good morning your honor may please the court bill messenger for accounts this case presents a textbook example of a breach of sherry duty an agent secretly agreeing to compromise the interest of a principal in exchange for benefits from opposing party pacifically the union here secretly agreed to not see can prove retirement or health benefits for nurses in exchange for the employer's assistance with unionized nose nurses and requiring that they pay fees as a condition of their employment this is my initial reaction to that argument in your brief counsel was that this you argued that it was unhelpful to your clients he would argument is also made in the i guess you say it in your brief that this was a valuable to your clients in that they didn't have to they didn't go through the usual problems with the you said it was helpful i think your your opponent said it was helpful but that was helpful to the nurses in that they got their union quicker didn't they it was helpful for the union to organize those nurses and perhaps for the nurses who wanted the union could be considered hopefully organizing assistance but what's at issue here is the pre recognition deal that the union made to obtain that organizing assistance from the hospital namely agreed not to seek better health or retirement benefits for those nurses and conceal that deal as a quid pro quo for the hospital's assistance to unionize those nurses but there are additional exhibits that is the side letter we're told about this so called side letter why is there more to this them than this court has seen yes you don't really see this even the side letter what would what do you what is a record that we should be looking at i believe in the record restricted to the complaint and documents referenced there and which of course would include right side letter in a confidential labor relations agreement but even that agreement isn't complete standstill agreement which is referenced in the confidential labor relations agreement was not disclosed there's an exhibit to the side letter that actually lays out the exact medical benefits that will be frozen that exhibit of believers exhibit two referenced in section two be the silent or has not been disclosed and then also in addition to that we don't know what we don't know the fact aside litter was disclosed something that the union did voluntarily that's required brief there could be more and on this record my clients don't know we're on the outside looking in so to speak as to what the complete arrangement is between the hospital and the union what would what's your response to the argument that this all predated your arrest the representation the agreement was certainly entered into before representation and before the you know to future duty but it's our position that the agreement has continued thereafter and so it's the continuing maintenance of this illegal agreement that's a breach fiduciary duty and then are they maintaining it just by being subject the representative when it became the representative yes at that and at that point it was in violation of its of of its duty of fair representation exactly or that's more than six months before suit was different however my clients didn't have evidence of the pre negotiated agreement to total member seventeen which was then a confidential contract proposal was leaked to the entire bargaining unit is is a cruel of a cause of action depend on depending on amount of evidence yes your h violation had occurred why didn't they have that the day after they became the representative did they complain about this very thing before them before that point they said that there they knew that there was a deal being concealed in it could include pre negotiated concessions but they didn't have it in the very fact that there are secret things that the went into their representation that are binding them is it is a violation you say willy's of the content of the secret thing well they didn't know it had pre negotiated but in terms in other words or thought their work as you claimed that there were claim that there could be because in my experience and there's a larger arkell's to show this many organizing agreements but not all do include pre negotiated terms as a quid pro quo so based upon that the objections to the election were there concealing this organization agreement which could include pre negotiated terms but it wasn't till november seventeenth there was actually evidence of them and so before nov seventeenth your honor this lawsuit cannot even file and i think that's clear by considering a counterfactual but see before nov seventeenth filed the suit it would literally be a shot in the dark it could be wrongful and if one of the really wasn't at six months together evidence and that's what a statue of limitations does it gives you a mount of iran notice of the fact that you've been injured and you have amount of time to gather some evidence and sue  worth the idea of a statue of limitations on the stuff that you already have and not that you're able to actually file at the beginning of the statute of her time but that you ought to be able to file by the end of the statutory time yes and so from november seventeenth that was filed in six months of that reveal of the fact that so in nov seventeenth when it was revealed that there were pre negotiated turned as they become their representative october fifth so between october fifth and over seventeenth there was no firm evidence at least not enough to f this lawsuit that there were renegotiated terms but there was apparently enough evidence to file an unfair labor practice we didn't fall unfair labor practice charge it was trying to intervene in the election proceedings to say the election the unions concealment of the overall agreement interfered with employee free choice and just part of that and if you allege that before october yes that was before even the recognition but that point on the question judge co question to wise men if it was an up to a certain that proceeding why was not enough to be the basis for a lawsuit because the objection was concealment of the overall agreement which we say could include pre negotiated herm's we didn't say that it did because we didn't know it was not until we didn't have enough evidence that actually worked those terms until november fifth that's particularly relevant on counts two and three count one goes on to concealment count two and three attacks the actual agreement itself and until we actually knew there truly were pre negotiated terms of employment that we didn't how i didn't have enough evidence to present that claim because of course in filing a lawsuit ok you had some evidence to determine that you may have a claim that you do have a claim on of ever seventeen that was the first tangible evidence when the contract proposal was leaked and said health benefits pre negotiated lay pre negotiated language to follow and that was the first tangible evidence that i could use as a basis duty of fair representation by mid march thirteen is that the date running from sorry the dates on top of my head but i don't believe i did again i don't until the november seventeenth reveal your are that was the first tangible evidence that could be used to support this judy of her claim that's before the court before then there was enough evidence to support this and of course in drafting a filing to play with the court counsel has a duty to ensure that the complaint is based on fact the argument is counsel that you are now before this court but your claims ought to have been raised other places and the claim you bring here today seems to suffer from some some failing with respect to whether or not there's been an injury for example your words are there is the threat of injury so the two issues the first i believe you are referring to whether or not this it's very clear under supreme court precedent cited in the brief that this court has jurisdiction not yes exactly can choose so than going to the injury of course when the primary purpose of this case is to prevent any injury resulting from this pre negotiated agreement not to seek better health and retirement benefits so i want to stop that from occurring you know before a person but just just so i can frame the nature of the harm you're alleging it's so it's hard for me to see but i wonder what your position would be if if it's all out in the open if the union says we're negotiating with this  company we've agreed to this and that limitation on what we'll do if we become a bargaining agent and then with a reasonable notice the people who vote vote in favor of that  then there's no then there's no problem at that point is that correct or not would seem like that would be a way in which the system could reach equilibrium you wouldn't have you wouldn't have to choose between a union that's going to demand unreasonable things or no union at all you could get a union that's pre agreed to only demand a certain limited number of things there's nothing wrong with that it's on the says notices there or is there something that i would submit there is i would submit that it's be a much closer question of course here you had the secrecy so it's a much it's a different deal but even if you didn't have the secrecy i believe that creates a conflict of interest just fundamentally incompatible with collective bargaining and it  sound i would no doubt asking the same question has that played out this it seems like your argument is best put as the present agreement is or representation is tainted that these that if you cannot trust the that's not the claim brought here because this court we cannot challenging the run right here is that there's this representation poses a threat it's the pre recognition agreement poses the threat so it's that backroom deal that we write act so it's the representation itself that is tainted can't be trusted i would say is that a fair way of thinking about it i would tease out its illegality because it's not disclosed and it's illegality even if it were disclosed to sharon and you want to talk about him all the same then that's confusing to me but but i commend you for being willing to talk about them separately but if you talk about them separately then you have to assume for just a moment contrary to fact that they were disclosed i'm having trouble seeing what the problem is where there's a conflict if they were disclosed because if you say that's an inherent conflict and therefore in effect you can't do it you are the you have a system which which naturally leans towards industrial squabble rather than leaning towards industrial piece right because you could lean towards you the system could create industrial peace by allowing workers to select a more moderate union well the second one which has limited what it's going to demand by negotiating with the company right you would think that that would be the least allowable but you're saying no that even that can't be allowed and that and i know that's not what's here because you're saying well all of that is hypothetical because there was no disclosure here i'm just trying to the conflict in the reason is is that when the national labor relations act was rigidly promulgated this issue actually came up there a biggish was called company unions and the argument for them was that employees should go to pick if they want a union that's more or less controlled by their employer that's employee free choice congress rejected that went that's going troll unions well it's here you have partial control when it comes to retirement contractual limitations that's what i submit there is a you know we're not going to ask for this string the first three years doesn't make him a company with respect to those benefits yes because the union entered into that before it was acting as an agent of the employees to use an analogy with lawyers if you like a lawyer trying to become agency the lawyer would say i'll represent you on this case and not another case but he could have been a lawyer couldn't agree with an insurance company to say any case i have against the insurance company i'll settle on these terms and then anybody who comes to that attorney says i want you  represent me against the insurance company the you know the you with the lawyer couldn't say well you know i have this deal with them i settle everything at fifty cents on the dollar because they're the client is deprived of an agent with complete loyalty to his interests the same is true here and you know see the union is an agent with two masters when it comes to health benefits and retirement the company controls what the union can seek on those terms there is no bar there is no contract no one has ever been a contract can you get that relief here isn't that the duty of fair representation you're saying they cannot be fair because they have this arrangement with the employer affinity yes from that this arrangement is both a conflict of interest and an act of self presentation first of all the question as to whether the a cruel of the cause of action depends on the amount of evidence and the answer to that is no the first claim for can was for concealment no substantive terms of the pre negotiated agreement but the key and seal meant and as judge pearson analyzed plaintiffs were necessarily aware of that concealment on september fifth tw when they attempted to file objections with the n l r b and the phrase appears in that filing with the n l r b by mr messenger about a secret agreement that phrase secret agreement is repeated the secret agreement could include pre negotiated concessions on september nineteenth theoretically one could but they knew it was more than enough is that enough i mean i absolutely understand your argument but is that enough to to to to sue once the representation becomes well they matter that once they become they have to representation that they have sued them only knowing what they don't know but i see there is something might be there and they don't know it and they know they don't know it but they don't because they don't know it they don't know what's there and they sue them i think their suit would have just been just as lacking in merit then as it is now that end of the issue they could have they could have came down on november seventh yes which is a relevant for statute of limitations purposes and the need to case is similarly distinguishable because again you have to remember there they're arguing concealment they're not arguing that's a substantive terms of the pr you just are afraid that there's something that's been concealed you could bring it as soon as you say you suspect there's that in the complaint your honor they allege that they were told that there was an agreement between the employer and the union and the agreement also involved access for the union to campaign bait that's alleged in the complaint they have evidence meeting rule eleven or whatever yes this this that there were that there was something in the agreement that limit of their benefits correct but i believe it's still that the district court was correct in finding the statute of limitations to begin to run as the date they entered into the agreement and you are one is arguing that there is an agreement they reason to think there isn't an agreement and it is between parties that need to stay adversarial in order to fulfill their roles i think that's the somewhat the argument that that's the argument in ken's cooperation and but i think judge roger's point is you know the to be made that we don't know what concessions whether these were concessionary the agreement was concessionary answered whether or not they have enough they had enough your honor the district court felt they had enough they filed pleading saying there was an agreement they filed pleading say their degree meant could contain benefit concessions the national right to work committee has brought numerous lawsuits including the montague case i believe in which you both participated to back to judge rogers question is your point that there doesn't appear to be anything new in hand for the for the plaintiffs here that they didn't have when they brought the l r b action so you can still work they do it both points in time they had the benefit of knowing their was a side agreement with without seeing it or there appeared to be a side agreement they brought the other action then and this isn't all that any different correct your honor but it's very important to keep in mind what they alleged as the violation in count one which again was concealment here correct that's what they charged in count one concealment it's absolutely a reputable that they knew about concealment you don't use the word secret unless you're talking about concealment so as to count one they were well aware as to counts two and three the district court had a different basis for dismissing those claims which is the fact that the union had no duty of fair representation at the time the agreement was entered into and i do want to address for a moment if i may now your honor whether the agreement was concessionary because i think a lots of because your honor it was never signed and you can see in the record that and this is that sixteen two page i d three zero nine that no provisions of this agreement are binding until signed it was never signed why defend this litigation why not just say ok we disagree with your reasoning but this thing is not binding your honor this litigation is part of a concerted political effort to weaken willing to do that now i can't is well aware of our position that the agreement was never signed seem reluctant to say i'm sorry your honor be willing to do just say i agree that this thing is not binding no your honor because it's well because mr you're arguing that it's not binding but know willing to say it's not by no i'm defending the honor of the union your honor and this agreement is not concessionary and i want you to understand that in the language that says that they maintain health benefits it also says unless  cases to defend your own i mean i understand you might want to bring but if there's no real dispute here that's why i'm surprised the whole idea was you were defending the terms of this agreement no the agreement never existed spinning hypothetically you could go into a room and settle this case by saying we agree that this never existed as long as they want to you know undo the rest of the damage they've done to my client's reputation by the  we agreed to something that were in the control of the employer other than the aspersions that would be ok by me i'm not here to settle it but i understand i thought that the argument here was that you would they don't want you your union any longer they never wanted our union your honor i understand that's the plaintiff's role they're very strongly opposed to unions but i did not know it's not but i do want you to understand because i'm not quite sure i finished the point that the agreement that health care benefits that were in effect in as of a certain date in two thousand and twelve would remain in effect throughout negotiations and during the first contract does not set a ceiling on health benefits it sets a floor because the next language after that which council has never addressing if it's a contract is if it were in agreement correct your honor it says unless modifications are agreed to in writing by the parties that language preserves for the union the right to propose improved health benefits if we have the muscle to get them we can certainly pay according to the terms of the agreement if it were final has we certainly preserved our right to do that th on a complaint for enforcement a contract implied in fact this same outfit community health systems two affiliates have sued my union in california in the central district and the i'll leave that to them the other fundamental misstatement in this case that i want to correct is that the plaintiffs would somehow no have no legal recourse if they could not if they were time barred on their right to sue for duty of fair representation they had no legal recourse back then and that's the as i just alluded to the montague case in which both judge rogers r opinion and judge cook on the panel in that big part very incisive and the in that case represented by the same law firm the national right to work foundation the employees challenge their employer and unions pretty negotiated agreement they said and they filed it as a set a charge alleging restraint in coercion by the union not a duty of fair representation charge because in that case as in our case no duty was owed at the time the agreement was entered into but in that case the n l r b initially issued complaint against the employer and the union and then the a o j dismissed the complaint and the board affirmed the dismissal in fact in that n l r b proceeding the charging party the employees who had filed the initial charge tried to argue that the pre negotiation agreement was a breach of the union studio fair representation and the n l r b refused to even entertain that theory on their general procedural rule that they control the complaint so the plaintiffs here could have done what the employees did in montagu they could have filed a timely and ellerby charge a legit under eighty one in alleging restraint and coercion in the exercise of their rights they didn't and that's why i argue they didn't have to well your honor i think here now it's not that i understood your honor but what i'm saying is the concurrent jurisdiction is not as between a charge timely filed against a union for engaging in a pre negotiated focused on concealment i want to just turn to counts two and three for one moment because those do address attempt to address the the duties owed by the union and the problem with those case those two counts as the district pointed out is nothing happened you can't just put maintain the union maintain the agreement in your complaint and make a time the agreements entered into in late july nothing happens the union is certified demands why isn't the not not doing something violation of the duty of fair representation or your honor the duty of fair representation do the fair representation cases in the context of negotiations do not judge the union's conduct in terms of proposals made you look at the final agreement the final agreement here would be a first collective bargaining agreement which we are far from being able to achieve at this hospital at this time though there's no burden oh never your honor we can't we have been unsuccessful as many newly elected unions are unsuccessful in reaching a first contract so but the point your honor is if the union has in some way in gauged in it would be analyzed as arbitrary conduct or bad faith conduct in a in reaching a certain agreement when the agreement is impacts employees is the time to raise a suit about it and that agreement we've never yet reached the nature of that would be a duty of fair representation soup thank you your honor my time is expired we ask that you affirm the district court think your honor may please the court a few small quick points the first of which has to do with the agreement right now the hospital in union dispute whether or not there is in fact an agreement but on this record at this time the answer to that question is very clear decide there is is not a side letter agreement or there is there simply is not a factual record there and again that's being litigated between the hospital and the union as far as the point of this case is not ripe until there's a collective bargaining agreement first of which this is somewhat inconsistent with the other positions the union is taking that this case of fall both too late and too early but that it's not truly inconsistent because they can say if it has if it needs exits to it's too early and if it doesn't need x it's too late well even if it's taken as an alternative position just to address it on its own as an alternative position the plaintiffs do not have to wait until there's a collective bargain greenman to bring this case for two reasons first the duty of applies to contract not just to the final execution of an agreement and second here under plaintiff's theory of the case there already is an agreement a side letter agreement that is binding and it is not merely a gathering it is injur in what way in terms of standing in terms of standing one is the future threat of there not being an improvement in health benefits then can we know that without there being an agreement with the  how can we know that that will all once there isn't a bargaining if there is ever bargaining that reaches an agreement that's when we'll know isn't it we will not know before it we won't be able to monetize exactly how much it may be but of course you know a plaintiff is entitled to injunctive relief before a harm b falls them so i don't think they have jelly of really to say to eliminate this pre recognition agreement so when there is collective bargaining does it matter you that it hasn't been signed and that it's expired under affinities position down below they say there's an implied agreement because affinity basically gave its side of the deal and it is the only at that point that the union turned around and said no we don't have a contract so affinity is arguing they do in fact have an implied agreement by performance but really in the manner of head near what what i thought the relief bottomline relief you wanted was to invalidate the obligation of the side agreement but now it appears that they don't even want to defend the valid validity of the agreement they just want on different grounds that are not as not we reverse and send it back in the district court says this agreement is not valid that's not a bind the hospital is and i believe it would if this court declared that agreement illegal that would be binding on the hospital and i can unfair i mean why did what if they have some  argument we never thought of they're not a party to this why did you sue why did you soon the union rather than the company the company that really the company doesn't owe duty for visitation i don't have i would you're saying that they lose out on their contractually obtained benefit because the other side the other side to the contract couldn't couldn't enter into such a contract or something like that right i mean it  sounds strange for you to be well if we get challenging a contract where the where you've sued the people who don't want to be done by the contract and you haven't sued the people who do want to be bound by the contract yes your honor it's so you're asking for  a judgment that you can then can use to confuse exactly what it is you're asking for you want us to declare it i'm valerie even though the only party that wants it to be valid is not a party to th hundred individuals that are represented a possible you'd probably be more effective if you just took some of that money and gave it to the union so that they could make a better argument in their negotiating company i take that