every five minutes for about a foot good morning runners my name is david hannah and i'm proud to be here representing local one twelve of the international brotherhood of electrical workers and its business manager david smith mr smith is in the back of the courtroom local one twelve is a local union of the i b e w which is geographically located and kenwick washington business manager is the highest ranking office within the i b e w structure the business managers essentially the boss of and i b e w local union by statute business managers are elected periodic lee every three years in david smith's situation he was actually you know actually began his career as a business manager having been appointed business manager by the executive board with a prior business manager a fellow by the name of wilcox and was removed from office when mr smith assumed office as a business manager he inherited a staff two business representatives slashed organizers and few clerical employees including the plaintiff appellee here ms francisco farrow mr smith as the record indicates retained those staff members up to the point of his fellow who was running against mr smith for business manager not surprisingly ms francisco farrel supported her fiance and i will actually mr smith did not discourage her from doing so however during the course of your life and particularly there after ms francisco farrel showed a contempt for mr smith and mr smith's administration doing what he believed the law  titles him to do exercising his plenary power as business manager under the i b e w constitution and bylaws mr smith elected to discontinue his francisco's farrel services and dismissed will staff member of local one twelve and a member at the same time during the course of the campaign miss francisco farrel did some campaigning for her fiance but it was primarily in the realm of the lobbying executive board members on her fiance after she was dismissed she filed suit claiming a violation of a right of things including a violation of the l m r d n a saying that this was a retaliation for her exercise of rights under the labor management reporting in disclosure acts free speech provisions if you have been removed first of corning her fiance the verdict was returned in the fashion that it was was that the jury was not properly instructed on what the criteria are what the elements are of an l m r g a claim the jury was given two different theories for liability that well the jury was given to instructions which read very similarly that sort of combined two different elements and that was part of the a confidential or not a confidential employee or the vast she was retaliated against for the exercise of rights that really is not a proper construction of the interplay between sections one hundred one six zero nine and one of two of the elem r v s under any of those statutes under any theory in which l m r t a plaintiffs proceed they must show that detrimental action affected their rights of membership no matter what theory you proceed on you must prove that and neither of the instructions on either of those alternate theories require the jury to find that there was any impact on her rights of union membership and in fact there were not she enjoyed the same membership more as the day before and the day after her discharge she exercise those rights by filing internal union charges against the business manager following her dismissal she remain it was telling people on the phone the business manager that had just been elected had been in place too long it was telling people on the phone that the union needed to change and that this administration was not appropriate administration when some of those things protecting her right they absolutely were protected in so far as of her membership had been stripped if she had not been allowed to run for union opposition if she had not been allowed eternal union charges if any of those rights of membership had been affected they absolutely were protected statements what is not protected and supreme court was clear on this in construing statute and congress's intent is what is not protected is the tenure of employment has a union employee for the exercise of those of those statements throughout our brief there are cases the most recent of which involves a teamster local and this is the third circuit case staff members who were removed from office when the union was placed under trusteeship there was an exercise of union rights and the third circuit was very clear in reading the supreme court the congressional history that the l m r d simply was not designed to protect interests and union employment as opposed to rights of union membership let me ask you yes assuming that we agree with member under federal law by terminating her as part of a deliberate and purposeful attempt to suppress dissent within the union now without yet addressing the question as to whether there was mentioned evidence for that is a violation of federal law if he was about section one of two claims if the person that we're talking about is a non confidential staff member of a union but what every court sense that has said about section one of two claims which is this purposeful and deliber case law talks about i think your story of efforts to suppress the case law hocks about situations in which for example i mean the more first half of cases perfect example where you've got people who are in a position of authority most particularly elected union officers who are removed to send a signal light signal does it send if a disloyalty clerical employee is discharged that is not i should not think going to cause anybody to not come out of it did not as the record was clearly indicated did not cause the discipline or punishment of any other of after our reply brief that you know those who oppose the council in the course that you are going to rely on your honor i found it sunday and i did not getting back to to to report point judge pleasure regarding this this is one of two claim issue what the plans appellate needs and what she does not find is case law establishing some form of exception in the case where you have a one or two client on behalf of a staff member there isn't any law on that point and i would draw the court's attention in that regard we're in the world of eleanor da cases of course you have all you have elected union officers you have appointed union officers you have appointed staff who have policy making or confidential authority and then staff you not there aren't very many cases out there involving staff members who get involved in the new politics who are  regard what you had there were three appointed staff members who were dismissed this is a this is a seventh circuit decision from two thousand to three staff members who were discharged for disloyalty  for not supporting the candidate who prevailed in the election stifling dissent argument was made in that case in an attempt to amend the complaint to add a section of one of two pla permitted to do namely quote fire any employees on the basis of disloyalty to him is exactly what mr smith did and he did nothing more throughout the night circuit there are literally thousands of local unions that are headed by elected business managers or secretary treasures or presidents the term varies the function is the same many of them have significant of significant size some have small steps but all have this issue in common every time there is a union election the staff members either support the incumbent oppose the come incumbent or remain neutral these elections are often heated very often they are heated staff is often vehement in their support or not support what we believe the law under finnigan and staying out of the way are very different things as you well know and all that we believe the law permits is that the retained union officer or incoming union officer be allowed secretary is also a member of the same union or cases are you along in support of where that was part of the facts well actually branch was one of those because what often happens   to be hired out of one of the grocery stores to work in the union office retainer you have c w membership for purposes of benefits and yet become a member of the opi you the office employee that's what i meant by  employees are and will employees the incoming officer can clean house get rid of all those who are disloyal it would have all of those who had their heads now and even go through and get rid of everybody in point the mother in law as to this case where the employee that will well i think the question was what about people who remain neutral and yet my state you're correct in that if if the employee had remained neutral the union like we have two home that is correct although in the context of your lack of support for me or your several start up by responding to several issues that mr han a raised on behalf of local on twelve and mr david smith excerpt of record thirty eight and you you have the chairman ation letter of august tenth two thousand and one and what is it at issue here today is the notion of speech the only marty a was passed at a very critical involving unions and out of that they passed the elem r t a and one of the important amendments that they passed to the alamar da to make sure that unions like local one twelve were democratically governed was did have something called the bill of rights and in that bill of rights members as terri francisco for a was a member of the international brotherhood of electrical workers local one twelve a member in good standing standing she had certain membership rights and one of those rights a right of speech which is at the heart of this case today and if you look at excerpts of record thirty eight in that letter mr smith advised her that he was ending her employment and he was terminating our employment because he says that in the second paragraph a second sentence the members business is not well served when some staff member do not support the elected leadership and speak against it i have received reports that she wants thirty yourself and the election campaign against me one of the things that he terminated her for was outside of the office at a social function she approached another member in her capacity as a member and tried to persuade that person again exercising her protected speech under the alamar da to convince that person to support her then fianc chris which strand for i think the retaliatory destruction if they find it first if they find it offend again that she was a non policymaking employee or a non confidential employee and she was and the jury find that there was substantial evidence that she was retaliat coming after that the lynn case and the murray case i would also point out the court there there's not two elements here that there were in this case there's actually two separate claims that the jury found record regarding my client but is the fact that one month after one month after this this this election was held chris which strand who was involved running against dave smith for business manager he was removed by the joint apprenticeship training committee something that he served on as a member and if you look at the if you look at the record in that case from the trial the reason why he was removed according to mr smith was  t he had been involved in the election against mr smith and that he had stood up and spoke out against my client terri francisco feral losing her job simply because she had exercised her speech rights protected  there we listed the fact that she had complained that she felt their activities both before the election after election had been spied on and monitored that was part of the record she had been complaining about how she'd been been treated in the office after she  notified mr smith that she was going to support her fiance and i would just also point out your honor in the in the notice of appeal what mr hammond is taking exception to is the instructions that were given he's not  seven being given the court should give the given instructions that he proffered twenty four and twenty nine but those instructions are from the sixth circuit they are not from the ninth circuit nor supported by the united states  they clearly set forth a correct statement a law this question of membership rights is a difficult one for me and i'm i'm struggling with the i'll tell you openly this is an area of law with which i am not intimately familiar from justice white in that opinion i'll just per phrase he said that if the case involves speech it should make no difference that the officers elected rather than appointed the resolution of the case like this turns on whether an officer speaks as a member or as an officer in discharge policy making employees they were not like my client who was a clerical employee who by the way was not hired by mr smith she was hired by this or semester predecessor and she worked in that office for for seven years and there's no evidence that she had been anything but a rights i think her union member right that was violated was her free speech rights and which is protected under the bill of rights she has a right to campaign for the member of her choice she has a right to speak out for that member and again in the lynn case it doesn't indicate that she has to prove necessarily a direct infringement under the grandmas case if by falling into one of these exceptions by being a non policy making employee if she's retaliated against if she's discharged from her union employment because she supported someone other than mr smith and spoke out in the capacity of a member that that is considered a claim a violation of the elem r t a and again i would just point out the court we have to separate we have two separate claims so so if for some reason i would  court you you not find in the first claim to have for affirmative there is a second claim here and there's been no there's not been nothing in the in the appeal where the union mr smith a cla the record at page ninety six the court not only took into consideration punitive damages but also took into consideration all of the evidence that had been presented at trial and that is that is that directly reference there in the record at page ninety six there has to be a finding of that this was harmful and not harmless error and even if we are to this and even if instructions twenty four and twenty nine were given in lieu of six and seven that the jury would have found what the district judge himself said about the instructions that he gave because this was alluded to and i think it's the salient point i guess what i'm driving at is i'm not sure that sixty seven really deal with the issue of whether or not it's the responsibility of plaintiffs to prove that her rights as a union member were personally affected by her terminations from employment the distinction being that federal law is designed to protect union members involving union rights and their rights as union members and in this situation there must be a showing that the term a nation of employment affected her union rights the court made that observation and yet gave the instructions that did not contain that element that is the mistake that brought us here do you agree with as a mischaracterization of the law the misstatement of the elements the way that the instructions were combined into wanted struction that's it that's all contained in the in the record there was nothing about six and seven that we