been clearly stated that the duty for represent their representation applies to all has submitted united states versus action two submitted next year united states versus thomas