morning your honor may please the court my name is joining me now i'm here on behalf of the united food and commercial workers local unions and twenty thousand grocery workers that we represent throughout southern california this case involve ralph's grocery company's persistent refusal to produce documents that were requested by charging parties over ten years ago but my question is to get some kind of a context what's this all about the salt started in two thousand and three  a collapsed and fell apart negotiations lockout ralphs and some executives did some really stupid things and here we are in two thousand and sixteen and i don't understand why this is still alive now must be a reason we don't we don't either it's because ralph ha good will that do you now proud of the audit documents include witness statements notes the way rouse orchestrated it's rehiring now i want to i mean your point was absolutely right that there is all this stuff that happened ten years  but it still isn't clear i'm not saying there isn't anything here but you win what's the consequence for you what is well still believe it or given for unfair labor practice don't you don't i haven't already won that hands down well the important thing for us is that that ralph neas understand that when we are owed documents i mean we take our our our role as the collective bargaining representative of these workers very very seriously and you do it and it rouses not going to turn over documents  that that they're required to turn over and then and do it on the basis of a attorney client privilege which they waived almost ten years ago through their plea agreement and through disclosure to the u s attorney's office then what's to keep them from doing that in any other information request that comes out i think the question is other than teaching ralph's a lesson ok ok so other than teaching them a lesson what's next i would say it's not teaching them a lesson it's it's getting the information that we're entitled to do with when you get it right well once we get the information will review it of course the autumn materials will see the witness statements who did what who orchestrated what how it was done in this way that nobody knew about it and we are we were constantly  negotiating when you negotiations with the company this doesn't have anything to do with the current case or controversy there's just this teacher off the lesson get the doc i'm sure not going to do it again but you're not going to do anything with the documents just get ready for the next one well what happened when the u s attorney on mass this thing seventeen ways from sunday you know exactly what happened we don't probably most employees don't even work there anymore a lot of them do we have twenty plus veteran employees who are still there and this is the only way for us to see so you get the documents what are you going to do with them in the context of pursuing an unfair labor practice players pursuing an unfair don't you don't you already have your the one that yes yes we're going to pursue a new claim on the basis of those documents but point the point is that we were entitle to these up in war time ago called the wal mart decision yes that ralph's hads as repeatedly you know hidden behind this i mean secretly it's lighting because you can fight no no it's not just that i mean this is this is but i mean of the of the key decisions in the board order but we are requesting remand to the board for determination of litigation expenses and that is why that is why we're here appealing right now to bring that up on the other so first there is a change in the policy and law of the board with regard to requesting litigation expenses in the past if you look at all the general counsel memos it's mostly for first part it's for first bargaining contract cases and that this these litigation expenses could be requested for a different type of case and in that particular case it was it involved an employer who was trying to enforce an unlawful arbitration provision so the so the general counsel stated that we could seek litigation expenses that party could seek litigation expenses for any efforts to challenge the employer in that regard and so that signified to to us that that we can get litigation expenses in the case the the board has issued issued remedial order so a sponsor in the past where it was not it was not addressed at the lower levels and we were hoping that the board would do that they didn't and that known where it came from what it's gone through a believe me we do not i'd we do not want this to live on at our forever we don't i think it's moot frankly and you're arguing about some evidence that should or should not have been admitted but the controversy over the overriding controversies moots gone well your honor we respectfully disagree i think the now the reason why you would say it's not moot just because you're saying you're entitled to the fees is that right that's your basis for keeping this alive yes ye position yes on the fees are correct direct that's the only thing that we're asking for and we're specifically asking for this court to remand to to order the fees and remand the board around the issue to the board for a determination of the amount that's it that's  jurisdictional argument and as i explained we do have extraordinary circumstances here if you look at all the cases cited by the board and even the case is decided by this court they were all distinguished in that they did not involve extraordinary circumstances and in one particular case their argument was presented that an extraordinary circumstance was that the board was too quick it was too quick and in in  forcing the board or are moving to enforce the border and that is not the case here it was a delay and it is supported by a fifth circuit case the board says a lot about this advice memorandum in among other things it says the advice memorandum was issued one year prior to the board supplemental order the union could have filed a motion for reconsideration based on that memorandum within the appropriate time period after the board's supplemental order but not do so and is not given a reason for its failure to do so your answer to this is our reason is that understand but you agree you didn't do anything for a year well we agree if you look at the record we did not file anything within that time period that sink you know we don't believe so because there are extraordinary circumstances here and because  good morning me please the court i'm timothy ryan representing the grocery company might you give the documents that suppression i would have asked to the reason is because the documents have confidential they are paternal client privilege there are the matters are not to be publicly they're all over the place you gave him to defendants get them in the in the criminal case that the company got him what was the waiver a privilege they were turned over well what will we can talk about the one or two point four eight issue about whether the they should have been admitted into this case the answer is they shouldn't have been because of the of the rule rule sixty under the federal rules of civil procedure they shouldn't have been released and that wouldn't be an issue if they had them but in terms of the documents what's what's the harm the harm is is it involves confidential dealings during the strike in the walkout involving employees including revealing who which employees work during the strike and that's where thing and no good can come from giving that to the union in my point of view let me let me start at the beginning a little bit in this case you raised that while calling the whole canning correct so why isn't this whole thing waived the whole milk canon argument twenty nine u s c one sixty i think the best argument is that it's an extraordinary circumstance and i mean just that extraordinary circumstance i mean the record shows that you did nothing about this until it got up to us well the extraordinary circumstance with any place to do it except we got a few kids and all candy decision came out after well hold on it was in the d c circuit the d c circuit decision was came down it did yes or so there was the d c circuit which is a very recognized court in terms of administrative law said there's a problem with the board because there are these resource of resource that recess appointments were of were were invalid and yet you had that decision you didn't make the argument correct that is correct why not because we were headed to this court but maybe you made a conscious decision not to make well i don't know how i would have made it anywhere but here you didn't make it for example you didn't make it to the l j didn't make it to the an extraordinary circumstance and what is an extraordinary circumstance and our situation is an extraordinary circumstance this is the first time in history the end of the nation where a president has made intra session appointments during the ten day during  you've got to make these decisions down below so that then we have the ability to even hear them well you know this judge owen suggested well i mean the law says don't raise it down below we don't get to hear it well the decision of the of the of the court  in the in the circuit right they talked about decisions of the board like this being void avenue sheo it was and so why didn't you make that i hate to keep jumping on this but why wasn't the decision made at the appropriate time well i think that the view was that the appropriate time was when we get to the circuit court because the more we can say know what you know that was the decision the hell with the board let's just go to the circuit court i mean we're a court of appeals we're on a course of a court of first resort and it's black letter law it's a the we did need to bring it back before the board to raise that issue before the board ok so let's assume for a moment that we have jurisdiction or twenty nine u s c one sixty to even hear this argument the next question is that are a number of cases that have held that in this knoll canning situation ultimately it's harmless error that so long as a properly constituted quorum with properly appointed members reviewed something it's ok even if a previous one was wasn't valid for some reason what's your response i understand that that issue is did depends on the type of error it is if it's a structural error or if there's a structural problem which is what the canny kay said about about the board here those types of decisions you can't read that the case of taint by just at the end of the case giving it to a newly constituted board who will kind of look back and bless what happened before or just review what happened before it's my understanding the law that in those situations and that's the that's the landry case  say we left that we don't buy that i want to go back and start this whole thing all over again no truthfully no one so i don't know i just don't understand this case this center this reminds me of the time i went to yellowstone and saw a bunch of bull  fighting why because they could fight well you don't want to go back and start over again that's where you had a well let me let me suggest mitchell we're speaking for myself we're not going to send this back and say the first of that the first thing rules and it's all over so if that doesn't happen  then you don't want to start again so we're going where the hell are you excuse me get again frankly what i would like this crackly but yes again i would i would that i would like to put this case i'd like to to restart the clock at that time with the two thousand and twelve decision had been issued and before the motion for reconsideration has been as been made and if the union wants to do it let him make that motion again but also like this court's role in the one zero one zero two point four eight issue the the issue of whether evidence can be admitted into the record that didn't exist at the hearing it did exist that's the problem here that evidence did exist you just hit it if this is not newly discovered evidence in the term that didn't exist everybody knew about it and i think the wal mart decision makes a lot of sense if it anytime during the pendency of this thing it's been pending her ever you waive the privilege your waived the privilege and it can now come in you're going to lose the privilege then let's assume you lose the privilege then you don't want to start over again i thought on a just done with this is all about well that it remains from point of view an attorney client privilege issue it's an important privilege and it's important issue to the company and it's in this whole thing is moot except for the litigation expenses will that again i'm sorry labor practice is gone it is now you're arguing about what evidence not to go into the to the decision on unfair labor practice but that's gone and as a matter of fact we after the second decision the company after the first decision the company complied with everything except turning over the attorney client privilege documents so that is the whole thing that whole thing has gone and there's been you don't want to start all over well there will be entitled to fees many of them so my belief and this is this is normal and all are be litigation the reason for the delay is new process steel turned everything back and then and then the no canny decision turned everything back and there was a delay after  delay mostly agency delay not delay on either side either party side what would be the consequences if we decided this whole thing is just mood except for the litigation expenses and dealt with that separately that that would be happy yes i suppose i gain in an r v proceedings there's no discovery so we didn't have a chance to find out what was going on in this case until we showed up for the litigation so i don't know it stands right now we have a nail j s ruling saying that the documents should be turned over correct right and we have a board order enforcing it right that's where we stand right now so if we were to clear moot this kind of gets back to the big  with a lot of questions i will give you one minute for a bottle ok thank you good morning and have a beer with the n l r b and we're here to ask you to enforce this order which is not moot but it is not moot because the supplemental order has what all board orders have which is and notice which is very important to be posted so that employees and everyone can understand what happened and what rights were violated and in this case the supplemental order has a different notice than the than the notice that was from the earlier one and well to two decisions and that is because of the internal audit was never allowed to be was never found to be required until the supplemental there's there's roughs one notice was i posted i'm sorry it was a ralph's to which is the two thousand and ten decision and i actually i'm not one hundred percent certain if it was or was not posted but it's a great i don't know i love that answer i'm actually not one hundred percent sure are was not posted i don't know if you police something like that and if we do we do in our in our well can't we assume that you policed it and then well as opposed to actually there was actually here we go again i apologize your honor there was litigation over compliance with ralphs to the end of the notice posting yes it involved what what was supposed to be turned over to the union and i believe it also involved again mr ryan may know the answer to that you don't matter that i know but what i  the difference between you want to new notice what's the difference between the old one that was posted and julie we're not really sure that one hundred percent the new other the new no you want now you're the new notice your honor is that there was an unfair labor practice that took place when the internal audit was not provided under section eighty one in five of the act to the union upon the request because there was no attorney client privilege and mr ryan with employees that roles are going to go crazy when they read that well that's part of what the board not that wants anyone to go crazy but with the board wants what ms yeah was talking about up here is that the union it's very important to the board in the n r a that employees have their collective bargaining representative entitled to information that they are able to get about the bargaining unit and this information in the audit is something that the union according to the board supplemental order was entitle to to there's many different reasons in a collective bargaining relationship that a union is entitled to information about its own bargaining unit in and what happened to them so in order to get that the union was seeking the internal audit and because the company never that i'm aware of argued that this was confidential they argued attorney client and work product privilege and because they argued that when the documents were discovered by the union to have been waived if those privileges were waved it became relevant and that information was properly introduced in this case and so that's why it's not moot it may be old but it is it moot and it's important so that we are able to have a resolution of the what type of relevant information is able to be turned over under section eighty five of the act just agreed to post that notice with the documents that would not suffice your honor because the order that the board issued is an order that requires the turning over of that audit information what practical effect is going to flow from the documents being turned over in this context the practical effect would be well i guess it would be twofold first it would be legally legally recognizing the force of the national labor relations act which is that a collective bargaining representative is entitled to information helping it serve the bargain we may not know they don't know what's in this audit regarding their own employees who were locked out and who were actually locked out in favor of employees who were illegally hired and it could have a lot to do with new negotiations for contracts just because you know that's one of the harms that's taken place is that the union is not able to advocate on behalf of its employees sufficiently when it doesn't get the information it's entitle to under the n r a so the practical effect of this would not only be posting a notice that says to the world we need to turn over our internal audit and we will not do this again withhold information from the union so there would be both a practical i think and in a legal effect well they can withhold it if if it's covered by the attorney client privilege i don't dispute that  that forever and everybody can do that only question in this case is waiver that's right i agree with that and with the board that's not a big deal in terms of whether they can withhold documents they can it's just a this is a case specific issue about whether this was a waiver right up to whether the wal mart decision covers all of them that's correct and we would say that when a union request information section eighty five of the national labor relations act says that is a part of a company's good faith duty to bargain that includes turning over relevant information is no doubt about epsilon less its privileged we absolutely agree and what happened here is if there is no privilege then the information is something the union is entitled to and so that's why it's important that this decision be enforced and it moved there was a privilege until it was w should there that i would not disagree and when not only would you not disagree you would agree i would agree and i also think that the twists and turns procedurally of this case any of which i'm happy to clear up for it for any of your honors if you need me to because of that the doctrine is that when there is a concurrent proceeding in one court in another court here then privilege can that's the holding of the wal mart case the privilege can be waived in these concurrent proceedings and so given that this case was still pending on exceptions before the board that it is the board's view that the rouse did waive the privilege and given that the documents should be turned over now i don't see that this was newly discovered evidence i'm sorry your honor i don't understand why this is newly discovered evidence i mean this is just newly revealed evidence and i think there's a difference in this context under one hundred two point four eight d which is a board regulation which is entitled to deference on as long as it's not arbitrary or the rule is what type of evidence can come in and the phrase newly discovered this correct has been typically and it interpreted by the n l r b as something that means evidence that was in existence at the time of the hearing however a limited exception as wal mart holds if there is an allegation of waiver so with the evidence is coming in not on its own merits but if it's coming in for purposes of establishing waiver then it can the the  is not interpreted as requiring it to have been in existence at the time of the actual hearings don't know that we know from the record what actually happened to the documents and we got this waiver thing there's all this stuff floating around about waiver but then what happened with the documents with the audit information do  we know that you know well i mean only thing that that we know is that the information exists is in rough possession and that they submitted it to the u s attorney and the u s attorney submitted it to the defendants in the mcgowan litigation right that's that's all that know that's all that i know about what happened to the documents and so that's why you know there's never been an argument by the company that these documents are confidential or that these documents do not exist none of those arguments have been made and so in the absence of those arguments the board does seek to enforce its order such that the union can have its ability to to represent the employees under under their bargaining represent a notice from to in the record i don't remember saying yes if you look at this it's the record ralphs to which is the decision from september thirtieth of two thousand and ten says that it incorporates rounds one which is the decision from february nineteenth two thousand and eight and in the decision from ralph's one of one nine hundred two thousand and eight there is an order that is issued by the by the board and there questions about the order that you issued first of all we'd like to say that i believe that the concept in those cases all whatsoever you label it be a harmless error be it cleansing taint of a second of a second proceeding after there's already been a valid board order on all of the relevant issues those cases doolan intercollegiate legit tech stand for the proposition that when there is a duly constituted board or a valid official when before there had not been one that so long as the issues have been reconsidered by a duly constituted board or agency or person then those then those the second decision can stick can stand and that's what we have here there would be no purpose served to go back in time to right before the motion to reopen when we've already got a valid board who looked at everything that was before the initial board in april two thousand and twelve along with the fact that there was no response from the company and looked at what came through from judge cocos decision all of which included things such as whether the motion filed by the union was timely to go back we know that the second board in this is you know the distinction between this case in the southwest general decision thought you also cited to us south was a general was a case in which the d c circuit held that there was a problem because the board itself is not equivalent to the general counsel who initiated the complaint so a decision by a valid board couldn't necessarily address the initial complaint being being issued by improperly appointed general counsel whereas here what you have similar to intercollegiate and similar tech in doing which is you have the same of body reviewing taking a look at what the same body had looked at that was invalid so we've got the equivalent going on here of those cases and southwest general is distinguishable i'd also like to speak to landry if i might my point brought that up landry was a decision that did discuss the difference between structural kinds of problems but what landry did not hold as the intercollegiate court in d c stated didn't hold that there's never going to be a inability to correct or take a to address issues that took place in an invalid proceeding whether or not that proceeding was or wasn't structurally invalid we know after new process in north canning the board has gone back and looked at cases again in re issued decisions and that has been held to be fine and what intercollegiate says where in every circuit in after new process i could say every circuit i know that after kno letter on those we didn't we did not because in the reason we also did not affirm i want to speak to the court's questions it's not that we don't think that these cases were now that the court has focused us in on them cases they were they were out of circuit and we felt like in the unique circumstances here there is enough to demonstrate that what happened the second time is essentially what happened the first time but that's an issue means nothing no it doesn't mean nothing what it means is i would point you to page one twenty four of the intercollegiate decision and in that decision what if they're saying with regard to the structural deficiency is that we're not looking to whether there is a harmless error from the the the the order itself because we agree that order is invalid contest that it's what took place to address what happened in that order and to address what happened in that order if you look what happened here you've got a valid board reviewing every single issue that was in front of the where we see that in the record that the board reviewed every single issue you see that in the board's decision in order the now the march two thousand and fourteen board decision in order that's it it is in front of this court and if you take a look the proceedings as they were before the motion to reopen talk the board says in addition talks about all of the the respondent not responding to any of these things and then go over in its exceptions the respondent the not separately challenge the judge additional find is that what you're talking about no i'm talking about right before that your honor in the middle of the previous paragraph with in addition the respondent in addition the respondent did not respond to i either the unions motion to reopen and supplement the record or their motion for reconsideration both seeking to admit the mcgowan documents evidence of the respondents waiver which the union filed in late two thousand and ten while the case remained for the board the respondent also failed to respond to the board's nov two thousand and eleven or so so the those reasons we do believe that the cases cited by the court for the second question that you asked us do support the notion that what happened here when you've got a when the company in the union got another decision from the does the supplemental order that essentially did what would have happened had had there have been a valid board in april two thousand and twelve that this was something that was proper and that this order should be enforced and what i'd like to do also is move on to the presentation that the union gave with i think your honour's discuss the attorneys fees issue or the litigation expenses issue absolutely correct that under section one sixty that was something that was never raised by the union and the union in fact never showed any extraordinary circumstances even assuming that which is not true that general counsel advice memoranda constitute board law which they don't is we point out in our brief that there was a change in law this this took place when they could have come in front of the board and so you know on that topic of waiver you also asked the question which i'll address the preliminary threshold question about whether any of  claims the company is making about void ab initio order are in front of you properly we did not make that argument in this case we are not making that argument and on this case we're not making that argument in this case because we feel that we on the merits of this case we feel that this is a legitimate board order i would also point the court the out as the court well knows that the so we may be right would you want us to just ignore it go ahead and sign it anyway we don't obviously we don't want you to ignore anything but what we'd like you understand is we believe our position is it's in this court's discretion to determine its own jurisdiction we in this instance have not made the argument when they first raise this case that we've not made the argument that it is barred jurisdictionally now we we we do believe that it could be wave a ball and that in this court's discretion the court could can conclude that it's way the ball but i think you know it is it is hopefully something you didn't like that word when someone used hopefully today but it's something that i think this court should be aware of that you know the decision you sent to us along side the s s c mystic decision both seem to have different holdings s s e mystic the d c circuit did say that raising the composition of a board panel could is something that could constitute in extraordinary circumstances no one canning itself that was a decision where the d c circuit decided that it was going to to look at this in the elko decision from the eighth circuit says that it's actually way that under ten under ten each of the act it's not something that someone can just raise first to the court and what i'm saying here is the national labor relations board is not taking a position in this case that it's  jurisdictionally barred nor on those you know on those two competing decisions but what we are saying is that once that is looked at should the court decide that it's got the jurisdiction to look at it we do believe that what's happened here i company and union have gotten a valid board order under the unique circumstances and procedural twists and turns of this case and we think that this non moot order is one that this court should enforce and i see i have i have a minute forty four left and i'm happy to to answer any questions if you don't think i've addressed anything that you me thank you very much i think you are  information that we wouldn't file any new you but the original you will be is not resolved it is still pending and that is still here and respect and that we have not received the documents and we have we don't have a call compliance determination and so we initially after ralph's one compliance proceedings did commence but and we did receive some documents but out of you know for example one of the documents it was it was these questionnaires that were sent out to employees about whether they were rehired whether they just information about them and the box that we received had half of the pages were blank and there were a lot less than what was what was actually sent out and so we disputed it we challenge the compliance and and because of this proceeding the board the region actually withdrew the compliance determination thank you council so  just briefly on the issue of compliance the footnote in the administrative law judge's decision tells you the status of compliance at least that point in time in the status was that the employer to report everything that was requested of it except for the the attorney client documents which were not ordered produced at least at that level in terms of what counsel just mentioned about they got papers were blank they got envelopes with ashes the question was give us everything that was in response to those letters and some people got these letters and put them in an envelope and sent it back to us we gave them those we gave them everything so there's nothing left to give them except their attorney client privilege documents are actually quite privileged documents thank you thank you counsel thank you all for your argument today in arresting case the matter is submitted and we are in recess