bad from the perspective of your office is that case good or bad un or loosely last i represented the union or the trustees in that case ok i didn't personally handled by i was involved in some of the discussions in our report the spirited discussion this case has some very interesting labor law uses in it and the labor practitioner now for forty years or more i enjoy arguing these cases and briefing them but it has these interesting issues in my view because the board lawyer tried this case was very sloppy about putting on an adequate record in most cases so i want to just jurisdictional aspect of this case which we briefed first in our brief and the board of course respond briefly in his brief because i think that is the dispositive virtually all of this case and otherwise this case will be read for some very difficult and i think destructive propositions i want to address in history the cases that deal with jurisdiction over hiring hall requests with almost no exception arise in the construction industry where there's a multi employer association nneka or smacking or something like that so the board is always found jurisdiction over the whole association by finding that is at least one member of the association who meets the board's jurisdictional standards can you point to any case where the only issue was whether the union had breached a duty to the employees and didn't actually award any remedy other than that the union had to give something to the employee rather than make referrals to employers that did what you're about to do that did what you're talking about looked at the jurisdiction over the whole group of employers no and the board has not come up with that except in the limited circumstance where is a multi employer contract but so here the claim is against the union the remedy is only between the union and the employee there's no remedy as to any employers so why doesn't the board need jurisdiction over anything other than the union because the section that were involved in section eighty one a applies only to conduct theater had a remedy against about referring people to employers and found things that the employers had done wrong in addition to the union but there's nothing like that here well that's a distinction between section eighty one eighty two that the board now lives in it's brief in fisher theater in the other cases we've cited the board expressly of the administrative law judge as approved by the board refused to grant a remedy as to those entities with the record did not establish that they were employers for example who cannot in brief there are lots of there's not going to be any interaction as a effect of the remedy ordered here that involves the employers all that is going to happen if the union complies is the union is going to give information it has to the plaintiffs there's nothing that involves the employers so why does it matter i mean the board has jurisdiction over the union why does it matter how braga is you could prove discrimination in part by inference from what happened to others i mean you can get discovery usually about more than the actual case so i don't understand i don't even understand your theory the premise that the board has jurisdiction over the union doesn't arise from the national relations act it has jurisdiction over the union because of the unions relationship with employers within the for example you know it has it has a relationship with the people the employees on this list it's representing them and our help are doing whatever it does when it sends things about them it has an obligation to them not to discriminate against them and the claim here is that the union did something wrong to this employee it doesn't really have to do with the employers it does for to let me give you two examples and point to statute because that'll answer the question there are many employers out there on the board expressed he doesn't have  what public sector so the question is does the board have a remedy to tell this union you have to provide information or deal with him fairly as to a public sector employer or a church organization or tribal organization and the board is very clear in eight be cases against unions in eighty cases against employers it has no jurisdiction and can order remedies given that it has there's at least one employer here that has jurisdiction over so once that happens at least it seems to me maybe you can correct me but in general if this was just a case of civil discovery and you're trying to prove a discrimination claim you can often get information about what the employer did to other employees because it might help you figure out what they did to this employee so it seems like once there is a basis for jurisdiction we know there's at least one employee why can't the board give them information around it whether there's jurisdiction over each of them or not to help this employee figure out whether there's a pattern of discrimination well that's not the board's tieri in this case that there's some honor because again let's go back to what happened we know there's one employer of whom the board has jurisdiction in las vegas trump the tropicana las vegas we know that that entity only exists as far as a record reflects from january of two thousand and fourteen on that's the date of the contract before that it was a different tropicana so that's the only entity we know that this union deals with many other entities and employers well we have no evidence about whether they're public sector whether they meet the co we don't have evidence about whether most of them have an exclusive hiring but the union at one point gave the names right you gave some list of names and then the next request was you didn't give me enough information that i can't contact them you only gave me their names so who were those names i mean at some point you thought you could give this list of names and we're not content to be clear with this fight is about is not the names the the fight here the argument is about the phone numbers in the home addresses so did you give names of people who are only working for public entities you're trying to say you're this is about tribes and public entities but is there any evidence that you know your are what we gave them was a list of referrals to one entity and that was one show he asked about he wasn't satisfied with that but that was given to him fairly promptly after he asked for it it was just the names who got referred to jobs and we're not arguing about names because we agree that nobody can reasonably determine whether they referred properly without having the names what we're arguing about is the the the more private information that we've always kept private which are the phone numbers in the ho addresses and i want to go back to the statute because we're all to the dock in the statute here the statute defines employ twenty nine u s c section one five two three the term employee should include any employee and shall not be limited to employees of particular employer so i work for tropicana las vegas i'm playing i look for work at tropicana i'm an employee i look for work at another employer over whom the board has jurisdiction i'm employer but what the statute also says after going through some exclusions is and this is added in one thousand nine hundred seventy it says expressly that excludes employees having the status of an independent contractor employed as a supervisor and so on or any other person who is not an employer as to find who is not an employer so the statute carefully excluded someone from being an employee unless the employer is employer within meaning in the act meaning tropicana las vegas so if mr elias this isn't in in section one five two three it's a definitional section employed so if mr elias wants information about what's going on with an entity that's not an employer within the statute he's not an employee for that purpose he may be employed for other purposes and that that is much more prevalent today because of a lot of public sector unions asked me in sci you that have large public sector memberships and all have a small private sector membership employers even if the board doesn't have jurisdiction and that's that is the fundamental problem here is there any evidence here that what you've been ordered to give is about public sector employees to know but what it what we what we know that again the judge was more careful he said only give it has to signatories and we only have one signatory that's relevant although there was evidence of some other contracts but the board said we're going to use our  traditional remedy which was we're just going to say give what's in compass by his letter and this letter asked for all referrals and again the burden is on the board to establish jurisdiction and we made that clear when we tried the case our from  of his initial quest went back to two thousand and twelve he wanted to know who had loaded out a show not at the tropicana but at the venetian had nothing to do with the tropicana recommended  yes for other reasons yes but i thought i did but i just want to make clear that i want to be clear that what the board did was make it mess it up more frankly by simply saying get what's in the letter because the letter said i want all referrals and the board made no effort to prove that and you know that we should read the board as incorporating the clarification of what was ordered i don't know how you do that because they express lee said we're substituting this for the judge's order but there's a question  order to try to so they just said whatever the why are we talking about i mean it shouldn't be assuming the board is adopting that interpretation of the requests we don't know what they're doing because all they're doing is rejecting the ale j s ok well let's assume the board is adopting the l g s interpretation of what the letters requested than what is the problem well the problem is that that is all the issues we address for example he's asking for information and the six month issue let's just address that so we've we've we've made it we've come to the court's attention that the board has in some cases said you get to go back five years we understand that in other cases the board said johnny go back six months the board has not resolved that question time at the statue of limitations now that's right so i'm not going to request within six months of when he was denied these lists no i i want to correct myself we understand that the board charge was filed within six months of the february request and the april question what we're saying is that the board is a remedy in cases has said we will only order a remedy of getting information going back six months from the date of the request s two cases you cited for that both had situations where in one of them only six months was requested and in the other i think the parties and stipulated to six months i don't understand how if there are only two cases in your brief that you have for the board is limited to six months or only those two it's not very persuasive if it is persuasive not because the board adopted it and because i think one of them refers to another there's a third case was a reference to the six months and the board in the other can and so is the six months that he did this within six months of being not given the information he wanted if he eventually files a discrimination suit using the information you may be able to say look it's been too long it's a statue limitations but i don't understand how you have a statue of limitations defense right now about giving this list when it was requested within six months even on your theory that the statue limitations the six months that the third case had no rights local one of two which we cited there's a six months discussion in that case because otherwise what the is saying is that you sir have an unlimited right to go back forever when there is no remedy beyond the six months before the border and the courts to resolve these questions and my only point here is we have a line of cases saying six months a line of cases  has no limit and this case should be remanded to the board to explain why it is in some cases they approve six months in this case they didn't address an issue i'll give you one minute for about a  unions making to so emphasise what's really at issue in this case the board found a single unfair labor practice which is that when the elias is submitted information requests regarding this exclusive hiring all the union arbitrarily refused to provide the bulk of the information and so what the union has done here is to improperly frame this as a jurisdictional question in order to place an impractical burden on the board to to determine the jurisdictional status of employers who know and even knows the identity of yet because the union has not provided the information and that's simply not a jurisdictional question as we point out in our brief section eight a involves a labor organization which it is uncontested the union is a labor organization operating exclusive hiring hall and its studio fair representation to statutory employees it's been uncontested throughout this litigation until the union's reply brief that the elias is worse statutory employees because the status of employees is not vacillate based on what potential employer they might be referred to if you are a user of an exclusive hiring hall  which is referring employees to employers you are a statutory employee even if you are not currently employed by any entity so i would point out that the union has waived that argument in its opening brief it's also  section townie of the act because the union did not make that specific argument that the allies were not statutory employees so at the point where it's it's essentially conceded that this was a labor organization and employees there  no jurisdiction a requirement with regard to employers because there is a question of jurisdiction which is the board's authority to to find an unfair labor practice and to order an entity to do something and the only entity ordered to do anything in this case is the union and there is a totally separate question of the merits of what is an unfair labor practice as defined in section eight of the act and i think some of the unions arguments would go to the hypothetical merits of an end for labor practice for example we concede that if you have a public employer for example that there is no statutory duty under the act to provide hiring hall information with respect to that employer but that goes to the definition of what is an unfair labor practice by a labor organization and the reason i speculate that the union has has framed it this way is because they want to place this burden on the board because there is no evidence in the record that there are any public employers or non statutory employers that have an exclusive hiring hall relationship with with the union and that are covered by the elias is a good faith  request for this hiring hall information which is discussed at length in the administrative law judge as decision as a firm been adopted by the board i'd also point out that as a general issue  board unfair labor practice proceedings are frequently bifurcated proceedings so the question which is really before the court here today is whether there is unfair labor practice liability whether the union has committed an unfair labor practice and whether the board's general order which is its standard remedy in standard order information requests cases it within the board or medial jurisdiction there are also frequently secondary compliance proceedings where if there is any sort of question about the contours of the alliances written information requests those could potentially be resolved in secondary compliance right and i have to concede you know contempt is a possibility once this court issues an order but i think if you read the board's decision an order in full which adopts all of the administrative law judge's reasoning that the board's order is reasonably clear there's there's no evidence that public employer information or other information to that effect would be included in the order because union has produced no evidence of that what they haven't done is to make this procedural argument that the board somehow did not mean just to risk external evidence or a burden i also point out if if you had a hypothetical case where the alliances had submitted these information requests and the union had said ok here's this information we're not going to provide these records because they go to a public and a d or a non such a tory employer and we don't have a duty a fair representation or no statutory duty to provide that information that that would very likely be able to get a made a reason for not providing that but the union did not do that and then this case they provided no explanation for for not providing the bulk of the information other than privacy right correct they the union president unilaterally cited the fact that he had a problem with providing addresses and phone numbers and so that was the only rationale given but as we point out in the brief the union to not provide the bulk of the information including any information at all in response to the why is the second information request so they didn't even provide the names or the identities of the employers so we would know here today whether there were any public employers there was just this one unilateral statement that a single union official had a problem with the names and phone numbers which i would point out was was contradicted by the union business agent who had prepared a list and was was ready to hand it fair representation but also just like to to mention quickly that the question of whether there is a six month limitation judge freeland as you pointed out that the two cases that the union sides in this brief just do not stand for that there is not a line of board cases where the board as limited these requests to six months in fact board cases say the exact opposite for example you have the electrical workers local twenty four case which order the inspection of records going back ten years just to cite another example of presumably many you have the bridge ironworkers local twenty seven case where the union was affirmatively ordered to produce eighteen months of records and that that board decision was in force by this court in an unpublished order but as we point out the reasoning is that employees have a right to know whether they're being treated fairly or if there is just a negligent irregularity with the hiring hall which is totally separate from the question of whether there is a independent unfair labor practice under which the union has been discriminating against employees or something like that this year an unfair labor practice to conduct is referring to a statutory employer so again that it's not a jurisdictional question it's a question of once you have an entity which is regulated by the national labor relations act and as a labor organization whether certain conduct is an unfair labor practice and if a union is performing certain conduct and done for labor practice requires a showing that there is a statutory employer that's american issue but again there's no evidence here that that there are any non statutory employers and even if there were the only unfair labor practice that the board found was that there was this single action which was arbitrarily responding to these information requests and many things going into the boards finding of that arbitrary conduct foremost the fact that the union just did not provide any explanation for why it was not providing any of the information aside from the privacy claim by the union president i'd also i'd also point out just quickly addressing the privacy concern i understand the union to be making to discrete arguments the first is this first amendment associational privacy associational first and then the right claim and as we point out this court has decided a very similar issue in the electrical workers local four ninety seven case and the second aspect of the privacy argument i guess is the question under the board's test which incorporates detroit edison balancing into the test by having this third prong where a union can show a legitimate interest such as truly confidential material that in this case there just is no evidence of such a policy or of employees ice potation of confidentiality or any real reason for why this information was not provided and why the alliance's were not allowed to to inspect what was going on with the hiring all that they depend on for their lives and i see that in my five minutes of well u nless the court is any further questions for the board allow the interview good morning aaron solon for gary elias may it please the court i only wanted to add two quick points unless the court has any questions for me and i'll yield back the balance of my time the first is under jurisdiction of the supreme court in one nine hundred forty seven in phelps dodge which we didn't  in our brief but is important to the arguments raised in the union's reply brief that gary liason is not technically an employee under the statute of the supreme court decided one nine hundred forty seven that the act for tax employees or potential employees pretty higher and that's three thirteen us one seventy seven in addition i just also want to point out that the first request that was made by mr elias pertained to a show that was not at the tropicana and pertain to a different employer show at t venetian the union disclosed the hiring hall information in that you can find the disclosure at one twenty eight through one twenty two of the supplemental record and that's for the show phantom of the  opera so when the union claims that there's no evidence that it operated a hiring hall for any other employer but the tropicana well they gave up record haul records that showed that they referred people to phantom of the opera show daughter at the tropicana and this request this answer was also come incomplete because it did not include the list status of the employees without the list status of the employees there's no way for mr elias to tell whether or not he was unfairly passed over whether or not the refers were on the a list or the b list is less the court if any of the questions also tout thank you counsel will give you a minute for about all we raised the statutory employer issue employers so that he would be employed visa be them you can be employer employee versus one for here i want just the privacy issue if i can because that's really from our point of view the real problem here i may take just one couple extra seconds to do that that is that the evidence in the record was that daniel cook said we've never provided names and addresses that was not rebutted and when was that matter because the union says we have a privacy interest in protecting and the duty of fair representation not to disclose addresses and phone numbers will tell you names but people expect privacy and having heard the first case or today things are different in two thousand and seventeen than they were in the  that's what we tried to do in this case and the there you didn't you didn't offer this information and say i will give you this information as long as you sign something that says you only use it to call them to investigate your claim i don't think you did at least even said that i'm sorry we did do that we made that very clear that rather than a protective order what we said we would do is what we've done for everybody else who wants this access what our process is if a member wants to contact another referred or member on the list you let us know we'll get ahold of the other person and if they so let's assume that's not an ok remedy did you ever say i will give you the information in the board says you need to have which is their contact information and their names if you promise to only use it for this purpose or what we did was next relevant issue that i remember was daniel cooke told me that he had a problem with addresses and phone numbers not beginning my reply to mr cook i just as a parent article mr lies have been a former officer your cover your time so you have five seconds to wrap up my reply to mr cooke was that address and phone numbers were there because of the case law but it was boilerplate and he then said and should he agree to put me through to reference via the dispatch system in other words in the past refers have been dispatch