i always enjoy going to the courthouse and pasadena san francisco because it makes a lot of difference but there are actual work so well i think because the district court delayed in issuing its decisions in this case  both parties were not happy with the judge's decision and filed a motion for reconsideration you're not trowbridge two thousand and seventeen which were then submitted unfortunately i was put in a difficult position because we had already told the secretary com it would been subject to rerun so we talked to secretary you've already agreed to rerun the election come and supervise it and then the i j a and details all the efforts we may have made beginning in january of two thousand and eighteen election you make the decisions just let us have that test out there and we said we don't think it's ever going to be another issue because this was the st time that literacy test had ever been an issue but we wanted to preserve it for reasons that i think are clearly explain  that we can't function as a union if our chief officers can't at least read were usually complicated legal documents so the secretary refused to conduct the election refused to supervise it even though the judge had ordered the election to be supervised we had to go through the election we did it because otherwise as i said we would be subject to another challenge conduct of the election and then the secretary comes back in in may two thousand and eighteen and investigate  conduct an election then the secretary even investigated the election gave a clean bill to help so we shouldn't have to have a rerun election so we're here and for sure because had the judge issued her motion her decision requirement for these kinds of offices come so i want to jump in because i i think all of us all three of us are familiar with that chronological historian and these i'm willing to agree with you that yes it would have been much better had his record holder earlier said that what's preventing a resolution between you and the secretary could have been you know taken off the table earlier that didn't happen obviously and you're an argument i recall from your briefs that what you just said once too was this question circuit which are pretty clear and i understand that that when the union goes ahead and conducts some election it doesn't moot the secretary's right to supervise the election however as we detail every for this case we think it's different because we asked the secretary to supervise elections secretary declined on the basis that the district court and its motion or its order on reconsideration rejected now the secretary said we won't conduct it because we want to do away or eliminate literacy or prima yes yes absolutely what's your position on another that should be a supervised election we invite the secretary supervision they're welcome to come and sit with eyes so it seems to me that putting aside the merits of the case which anymore is the only just issue of dispute real dispute between you and the secretary whether the supervised election should be conducted some time between now and the next regular scheduled one so the question for us is whether or not and that mr quirke wasn't confronted with any of this because it all occurred after after the district court rulings why don't they propose a course of action and see secretary has to be able to supervise an election but you have the discretion ringback and your equity powers to order that it be the next regular rescan who want is there something wrong with that resolution there's nothing wrong with the is the secretary's position whether then when he or she at this point it's jeanne's killer watson to supervise the election they say you cannot impose pones or enforce or remind folks about the literacy requirement we're not going to enforce it and we have an existing c that's my question we have an existing just record order that seems to me to say there are elam r t a violations in this election but there should be a supervised election and if so when and so you know if you have a further fight with the secretary the courts are open but it's wrong my job is to figure out when the supervised election wasn't timely and i'll move on but the bigger issue is the literacy here because we think the record is abundantly clear that he couldn't read english to even a department of labor's investigator who talked with him he said in his report that he had a lot of trouble that you have an unreasonable or an arbitrator sequoyah somebody listens to you read something and decides on his own whether you've done well or not and that's arbitrary and capricious is it ok if when later truro was filling out his questionnaire and check the appropriate boxes on it the problem was it in doing that the election judges noted that he wasn't reading the form it was being written for him by his friends understand the facts of the secretary to show actual eligibility or is it enough that someone has such a way eligible because they're union it's not enough to simply because you're a union member because there are many qualifications eliminate even union members is fine with us we welcome and welcomed in two thousand and eighteen secretary decline just don't want to leave the impression that we think we were wrong in disqualifying just a tree out for not following our rules which is you have to have your documents ready at the and secondly we discovered that he really wasn't literate and we can't have officers sir who at least don't have some basic literacy in english ok let me just check with judge person you have a question for mr rosen public or we hear from counsel for the secretary well i think you basically covered my i mean obviously washington obviously i'm concerned about the issue that there's no criteria at all for a literacy test and it seems completely arbitrary  if i may just respond briefly you're seeing in the record that when this deposition we found a simple literacy test that the government use we asked him to read certain sentences and explain them and he said he couldn't do it there are literacy tests out there that are position you find something that was not given what the literacy requirement watch that the test you're out of the or is correct he was told that the literacy requirement was a climate that was put in the election notice sent to him and everybody else what wasn't told him was it if there's a question about it and somebody challenges your literacy the union will have to investigate it in the way they investigated this asked him to read something to see if he could read it  so we were clear with the members you have to be literate it's in our constitution it was in the election notice it was set up everybody knew it from so i don't think we can be faulted for failing to notify people and they had to expect to meet that qualification if a question was and exercise or previous election obviously mr rosenfeld does but just as soon assume that away for a nd i'm still trying to figure out what the secretary's position is with respect to what happens now and it seems to me there's really only two alternatives one is that an off schedule election is held on the other is that you supervise the two thousand and twenty one election and as i read your briefs you seem to the secretary and that you know waiting until the next to provide you have the discretion after listening to the parties to determine whether or not to do that in conjunction with the next regularly scheduled election would that be a remedy that the secretary o election scheduled only a month or so way it would be silly to conduct one and then have everybody elected subject to a new election within six months and the district court orders that it seems to me that's an appropriate remedy but i want to make sure that it's not the secretary's position that the district court lacks that power which is the way i think i read some of your briefs i think your well your honor i keep in mind that  equitable power to schedule in and remedy for for the violations found in this case to schedule a supervised election in two thousand and twenty one if it does we can send it back to the district court and say mr missed listen to mr rosenfeld misuse direct and you can decide whether or not you want to have one between your or then if it doesn't have the power we shouldn't send it back to the court so i want to know what your position is on the cert on the district court's power i'm not aware of decide whether to order an election or not i think there's a sense of consensus that the statute requires that there be a big district court has no discretion there has to be a new election in terms of part two the the equitable considerations it seems to me that arguably a district court would need more guidance than just consider equity because what i see happening is big fights over the equitable considerations and discovery and whom i don't want and what the issues are and pretty soon we have more delay so it seems to me that any equitable considerations have to be  instructed with the idea that the sort of policy behind requiring a new election that it be done as soon as practica and that it be done consistent with the you know the goals of protecting the integrity of the process so i guess i'm just shying away from the idea that the district court should be given unfettered discretion because i see that as we've done discovery sense and we've learned he's not literate so it wouldn't have mattered and it's your burden to show that he would have been eligible and the judges held at least some literacy requirement as is appropriate what your response i have one other question that relates to the equitable considerations here let's say that there we were to order a rerun of my action to be held tomorrow or next month so we were going to wait for the next regularly elections and so there's your question was was we have had the same powers to do that if we had chosen to supervise won the election i just want you to focus in particular on the literacy are right what i'm asking is when i hear the unions saying is that look we offered to you the opportunity to come in and supervise that is at the twenty thousand election that was when you could have come in and and you refused because you wanted basically to have the merger requirement wiped out all that together you haven't pressed that argument for us and that bothers me from an equitable nd point because it seems like now if we were to rerun election all you would be doing is doing the exact same thing that you pick whatever the most objective reasonable you can improvise how it's applied to everything you want with respect to that and also saying as it seems like if we're going to have a rerun election next m sport were to say supervised election must happen and then yes what would happen is the secretary would begin this process of union as we tried to do in twenty eight dollars c and and say you know it's half needs to be developed at hassett you know the obviously avoiding being involved in most absolutely necessary but that hammer is important in cases where there might be monkey business and whether there was here or not i'm just i'm just a regularly scheduled election and that you do so and you require that election as soon as practicable if you don't have that requirement in terms of the sort of equitable considerations then there's no guidance and no sort of deference to the overriding purpose of the l m a r d a and when i asked you earlier to me it seemed important that the idea that we just apply equitable considerations is fraught with a sort of lack of guidance because it just invites the sort of thing as a district court that i see where everybody fights over every issue and we're months and months and months and months down the road so it needs to be you know it needs there needs to be provided some guidance in that regard and this idea of sort of flipping the bird or potentially placing the secretary in the position of having to come up with the criteria at least arguably you know seems to not be consistent with the m l m r d's purpose  and that is you know the sort of thing that the elmer gay marriages we want membership have free i do have another question i apologized to his wife was that what do you want us to do for the district court's order there is just a court order and then leave it up to the secretary and the union about when the next election is scheduled when the only to point out that we conducted the two thousand and eighteen alexion the secretary thoroughly investigated and found no problem no monkey business in the way we conducted that election and this wasn't monkey business which had to do with some requirements of our constitution we thought we were enforcing against the one to vigil who didn't commit hi this is judge progress and i thought i made it clear that i was talking abstract you know if that didn't come through that was my intention we're talking hypothetically at least about the sort of bigger policy issue true but i wanted to say that only because i think the fight in this case is preserving our right to say to the worker you it appears to us you can't read english and use a relatively informal test which we used in the past to say here's our constitution read it and we're on our backwards to let people qualify that's what bothers me but it just records found that that test was arbitrary without standards and so you may have thought it may have done it in good faith but you lost that court of the case you want to want to rule on that we can but i'm inclined to think the district court was correct so that the question is what test if any do you apply it the next all the offices just this one office which of course prices up burden i must have everybody come down vote in one office and having said that again we told the secretary in two thousand and ten any test you find is ok with us any test and if counsel wants to b the court missed was the fact there's a real dispute issue fact whether tree hill is litter or not we thought the record proves he wasn't with her at the secretary's investigator agreed to that and we think we probably disqualified him putting aside the test because