ahead sir thank you this case involves the rights of union members under federal labor law to free speech and due process within their unions and the right to be informed about that law by their unions  impression and what everything in the record indicated was that he was being charged with an actual violation of section three or two of the path hartley act if we have been on notice that he was also being charged with violating the spirit or intent of that statute there are a number of arguments that we would have made that that were not advanced for example we would have explored what is the spirit and intent of that provision and half heartly and there's supreme court precedent as well as third circuit precedent that we would have caught the attention to that says the purpose of that statute was to root out corruption in collective bargaining by prohibiting payoffs bribes extortion that kind of thing and that was not at all the case here if we had advanced that argument i believe it would have been successful because the at the beginning of the second union hearing the union itself conceded that the conduct that night and gauged and was not bri  or corruption or anything of that ilk well let me ask you this along those lines i thought that the i always pre hearing submission so this is the second time around accepting money not in surprise was during the second union hearing itself we examined the vice president heller who actually brought the charges against against night and he himself acknowledge d that that in order to violate the conduct detrimental to the union standard there either has to be a violation of some other provision of the union contract some other specific provision or there has to be a violation of federal labor law those are his words there has to be a violation of the law that affects us all i think well did they say in the acceptance of the five hundred dollars i didn't have to be honor i won't contest the fact that there's not some evidence a sentence year sentence there that that could support the result reached by the by the union in the second hearing but the district court found as a fact is the whole notion of spin and seems almost like a red herring and you know it began with molen but it seemed that the ira from the pre hearing submission forward was pretty consistent in saying no it's conduct arguments to me that today we would have made those arguments i think those arguments were strong arguments particularly in light of what the purpose of the act was which is to stamp out corruption and the aisle a itself acknowledged at the start of the hearing of the second hearing union hearing that that's not the kind of you know whatever night did it wasn't corrupt accepting the the donation was not in any way an attempt to interfere with  honest collective party put spirit and intent aside for a moment is it your position that the charge of accepting the five hundred dollars from mcbride is not a violation of thr hundred two applies to private sector employers and the port of wilmington is a public sector employer and it also talks about union officers whose members work for the employer and in this case the members of any knights local work for private see that are companies not directly for the port so there was in fact no actual violation of the statu supporting the judge malas conclusion again the district court evaluated this found us back that the preponderance of the evidence was that there wasn't clear charges that did not that and that the the secretary treasurer went on to say so it doesn't matter if there wasn't an actual violation as long as it was taking money from an employer that's conduct detrimental but that's not in fact with that letter says the letter rejecting the appeal says well the appeal should be denied because it was other conduct that constituted conduct detrimental to the union that other conduct was soliciting a contribution which did not happen and the not that was not the topic of the second union hearing and third that night had allegedly used lay's logo in violation of article twenty seven of the constitution but of course this court back in two thousand x two thousand and six ruled that article twenty seven was facially illegal under the l n y d a because it it's over breath interfered with union members of freedom of speech and of course that was not a basis for the  for six months last substantial back weight lost wages for the period of his suspension and the district court initially abstain from any stain from evaluating the  on the merits that article twenty seven violated the free speech provisions of the day because it was unlawfully overbroad and unreasonable so that pulled the rug out from under the district courts an initial ruling that night was not entitled to back pay union officers as the judge was correct if this were purely a due process case and if there were no first amendment or not and for him there are no freedom of speech issues in this case the district court would would have been correct back is not available to you know officers removed from office however the supreme court of law is very clear in the sheet metal three cases that i inadvertently omitted from from our briefs and i want to make sure the court is aware of these three cases all stand for the proposition that under the sheet metal workers versus lynn standard the reason for the elected officer is removal from office does not have to be exclusively a free speech violation as long as there is a free speech violation in the picture that meets the sheet metal worker standard the three cases are all circuit and the impact of the of this court's earlier ruling once this court rule that article twenty seven was unlawful that put back into the case the freedom of speech issue first now that the freedom of speech issue was back in the case because of the evidence of retaliatory and under sheet metal worker versus when there is no requirement of retaliatory intent there is a well in fact the district court granted summary judgment for the alley and they claim that the union had disciplined him in order to silence him and the retaliatory one and actually in our prior opinion we  but at that point the court the district court was not addressing at all the legality or illegality of article forty seven which was the charge on which it found my guilty it was abstaining from addressing that so the fact that they didn't find an intent to discriminate under a different kind of free speech claim really has no bearing on the renown because after the remain and the article twenty seven issue was squarely back in the district courts la down it has an inherent power to do that and the and this court in the in the two thousand and six ruling said that article twenty seven could be amended in order to lawfully protect that interest and that's what happened on rena but the problem was this just this court has already found that article pretty seven as it existed at the time knight was found guilty of violating it was unlawfully overbroad and under the overdressed doctrine the first amendment over breath doctrin what this court has to grapple with from the perspective of judgments of opinion is did judge mall and find him guilty of conduct detrimental to the welfare of the aisle a if that's what does mom found then the answer to this whole problem is easy the words convert at the mental to the welfare of the our layer or mention numerous you should we make of it your honor the when judge mollen used the term spirit intent use it once in his entire opinion he was trying to explain his trying to give the mr goldberg raises what kind of notice that do we have that spirit intent is really at the crux of this matter that sort of comes out of left field i suppose a kind of does come out of left field your honor you're correct but not in the way that mr knight's attorney is arguing it's basically he's putting a great deal of emphasis in five brief of what we need to find the did mr knight have notice of he had notice of the that he had been accused of conduct detrimental to the welfare of the i lay for the conduct the specific on the accepting the five hundred dollars and using it to frame the cost of the function that was the key notice that he had and that's sufficient under the law he had a whole pre hearing submission from the aisle and that explains a lot more than that you're off and so without going  what was the bareness us the under the law he had a lot more he had an argument that the i lay have the right to for have it any conduct that involved a payment from an employer or a violin members to an aisle a officer in this case the employer was the port director the pool corporation doesn't ploy members of local six hundred ninety four dash will see you reading employer much more broadly than over reading it well mr goldberg is reading it as it's defined in the statute and he's taking that definition saying if you hadn't violate the statute then  you have not committed conduct that the mental and that seems to be what the same employer were using in the common term is any sort of dictionary definition of employer that is that a public employer in this two and i don't know if the hypothetical i just mentioned right now that was in the pre hearing submission submitted to judge mon bogalay if some a ploy from one port pays money argument that the i lay took the position very strongly that this did violate three or two but even if it didn't even if it was even if mr knight was correct and it did not technically violate their two it still was conduct detrimental to the welfare of the highway and that is what judge was found in at the end he his opinion was that in a lot of ways a typical r betrays opinion it states one side person is expected to be on trial for so he can defend himself against the conduct in this case the conduct of the simply taking the money from the port director i mean hartmann is clear that you don't have to get bogged down in particular rules or quoting particular sections of the constitution far from it you don't have to quote any role now certainly mr knight or anybody else does should be misled but i detrimental plain dictionary meaning of that is probably or than simply illegal are lawful and mr knight was not prejudiced because he had the opportunity to present his argument and interestingly enough it's pretty much what mr goldberg said today that he made the argument to judgment on that it was not a private was not a kickback it was not corruption it was what he called it in his pre hearing submission an innocent mistake so he made the argument that and that was under the heading that if mr dudgeon on finds that he did that mr knight did violate the law of the constitution that he should not be punished for you mentioned earlier that to ban any payment from any port officer to any any port director or any port in people or excuse me any local you know officer regardless of whether or not that actually violates rio two and he discusses why that's important because it could undermine labor relations it could undermine the members competence in the they do you know officers ability to negotiate on their behalf th the spirit and intent that they are to and it discusses why it's important to ban these payments regardless of whether it actually violates three or two and specifically says it is conduct dimethyl regardless of whether it's an actual violation of federal law but no your honor the specific phrase spirit intent of three or two was never used in the pre hearing submission and it's i believe you said earlier that perhaps was a red herring because i would agree with that do you what i had a question about overbroad let me put to you the same question that i put to mr goldberg and that is what's the effect of this court's ruling in two thousand and six that article twenty of it wasn't to what effect should that have here it does not revive a resurrect mr knights individual one zero one eight to claim the one that was  over our of the aisle his objection was brought forward on a gallery man but was discounted by the court and the court declined to rehear  there was just no evidence in the record and that was clear in summary judgment other people have been involved in this meeting they had also done publicity for the meeting the mission i'd done publicity other people had circulated information about the workers very meeting in front of a not the vice president horace alston that charges brought by james hynes he said that the meeting was improper because they use local union funds and  i've i'm not sure exactly what he was saying your honor at what the i lay made a decision to do was to when the charge when the charges were brought again they didn't focus on  misuse of the i have a name so i don't know whether or not even after the charges were amended i'm going to take the position that they could have been used to discipline mr knight because his his interaction with the port director left the port director confused about the nature of the meeting whether was deliberate or negligent it was clear that porter actor would not have nash an internal political rally in a labor union if that's what he knew it was going to be he apparently thought it was a group that was being hosted by the internationals a whole including all  current administration but it's clear that the works coalition is sort of a political caucus of island members who wanted to advance certain people for office advance certain agenda and that agenda and those people were different than the people who are currently in office it was a political group and that what exists regardless of article twenty seven which is that i do what i'm saying is that because he failed to bring it up during the appeal before us and two thousand and six well your honor it isn't that just as one of my positions i mean i also feel that he doesn't have a valid claim and that was because i was heard on summary judgment  thing that was you know you or your colleagues across the aisle so that the record was a quizzical the point of notice in your view was there is there any evidence in the enough of to be construed as charges under the heart of the serger it gave him notice that the i always position was strongly that his conduct violated federal law but it also said that even if it didn't violate federal law i lay had the ability and the the desire to forbid all payments from employers to a highly officers and i think that you know this was crystal clear interpreted by this court or the supreme court but at the end of the day the only thing that the ira has to guided by is its all cost fusion the key issue was whether it was conduct detrimental and that was always made clear to mr there's got to be a further explanation of what the conduct is so is it your position that the pre hearing submission isn't essentially the equivalent of a charge well that's what i'm not understood so clearly that phrase is not enough  right but what i think a good way to answer your question is how did judge molly himself interpret what the union was charging night with judge moll in his rulings at the i and i'm quoting the quote conclusion the aisle a asserts that mr knight violated section three zero to be that's the conclusion that the aisle a was charging night with according to judge marlin himself now as far as the word the dictionary definition of the word detrimental it's not the dictionary that applies here it's the i allays interpretation of the word detrimental the only the evidence in the record and relation to the charge is not constitution committee he's been an international vice president prover ten years as an international vice president for that in your period he has participated in the union's executive council has hearing original dis charges and it heals disciplinary charges lower in the union during the during the hearing in front of judge moll and his testimony was repeatedly that his understanding as the person who brought the charges against knight his understanding of detrimental conduct was either violate some other more specific provision in the constitution or it violates federal law that's his own interpretation that's how judge m as far as the over breath argument the aisle is is conflating two different charges initially when this case was risk there were several freedom of speech claims that night made one freedom of speech claim mess the claim based on article twenty seven the trial judge before the every man never ruled on that claim he had stain from boeing on this court so there was no prior decision other than or this court ruled that it is so it was perfectly reasonable and that it all good or that it did in this case pardon me that it could or did in this case this court ruled that  but there was no we didn't appeal of the of the free speech client based on a pattern or attempt to suppress it but we did appeal the clain that it was unlawful to  well briefed very difficult issues and certainly will argue today and we appreciate your hard work