gauntlet in order to simply notify the union and her employer of her revocation specifically whether a union legally can impede an employee's revocation notification by placing window period and certified mail restrictions on it the united states supreme court has already held that impediments to check off revocation of cations are legal yet the district court did not even address that just one question since this litigation is been going on for a while yes house the notification worked since then so that the injunction part of the case is gone and there's just damages for one of the employees yes your honor skinner adams she was able to revoke within the next window period why not the other one the just rather yes or under if he actually decided not to attend because he providing that right section three zero to eat you up to the twenty nine u s c one eighty six and it says that district court shall have jurisdiction to restrain violations of this section without regard to the provisions of section title section seventeen of title fifteen and section fifty two of this title section fifty two of this title is important because section fifty two congress removed court's jurisdiction to grant injunctions between actions between private parties if section three o two did not apply to private parties in the first instance this exception to section fifty two would be irrelevant yet there are other private rights of action within three hundred like thr another way of thinking about your honor is that congress did not expressly provide for the government to have the sole jurisdiction over this issue or to bring these actions before the courts and the whole purpose of section three zero two is to perfect protect employee rights three deals with a secondary boycotts three o two deal specifically with the general rule that unions and employers can't transfer money or thing of value and so pulling jurisdiction from another statute one through to itself provides for the prime right of action i don't think the allow for a private right about or no and where they don't but they both have a jurisdictional grant in them that correct and then section rio two does not have a private right of action  don't it doesn't provide a right of action to three a one in three of three it provides a right of action to bring violations of section a and b of three zero to real one in three of three deal with the prohibition on injunctions and labor disputes at three on this court address  those courts have addressed that and they said that three or one did not specifically provide a prohibition on or an exception to section fifty two book ortez sense then held that in looking at the entire policy they can bring into action this may be that's another role for three or two because three or two is quite express about saying don't worry about the prohibition on injunctions yes your honor if but the issue is whether or not you can bring a section three into violation not a three a one or and three violation here may be the better way to think about it or not the better way but another way to come out it is through to e does look like a jurisdictional provision and it's been a long time since the us supreme court has identified a private right about action through a jurisdiction provision so what would be the response to that way of thinking about it the would be to look at the plain language of the statute and then if and even though it's been a while to use those test if you don't think it's expressly provided look at the whether it's implied in there and even under the implied test as was noted by the or court in this jurisdiction in patterson they said there's a four part test to whether or not a statute provides a private right of action and here it does meet that implied test sensed stand of all in all those cases addressing whether or not congress explicitly or implicitly intended to provide a private right of action here i believe it's a it's explicitly provided but even if you go to the midwest act it's a criminal statute that's the other oddity to me because i don't think of private right about action in one nine hundred eighty three cases it's usually relating to civil statutes and still civil standards of care seems a little even back in the days of implying rights of action all the time i don't think they did it very often with criminal statutes in iraq about that i cannot speak to the history of including criminal with the civil but this court in jackson purchase noted that this statute provision provides a criminal and a civil remedy for violations i wish to order that refers to the us supreme court decisions of my remembering jackson purchase was not unpublished to my knowledge it's six forty six after eighty two sixty four in this court addressed what year is that one thousand nine hundred eighty one and it addressed the fact that these this statute provides for two distinct violations both criminal and civil and that in doing so you can still bring a civil damages a civil suit and in this act situation the individual can bring a private right of action because the whole purpose of section three o two is to protect the employee in the dealings between the union and employer and that's one of the four part test for implicit implying a right of action here the employees are the a special person for whose purpose the statute is for and congress intended and provided an express remedy by giving federal courts jurisdiction to restrain violations here and section three zero two situations have not been granted to state courts to adjudicate it's been left to the federal courts and federal jurisprudence so because there's a private right of action i'd like to turn to the issue in the merits of a section three zero two violation as noted section three zero two prohibits the exchange of value of anything between a union and employer unless it meets one of the nine specific exceptions in section c the fourth exception is at issue here your honour's which collective bargaining agreement this court has already acknowledged in us postal service that this is the maximum that is permitted and this narrow exception to the general rule here the union attempts to go beyond that by placing additional restrictions on this notification irrevocable means not subject to revocation and here i mean in correct me if i'm wrong it would seem that in fact the assignment was revocation it just had you know a bunch of limitations and those were ones that your client agreed to and a contract and so but apart from that i mean the important thing is it was in it provided for a one year irrevocability the union decided to choose the maximum permitted but the here by placing these restrictions on the notification that you want to revoke at the end of that irrevocable the period if it restricts that revocation so it's irrevocable for more than one year well it would it would have been revocable i mean it would have been in fact revoked if they had served in the manner they're supposed to and within the timeframe they were supposed to they just didn't do this second point would be to that your honor they can't you cannot enter into a contract that violates the statute the statute specifically don't eat what is permitted for the narrow excepted would violate the statute to say the revocation must be in writing hypothetical question i mean would it because it requires a writing to authorize it one would are no it would not be and whatever they gave you a three month window or form on your i understand this is a tighter window and i understand there's a certain officiousness that one might react to it seems with that but if if this is no good you know where do we draw the line i mean if if is it a month is it fo months and on what basis are we drawing these lines why not just say if you agree to it that and you're kind of stuck with that for the year the united states supreme court actually provided guidance on this very issue and felt that they looked at a  notification restricted extraction there and the supreme court said that unions are not allowed to treat doesn't revocation notifications that are into clearly intended as such and about which there's no question about it was no agreement with the they were members of the union agreeing to the terms of the view for employees but it doesn't matter whether the agreement is between the union and the employer or between the individual union you can't agree to collective bargaining agreements are often for short periods of time so if we adopt your rule everything would start afresh with the new collective bargaining agreement that is a second period there's two periods of what when it can be irrevocable one is on the here the unions chosen the anniversary date of the collective at the check authorisation the second one would be the collective bargaining agreement so yes the collective not because not anniversary window that not an inverse or the period would renew or it would be applied but whenever that next good morning everybody my name is douglas corning i represent you have c w local eight seven six and the source of the dispute in this matter is a document entitled voluntary check off and i should add at the beginning it was voluntarily entered into there's no claim there's no allegation that the union used any sort of an toward activity to get this card indeed people have in section seven right not to have their dues you know one feature of this that you know since you're starting with the merits from understanding this correctly i mean i can imagine a window i can get a window i can even imagine it being fifteen days but if you miss the window why wouldn't you hold on to the request for the next window my right and understanding that that's not how it works that's correct what about a clear rules over the statute was passed in one thousand why not why not why wouldn't you let it roll over it's obvious they certified mail they it's very clear they to revoke and i get you're saying you missed the window but how can you say they missed the next window because they agreed to it and the statute was passed in forty seven in forty eight the department of justice w and it had to give an opinion regarding a checkoff authorization card similar to the one in question in that case you only had a ten day window period and if you didn't hit the window period the attorney general said it automatically rolled over for a for a another year and that's what we have here and i should add that section three o two is maybe my question is not clear maybe i'm not understanding this when you say automatically roll over that's what i think would be reasonable  so you get them the certified mail on day sixteen correct miss that window right i thought the way you did it is you wouldn't allow that to count for the next fifteen day window am i wrong about that well it automatically rules well with them what's what's the answer her question the question is why not because that's something the employee remember the union has not constrained or restrained anyone they voluntarily played mail within the period if they don't they further agreed the that it would then roll over for another year and as they say we did not require restrain these these individuals from doing anything they did it on their own just i mean round out the what's the purpose type questions what's the problem with personal service of a notice as opposed to certified mail well because in the world would you just regard that if you have a window somebody shows up and gives you personal service which one of these folks did maybe outside the window but hypothetically somebody shows up at the union office and says here's my card i don't want to trust it to the mail here's my card i'm in the window let me out and that's not good enough correct it just seems crazy because the well they agreed to it but he didn't force them to sign this card we didn't force them to enter into this agreement they did so voluntarily what i mean case i'm not sure that was decided by this circuit or not where there was a ten day window period and they certified me or requirement in the court said that was unreasonable because well it was a ten day window creating the court said that was  reasonable in this case there's a fifteen day window period in the decision issued by the letter of the opinion excuse me issued by the department of justice it was a ten day window period in the parliament of justice so that parties agree to it and they did and then so this card is not something you just pulled out of thin air it was based upon it conforms with existing and a lot of b decisions it conform to the existing court decisions so this is a very common provision throughout the country in every case the n l r b in a criminal case well that's a good issue and i would say no the statute is could it is criminal in nature it's designed to deal with labor management  bribery extortion and it's such a very logical progression section three o two a and b spell out conduct action response to your friend's argument at three o two create the private write about action what your thinking about that i would say no because three zero to eat what it does is grants to the the general or the department of justice an option under a violation of section three o two set forth the consequences are set forth indeed it's a felony that is possible imprisonment and this gives the justice department in addition to criminal sanctions the capacity or the ability to go into court and get a restraining order but it does not create a private cause of action without would they not be able i don't believe so because of the because of the clinton that came because of the norse laguardia at laguardia those two statutes i think clearly in my opinion clearly deprive federal courts of the authority or the jurisdiction to issue restraining orders in labor cases and this would be s i believe that's the way the others is the answer in my opinion is yes so three o two has a very illogical progression you set forth what you would deem to be inappropriate and then section three o two c four sets forth an t well let me just say you should allow for money damages no i mean even the attorney general no this is a criminal statute that says it's criminal so now you have somebody was violating the law what do you one way or another but the damages would not be because presumably they want the union dues back that they think they should have had to pay so i think we would be in agreement on that but then you would say well you would just say which is it before three zero two he does not allow for money and i should the secondary boycott and a secondary source question the point you made about three zero one and three zero three that they not only create a private right of action but they specifically establish jurisdiction that's right for cases involving secondary boycott now a secondary boycott it is an unfair labor practice an employer has the right to file a charge at the n l r b but they also have an option to go into court and seek money damages so the congress very clearly straightforwardly set forth the ability to cause of action same thing with three zero one but then look at three o two easy you do not have that clear congressional intent and it designed one is a breach of contract and the other deals with secondary boycott but i think i may be running out of time but let me just say this you ask about our card they say the union didn't pull this card out of thin air we looked at the attorney general opinion we looked at all of the decisions rendered by the national labor relations board and we looked at all the court cases among other things the plaintiff's claim that the union reached its duty of fair representation they suggested it as acted in a totally arbitrary capricious irrational manner that's the standard irrationally did the union act in an irrational manner when it picked up every court case in town when it looked at all of the decisions one of the question let's just say you're right about the private right of action point hypothetically could they take this same problem everything else about the cases the same and go to the n l r b and say this is an unfair labor practice with that i'm not saying what the n l r b would do with that decision but the n l r b have authority over that last i guess your honor raises one of the good questions in this case because what we're suggesting isn't there some authority that you can go to the well y these cases usually went through the analog they do go to the end of that suggest the n l r b has touristic that's correct that's not a big concession it's really not much of a question well it is a question in my response is that it indeed people go to the all the time and the n l r b has passed on this issue time and time again it the general counsel every far as they know every administrative agency has a general comment and they issue medals of one sort or another all the time and  mercy memorial hospital it says specifically that section three o two is an independent liability creating statute and acted by congress to provide additional judicial remedies for some nominal contact me depends where part of three  claims have been going through the board and i was trying to figure out if there was a disadvantage to that route and i couldn't the disadvantage is the board cannot address the three o two so you just think i'm wrong there are no such cases with this type of claim that went to the end or because i really thought there were quite a few they will usually address the board or usually address three o two claims if they are brought up as a defense to why the union did did or did not violate a section right there but it's typically not brought as a section three zero two you cannot bring it out right as a section three of your but it's an unfair labor practice you could but this also is an independent liability statute that you can bring before the federal courts congress specifically provided for this to be brought would bring it a union and then they would also they would potentially look at it through the purview of three of two but there's would be two potential violations there before the board which this court it would not be before this court as has any other circuit i should know this already said that there's an implied right of action under those three o two not that we were able to find but there's plenty of cases that have addressed whether or not there's a violation of section three o two in other words other circuit have the claim lost but not on grounds because the court lacked are but an individual aren't raising the argument that we're we're talking about british arm right about that no no they did not but that doesn't mean it's not a permit of all private right of action here get that it's ever been raised if i would start anything is my point it doesn't help one side of the others all i'm saying no here and it doesn't but it does provide guidance of whether there's an implied right here because at the third part of the test is what is the promise here purpose behind th and all of those cases in addressing three o two has said it is to protect the employee here it's not to protect the union from employees but the employee from the union and here on issues are not new there's equitable restitution still available which this court and you know us versus we understand that going ok if you have one of thing or anything else that you well i would like to say that the test is not whether or not it's a reasonable restriction the test is whether or not there's a legitimate interest reason behind it and there is no legitimate reason behind the union's restrictions here what about administrative wise and administratively easier to do this fifteen days each year i mean i'm not bending it is good policy i quite understand the objection because it seems designed to prevent people from changing their mind but that happens wise and administratively convenient to say sort of i man it's got to be in the window and we just ignore them otherwise and we don't want to hire some other folks to be implementing what would be a little more complicated it's not a new strain because each window period is different it could be depending on different days different month and so not only that i just mean it's a bright line rule is i guess the way to put it is in a bright line rule i mean that's true it's yes there's no question but the the what a harsh it's very harsh your honor but there's no mystery purpose because the union as soon as they receive it could notify the employer that day saying hey on such and such a date stop deducting dues so there's no administrative function of when they receive it that this magical fifteen day window suddenly makes their administrators function so much easier it doesn't and for that reason there is no administrative or legitimate reason as this court acknowledge