overlapping legal issues i'd like to avoid making redundant arguments so my plan of attack is to address all of the issues in this matter then most of them will be overlapping and then in the we get to the next matter of the consolidate appeal simply focus on those unique issues to that to to those appeals to study or the court  ok with that i'd like to reserve five minutes for a bottle in this matter you know this is pure arises from an unusual set of facts you know rarely is there a situation where the union fails to prosecute a meritorious grievance for and allows a statue of limitations to lapse and then after the employees have obtain legal counsel and filed a legal action does a union initiate a grievance and then while a claim for breach of the duty of fair representation is pending to reach a settlement with the employer you having laid that foundation the first issue i'd like to address is the breach of the duty of fair representation claim against the union appellee sag aftra now the union argues that its failure to initiate a grievance is within its within its failure to initiate a grievance within the statute of limitations is an exercise of judgement within the union's discretion now i do not dispute that unions are afforded degree of but on the failure to perform ministerial acts the usual deference to the union serves no purpose the case law is clear that the union breaches its duty word engages in ministerial error which is allowing the statue of limitations to expire after the statue of limitations has expired now the union the trial court rely on the union subsequent settlement while this action was pending to support a finding that the union slaps did not completely extinguished the employee's rights to pursue  claims now i believe this position is inconsistent with the court's prior ruling in this matter when held that post complaint conduct cannot be a claim for punitive or monetary damages as this conduct if proven on the merits counsel are you saying that the prior decision in this case resolved the issue of the breach of duty and i don't mean to suggest that what i mean to suggest is that there is a tension because previously the court was addressing whether or not the settlement agreement mooted the breach of duty the duty of fair representation claim and it said that post cock conduct after the breach shouldn't you know affected you to kaisha the breach of the duty of fair representation here that same argument is essentially being repackaged in different form although they're not saying that it mooted the claim they're saying that the settlement is evidence that there wasn't well the breach of the duty so there are two issues one is the relief that based on the payment from the employer but the union can only recover for claims are within the statute of limitations the union is still responsible for the differential based on what would have occurred had they not allowed the statue of limitations to lapse and you know there was a case law on that it also  public policy i think adopting the union interpretation would essentially shield the union from liability by allowing a union to initiate a grievance after a breach of the duty of fair representation and legal actions been taken and then settle potentially at a subpar value with the employee to avoid culpability creating here a conflict of interest between the union and numbers and i don't believe that's what the supreme court intended in your clients i think in the record indicated they repeatedly asked the union to move forward in the union dragged shiels so even though the union there an after after your clients had filed a lawsuit finally initiated a negotiation with the employer and got a settlement that settlement did  not affect the claims that had been totally extinguished because of the union's failure is do i have that right or my missions that's correct your honor and you know i would also add that i believe that there is a arbitration agreement of any kind between the employee union members and the union itself so there's no exhaustion requirement as the d of our claim and if sufficient allegations are played in the complaint for the duty of their representation claim then that would be a basis to proceed in federal court as to the employer defendants so in short no as to the d f our claim and we don't believe  your allegation that they didn't provide you with accurate or with any way statements well it's both there were some wage statements that were provided and but they failed to account for the relevant statutory penalties under that cause of action and so they were inaccurate and then they failed to provide any weight statements for all the decision was that they didn't pay now as the third cause of action the trial court found the back cause of action was preempted so i think this is a good opportunity to discuss the preemption argument the trial court found that the third cause of action and the seven cause of action or preempted the private attorney general clapper act and the logic there was because that a third cause when you say as to the where they did issue a statement you said they were an accurate then and accuracy and anyway involved an interpretation of the collective bargaining agreement i don't believe it involved an interpretation of the collective bargaining agreement in may involve reading the collective bargaining agreement but here there's not really what i didn't hear that it may involve what a reading of the collective bargaining agreement and the case is clear that a reading does not rise to the level of interpretation such to activate preemption you know there's no dispute here that the employer and so there's a formula set forth and there's no dispute about how the formula should be applied the fact that you have to apply the formula in the contract doesn't lead to preemption exactly your honor and you may not even have to get to that point in order to determine liability that's more of a damages issue because the defendant's acknowledges evidence that the defendants had knowledge that they didn't pay the residual is on then a reserve my remaining time for a bottle actually sorry one more point you know i would just note that this lead to men was not granted in this matter and there are multiple allegations set forth in our papers critically including the bad faith conduct and motivating factors for the catalyst doctrine that we believe could be added to rectify the deficiencies that the  shifting suchan here well i would disagree if you look at the do street act decision they actually awarded attorney's fees based on the breach of the duty of fair representation and they argued that it was actually part of damages it was not in violation of the american rule because and that's the decision to the defendants rely on primarily because here it's in order to effectuate the rights the employees had to obtain the attorney and he just reacted in may distinction and permitted attorneys fees to be recovered in this type of claim so we would argue that attorney's fees are recoverable and to the extent that the statutory claims are preempted the attorney's fees provisions for those statutory fees would also perform entitled to bring it as a separate cause of action why what's your best authority and not as just relief like another typical oil middle ear on or that was a you know a pleading decision and i think there's ambiguity as to whether or not it's a prayer for relief or a separate cause of action but we wanted to be very clear in the complaint that we were pursuing that and so i'm just what's your a someone who is seventy five percent of what they were owed yes that's correct and the reason why it was seventy five probably wasn't one hundred percent because the union took into account the financial state of the employer it looked at its records and determined that if it went all the way to arbitration it was possible that the company could be bankrupt by then and they may not get anything and that if we took it now it was it was a guaranteed payment to the performers and the court has said after the plaintiffs they had to file their lawsuit because you had not responded with action to their numerous requests so  it's important to note that in two thousand and twelve when this lawsuit was filed the union was not named as it defined it and when they filed the grievances the union was not a defendant and the union what difference does that make to the action of the  previously well it means that the union wasn't doing it response to litigation against itself and that while it's unfortunate the amount of years that passed there is no prejudice that can be shown from it  as to the union there is no claim that was extinguishing the only issue is the residuals claim that was under the collective bargaining process and while maybe i misunderstand your point so are you agreeing th at the portion of the claim against the union else shirted for the failure for for allowing certain claims to be extinguished but as far as the union is concerned under the collective bargaining agreement there was residuals and there was no discounting of the residuals for purposes of timeliness timeliness is an argument that can be waived it's an affirmative defense it must asserted it was never asserted by home by the employer the employer could raise it as a defense to payment and it has never been raised in this case and the supreme court has said that the courts are not to make determinations about say no harm no foul assuming argue when the union blew it in terms of allowing the statue of limitations to expire if you assert that as a defense to any claim sac where you have an ira traitors finding that it wasn't timely and then you come back i mean i would really caution the court to think about what the implications would be if you  take a determination that just barely just merely pleading untimely when in fact that was not actually a factor in the record what that would open up the unions to all kinds of cases that up to this point would not point me to the specific language that you're relying upon to support your argument that the timing of this issue does not present a problem for you so where it's looking at it terminations decision so it's important shared language it's on pages seventy three and extending on to twelve seventy four so it's right out actually the twelve seventy four the collective bargaining agreement does not allow enough time for  employee this case found a breach of the duty of family in this case the agreement was terminated and therefore there is first i want to point out that there is a strong individual interest in this quiz only found a strong individual case i'm not going to address the duty of fair representation claim against the union unless unless the panel has any questions for me about that there are the assertion settlements are you know for my client standpoint it was a you know it was a difficult settlement to swallow because they thought they had other defenses but in but the claims were here on appeal one of them the breach of contract claim for failure to pay residuals as we've argued in our papers we think that there's a serious exhaustion issue there in addition we think never seemed to argue that any of the criticisms were fake some trying to understand that myself so you could well there's actually three different steps to that would  be gone through and interpreted in the after network code the first one is whether the the plaintiffs in this case were covered performers under the or under the network quote the second one is whether the is assuming that the plaintiffs were covered performers you have to analyze the specific performer classification in the third step is  analysis once you determine the performer classification it's an analysis of which of the residuals formulas applies which in turn is based on analysis of the market or markets it which this particular but all that shows that it's a complex determination but i think the question that was put to you was we're how does it require an interpretation of the collective bargaining  steps that have to be calculated but if everything was clear and so still a ministerial calculation based on an interpretation problem well you know i think i have a different i may have a different i mean is there any real dispute here regarding the first two sets of your three part analysis that polly and clark are entitled to receive residuals under the sea mediate and in the kind of performers that polly and clark code to get to a point where you could figure out the residuals but now we i mean we we don't dispute that that these individuals are covered performers under the network code i mean they're purporting to represent a class of people we've never you know even got to that stage but we don't know if everybody there purporting to represent would be a would be a cover performer but as to those individuals that isn't really in dispute some of the others may issues maybe we haven't gotten to that stage if there are there any more questions on this issue so it do you see the wage claims failure to pay the wages and it's not just me it's not and then the second was whether or not there were accurate weights statements and so i was just asking you whether or not you see those as two separate we think they are all the labor code claims now that you know it's fair to say fair to point out that we haven't gotten to the other case yet but in the other case the judge real found that the second and fourth in this case the un reimbursed be business expenses and the failure to pay were wages were barred by the statute as he did in this case but in the other case judge real found that the failure to provide accurate w claims are clearly preempted there was you know this the the plaintiffs by their own allegation completed their services you know much more than three years before so the the the failure to provide accurate weight statements runs from the time that wages were two and the in this case the wages were his points i'd like to point out that look this is took years before there was a the initiation of a grievance and although the union may say no harm no foul right now we're at the pleading stage so you know there's no evidence in the record that the union you know calculate calculate all the receipt jools review had access to all the records to calculate the residuals and in fact there was no harm that's not before the court right now is before the court is whether we have pled sufficient facts based on our allegations for breach the duty of fair representation claim and i think it also creates a very problematic policy to allow a union and an employer to characterize the nature of a settlement after the breaches occurred and while the pending claim for breach of the duty of fair representation has occurred this case never got to arbitration there's no evidence in the record besides council statements right now that you know they were not considering the timeliness issue so i would urge the court not to consider that either i think the pursuit and computer cases that we cited which although are from other districts are not controlling on this court offer some guidance because they involve situations in which settlements were reached and there was a breach of the duty of fair representation and i believe in recent computer they did rely on the just react decision in the courts found that the settlements had not indicate the breach of the duty of fair representation that said this is a settlement of all wage claims from x to y do eat and that included the date that allegedly was on timely one that be clear evidence that the employer had chosen not to assert that and was taking this is a global subtle you know you're i would disagree with that how to deal with the nature of the release and what really is the union can release a number of complex claims it has standing to release those claims the question is whether there was harm because of the breach of duty of fair representation and whether had the union not breached or allowed the statute of limitations to expire whether they were selling that would have been for more and if so they'd be