of the conversations on the bus are private therefore recording those conversations is not a violation in nevada law and posting signs in two languages stating our conversations or  passengers conversations may be recorded means that there is no surreptitious recordings therefore according to r c are to see you do not need consent from any of the speakers as required by  officers you know that i question whether it's two hundred point six five zero prohibits surreptitious recordings because how can audio recordings be surreptitious in light of s notice to employ subjects and tend to activate the audio recorders and the signs on the bus alerting passengers to the recording so i've got all of those concerns but it's sort of like ok all that their recordings are going to have this like the truth of what happened so you know i can understand why maybe he don't really want to hear people having you swear are maybe you don't but why are people afraid of the truth with all due respect ron i don't believe that's the issue the body cameras that  police officers where they are actually participating in that conversation the statute that is issue here has that as a major component now with i'm not sure i put this my brave because but if the employees if you know that they're going to be audio recorders and the signs on the bus to learning passengers so how can that really be secret to anyone else ok there's multiple components to your question i believe number one is under the collective bargaining agreement there was a provision that was negotiated that said if there is quote new technology then the employer has a right camera had that component and at that moment in time when it was negotiated the employer did not say and we reserve the right add audio video has always been acceptable for numerous reasons which i don't think are necessary to expand on that but when you are any agreement fused defines new technology to include present technology well and i want to yes you know it in my in my view they waive that right when they negotiated mobile view into the busses but did not negotiate and audio that would have been a major condition for my than employees on the bus and when the judge said that based on the plain language of the statute accurate of aiding the audio portion of the mobile you can mobile view on our to see busses does not violate an r s two hundred point six five zero as the recall reading would not be sarette tish's because of the signs or violate the expectations of the privacy of those on the bus i respect fully disagree first of all if you are whispering which is one of the arguments that i made you clearly have an expectation of privacy that that won't be recorded but when these audio recordings come on they don't just capture somebody telling the truth or not telling the truth the issue is and that's the case i wanted to cite is under summers versus state one or two nevada ninety one ninety five at two hundred in one thousand nine hundred six case the court in that case referred to another case and in state v bonds we held that the warrantless electronic recording of communications from my transmitter type listening device attached to a police informant that your body camera in today's parlance did not constitute the interception of either a wire communication or and oral communication consequently we held the interceptor of such a communication need not first secure an order permitting the interception and then they cite in r s one seventy nine four four zero however the last sentence of that says such an interception must however satisfy the authorization requirements of an arrest two hundred point six five zero and other words when you have a body camera or a c i confidential informant wearing a wire that person is actually participating in the conversation in this scenario what is happening is that the somebody is sitting miles and miles away looking at a monitor and saying and listening to what is being said they clearly are not participating in the congress sation are you suggesting this is new technology or existing technology i believe in the year that it was notice of the new usage why is there a violation because it wasn't collectively bargained like it was just in a minute it was already bargained for no it was not existing it was not exist i mean you're suggesting it's not all due respect your honor in i forget the exact year that it was negotiated the conquered the technology of audio was part of mobile view when the negotiations were held the union agreed video yes audio no the employer never reserve the right to say oh by the way someday in the future and by the way but just a market just a minute i guess i have a tough time understanding that that's the way it is in the record it seemed to me that in the record you agreed to have all this technology put in the bosses well they didn't say they couldn't put the video in the box we said we could put this technology in the boss then the c v a was not violated that time you got a chance to argue about it then you were given a notice of inch usage that you'd already agreed was in the technology i'm having a tough time if i may when the negotiations were held the audio existed the employer by the way is m v transportation not r t c right ok and that's an important factor i believe here did not reserve the right and did not say we will put in audio in the busses and that was existing technology that was not negotiating just for a minute if they didn't say that they weren't putting audio in the existing and yet you say you didn't agree to it so tell me why it isn't new new means that it would have been invented after the negotiation if it's a technology that's in the bus but you don't agree to it but now they say we're going to implement it why is that new because it existed at the time the negotiations occurred while the it was not in uganda never had always well they can't have it both ways e trying to do is say what way you're going to have it it's either existing technology or it isn't it existed at point a and they had the right to say we're going to implement everything at that moment time having waive way there was no evidence taken in this particular case there was a few affidavits but no evidence whatsoever that the new technology would have been invented we didn't used to have electric cars were used to have only got gasoline cars that is maybe a weird example but new means after the fact created not otherwise ok ok so as opposed to your clients the bus drivers both both both in and i don't know that this was in the briefs but does the union have standing to raise issues on behalf of bus riders client has refused to get to consent to the recording of it i don't know what the other passengers do but my clients have been disciplined in fact fired since the implementation of this and that brings me back to the c provisions of negotiating discipline that when you're going to use and i don't for discipline of an employee and you haven't negotiated some of the standards in the past bringing up existing technology that existed then and saying oh now we're going to use it in my view requires mandatory subject of bargaining under the national labor relations act which is exactly why when it was filed in state court i moved it to federal court o importance is the decision by the n l r b to that argument i don't i don't think it has an important i think it's a non sequitur we didn't appeal it was a p that we filed that says just because you didn't appeal that says that it should be used against you why is it that it has no importance in this decision it says this is not a violation well with all due respect i do believe that a regional decision out of thirty two  is not going to be persuasive on this court i think that federal law requires that the n l r b be involved in it and yes it was but i just don't believe that that's a good  talking about race judicata i'm talking about the influence on me when the n l r b is spoken to the exact question you didn't appeal it i don't have to say race due to caught up but i can give some influence and what i'm thinking about that well and i look for a case to say one way or the other and nothing says that i can give at least some influence until my decision so that's why i was asking you about it in my view reserve the rest of my time if i may that is not dispositive of this case because this case turns on an arrest two hundred point six five zero if you like to raise that you're just one question is that your position that the statute the nevada statute that regional transportation commission or we call the r t c is the owner of the subject busses is the owner of the mobile cam view it made a managerial decision through its board to implement the audio of the mobile view system and it's quite that what they're arguing is that r t c had the technology to activate the audio recordings when the collective bargaining agreement was separate two why wasn't the decision not to activate the audio recording recorders at the time a binding decision requiring bargaining if r t c changed its mind when i would have to put a couple of points on that you are one of the collective bargaining agreement is very expansive on the technology that  transportation and r t c are allowed to use the union would like to focus on the new technology aspect which i think covers this situation but also in four point two technology rights the company may employ a new technology including video systems and other present or future technologies for the transit industry in order to ensure the safety of the driver and passengers in so it is not just new technology although i think this is a new technology for this application but all present in future technologies and there is information presented at the board meeting that approved the activation of the audio that audio recording is in common use in transit systems across the country so that your your opposition says this isn't new it all was already installed yes and therefore it's existing he says that he did but your answer to that my answer is that the collective bargaining agreement is extremely expansive in the technology that is allowed to be used under the bargain agreement and it's not simply just new technology bit under  four point one f the company is allowed to enter deuce new improved technology machines etc under four point two they're entitled to use not only new technology but technology present or future technologies that are used in the transit industry so the intent of the can collect of bargaining agreement was very expansive to use these technologies and so you see as the owner of the buses when they implement the audio recording it's not a subject of mandatory bargaining with the union for several reasons one let me ask before you get to that to jeffrey meeting confer with the union with perspective the activation of the audio recording v transportation did so and that was a that was found by the investigation by the n l r b decision that they did meet in confer and and the union disagreed but but they did mean confer is is that in your view sufficient to satisfy the pursuing any remedies they might have under the collective bargain agreement however this was not a subject that required mandatory bargain in the n l r b happened to find that they waived the right to bargain that and that's in our brief existing are you sensually is it your argument that you have that you bargained with the understanding that it could be turned on at some point or because i'm hearing the appellant argue that which i don't know why you would agree to having things on there and not expect that they would be turned on but well i think one point your honor is that the r t c do not bargain with union we own the buses we the mobile cam we tell m v transportation what we want them to do so and the transportation entered into the collective bargaining agreement with the union and in doing so they have this extremely expansive suite of technologies that they're allowed to use and so the fact that you have an existing system whether you want to call it a new technology because it's new to this situation or you want to call it a present technology the union has agreed to all of that they just don't like the idea of the microphones being turned on and i think it's important for the privacy issue well actually i don't think it's important the privacy issue but it's important fact that the marker phone only picks up sounds at the farebox and where the driver is so it's not secret microphones throughout the bus it's only the interaction at the farebox with the bus drivers and apparently that's what they don't like is because it does pick up the truth of what occurs and that's why  slee because i don't think that conversations on a public bus are private conversations it's not like in gucci or in cats where you have enclosed telephone booth or you have a tent a house it's a public bus and people sit next to each other and talk and i don't think there's any reasonable expectation of privacy on a public bus we can we really don't have to get to privacy do we whether it's a private first if it's repetitious which you know how can it be struck tissues to the drivers if they're provided notice of it and it's to the passengers if they're provided notices on the busses well not only that i understand x there even that is the audio is for video surveillance in the public system is disclosed on posted signs at the front of the busses that's absolutely right your honor in english and spanish and there's a whole nother camera and audio system the drive cam that that records audio and video from cameras at the front of the bus the mobile view has several cameras around the boss and just the audio recording at the front of the bus and the reason the r t c wanted the activation was to resolve disputes about what occurred in that area and so they they made the managerial decision for you would use that though for discipline purposes right well our ten c would not but n v transportation potentially could and they have a scheme in the collective bargaining agreement that on how to use recordings and the union gets a chance to see him and they have they go through their whole said a mandatory subject of bargaining and and i think i understand you saying that it's not a mandatory subject the activation yes your honor and i would say three reasons why i don't think it's mandatory subject of bargaining one is that it's already covered in the collective bargaining agreement that these systems are allowed to be used and what they do with recordings number two if you assume that specifically audio was not included in that that expansive list there's a sixteen point one waiver provision that if subjects were covered but not specifically mentioned then they waive the right to go to mandatorily bargain it and thirdly i would say it's not a mandatory subject  bargain because this is the r t c making a managerial decision that for their purposes of customer service for their purposes they want the audio turned on to improve customer service and and there is contractual relationships with v that m v is subject to to what we want i'm to do this came up for declaratory relief because of the assertions made by the union that turning on the audio would be a criminal violation and also a violation of c b a and so that's how it came to be a request for declaratory relief but i don't think activating the audio would be a subject to mandatory bargaining in these circumstances now there are cases i'm aware of with the n l r b where secret surveillance cameras there's i think four or five and ought to be cases where secret surveillance camera cameras that were not disclosed to the employees were mandatory subjects  marketing but i didn't come across any case where an open surveillance such as an audio video maintained by an owner and an even an employer i haven't seen any cases where found that these were mandatory subjects of bargaining and the district court below found that they were that they were not mandatory subjects of bargaining because you have the recording of the truth of what occurs at the farebox and then the mandatory subjects of bargain where what do you do with that and how do you handle that and that is covered in the collective bargaining agreement the last point i'd like to make is the whole reason that the r t c and this is reflected  in the record the whole reason the r t c brought this declaratory relief was the threat of criminal action and r t c thought it was prudent to get declaratory relief on the issue of an arrest two hundred point six five  before activating the audio and we got that declaratory relief from the district court and i think the statute we agree with the argument that you look at the plain language of the statute and then it looking at the plain language of the statute  you have stripped requirement you have the privacy requirement and only if you have a stripped recording of a private conversation do you ever give to the requirement of consent and as is typical and about a  law there's there's no relevant cases that are interpreted in that statute to pride any more guidance although so if i find for you as a relates to the nevada statute is that the only issue i have to answer well and yes in the sense that that's what concerns us the most i understand that but that we right now have another issue really is that issue only the consent is that the only reason it's before us is  consent because the union is asserting that consent kind of stands alone as its own mark when you're doing a lot of legal i ask you can i decide this issue merely by saying that nevada law does not apply bargain and therefore for close to now we would like you to determine that activation of the audio as a matter of declaratory judgment and up hold the district court does not violate the collective bargaining agreement because that why that's why i ask you that is that really an issue i have to get here i didn't see that as an issue i got that only as the sense as to whether consent has been given that if the law does the the district court had major determination under section three one of the labor management relations that that the proposed activation of the audio did not violate the collective bargaining agreement or was not a subject to mandatory bargain and under your nice circuit cases you don't have to be a party to the collective bargaining agreement to seek declaratory relief that that either an enforcement or are not enforcement of the collective bargaining agreement and so i think it would be helpful to all the parties to have a final resolution from this court or even just affirming what the what the district court did in regards to the collective bargaining agreement but honor one of the ironies here i believe would address your judge smith's question is at r t c is a public entity not covered by the national labor relations act i recently filed a p against them and it was dismissed based on the respect you're i don't think it applies now in in this particular case mr wilkerson had that this is improved technology nothing was ever improved it was the exact same technology the audio now the drive cams issue is something that was negotiated years ago and when it has audio and video it's activated either by the driver or by an incident such as slamming on your brakes and  records ten seconds before and ten seconds after and everybody knows that it's on there and that's the safety issue that's the legitimate issue so if the drivers involved with a beef with the passenger he or she can push the button and therefore that is then recorded under the agreement that we've talked about try to move over time unless any of the panel has questions i'm going to call time on you know