policy and according to back this includes fees for contract a ministry here local seven hundred fifty two is referred to it which is a percentage of wages is periodic uniformly imposed and not devoted to a purpose and democrat public policy purposes such as for hiring however the argument is that you know you have to get to the per visit or to find the fees lawful because they're not discriminatory under the process speaking of whether there  to require payment that be under the provision where the national labor relations act or rather other sources union wishes to claim but here there is a presumptive duty of service and taishan violation for at least two reasons the first of which is noted for his back that was the analysis for contracting this ration that's a type of fee that mississippi can ban under fourteen and that's the holding for example of the seventh circuit in sweeney and also the d c circuit in plummer's local one forty one which acknowledges the fees chargeable under back under union not to my understanding your honor at least on the face of the complaints this is what it's called the six motions to the records limit of the complaint the union's demand letter said you either have to pay union dues or referral fees as a condition of o being referred through the hiring hall and so i can't say on this record if the union fee or the union dues are the equivalent to the referral fee charged to mr simms to the extent however that becomes why why do we have a problem now and he has been very clear for a long time what the rules of engagement are wanting to use an article that applies to this kind these kinds of arrangements what is there about law to my knowledge this is the first federal court case to actually consider that very question it quite frankly doesn't come up very much and so the question and the hits may be a reason for that yes just in terms i believe most people who use hi generally tend to be union members you don't see as many nonmembers just given the control the union has over the individuals employment so it's been very few cases but that being said that is that is now the question before this court and so earlier been referring to were is a referral fee lawful under the national labor relations act you for example houston time cases to that effect and so that was decided in the past although houston maritime didn't directly address the legality of a hiring healthy it was more of should hiring hafiz be refunded as a remedy for other discrimination in that case but the legality of hiring hafiz under the national labor relations act only proves why they can be banned by state right to work laws under fourteen b fourteen b allows states to ban the fees at the end all or a otherwise prohibits i'm sorry otherwise permits so if the national labor relations act permits the charging of this hiring healthy and states can ban it under fourteen b that's the symmetry of the law and i submit the union's position the district court's conclusion upsets that symmetry in which the court says yes this fee can be charged on the national labor relations act but no it cannot be prohibited under a right to work law if you're right the payment of referral fee is constitutes membership in a union which i think is your argument and you have to have you have to go through the union fee that is the membership one isn't that make it a close shop which would be prohibit well it could it could be if it's equivalent in the same way so this in the same way that a union couldn't require that someone to be a full union member in order to become employed that would violate necessities right to work law so too would requiring the mr simms pay a fee in order become employed violates the right to work law and i think these questions are moving into the question of whether fourteen b is limited only to post higher conditions of employment as the district court concluded as its basis for dismissing this portion of the complaint and i submit the first fourteen b is not limited to costar conditions of employment in that it was the union's fee as opposed higher condition now for most fourteen b refers to conditions of employment that refers to conditions of obtaining employment just as much as conditions of remaining employment that was the conclusion of the district court in callahan which found that michigan's right to work law which applied to conditions  year continuing employment could apply to conditions of obtaining employment because that phrase how it's used within fourteen the reason is unfair all show up here are a fact question here that is to say whether the payment is just a payment as a reasonable reimbursement for the pro rata expenses of the hiring hall as opposed to some kind of condition of employment well it's a condition of employment or honor the union asserts that this is per potential others since doesn't challenge whether it's a reasonably limited to the cost or reimbursement but under mississippi's right to work law exactly what the fees used for is irrelevant so for example under back a union can charge employees fees for the pro rata share of contract administration collective bargaining yet mississippian all of the right to work states can ban such fees and so to hear irrespective of exactly how the union spends that the weather goes towards the hiring all union membership expenses it doesn't matter if it's dues or fees within the meaning of membership under fourteen b that is a fee that mississippi fourteen b isn't limited to post higher conditions of employment because it refers to the phrase conditions of employment not just conditions of remaining employed and the district court in callahan can screw the machines right to work law that way in fact almost all right to work l mississippi's recognize that distinction in which they apply to conditions of employment or conditions of remaining employed but you don't have a case that extends that principle to this specific situation is that right callahan does in callahan the union challenge michigan's right to work law and one of the grounds that well this right to work law could be forced against hiring all fees and that's not permitted under fourteen be the district court disagreed and said as long as the employer's involved in fee is in fact a postcondition requirement of employment the fee is a percentage of wages that is deducted from mr since both happened after he was employed and also mr sims is not in fact a new employee every day he's worked consistently equipment for many years he goes to work every workday morning just like everyone else and he has to check with the union hiring hall each day but he is not in fact a new employee each day either as a practical matter or for that matter is a legal matter under section eighty three those provisions require that you can't charge compulsory fees until you are thirty days after the beginning of such an appointment or seven days now that limit is in fourteen d v even if it was that time limit according to the board accumulates cumulatively in other words if you have a reasonable expectation that you're going back to work the thirty days continues to count you don't get a new thirty day period every single time so for mr sims once he was employed by c s e for thirty days make this section fourteen b s application turn on this tree verse post employment distinction yes mobile oil addressed only the jurisdictional question of where does a right to work law apply so in that case the as opposed to where the individuals hired because that's the most important thing but in that case the court wasn't deciding if a feel required as a condition of obtaining employment was lawful or not simply considering where the jurisdictional basis for the law discrimination that encourages union membership then the first proviso to eighty three provides a limited distance where there is an agreement an actual agreement between the employer and the union requiring union membership on or after the thirtieth of employment or after the effective date if they have agreement the fourteen b o i was states to open those agreements that are allowed as a defense to the non discriminate you have to discrimination from the very beginning hiring halls and union securities agreements have been distinguished first of all they can distinguish for their purpose as the supreme court is going it out over and over again quoting senator taft hiring hall so are in the nature of an employment you do it through a union security cause that's why can't congress authorize that so that it's it's just completely untrue that this issue hasn't been exhausted it was exhausted in the first fifteen years under the taft partly act and it's been se so under a human security or the calculation is what are normal duties what about his argument that back expanded this definition of membership to include just the financial component in that that those cases from the sixty's don't aren't on consist of it did no such thing in fact that korean forces the distinction between because back recognizes that union security agreements are for the purpose of funding the union as an institution to carry out the collective bargaining function back over what you see due to a fair representation on the basic charges i mean as to members of the union is to people who don't object people are required to pay for do you use as a condition of it it's an implied duty the union has to that particular subset of the bargain but it doesn't change the basic definitions or or what would constitute a union security agreement here the employer has nothing to do with the with the defense it's not it's not been a negative like an invitation to bring the states in and police this it's a defense that the union in the employer claim to justify discrimination and they have to establish a n agreement and they have to meet certain preconditions this is nothing like that the the callahan decision is course of a district court opinion and it's in a far away jurisdiction nonetheless let me just ask you is the reasoning of callahan flawed in your view in the minute you did mention in your brief so i don't know what my memory of tell my hand is that it's sort of in the middle of that he's saying i don't see it as as is barring the fees but maybe it bars the condition to get in does anything to call that into question and this court has precedent this court as early on was among the first courts to address the issue this court held that hiring hall agreements are not within fourteen biso on this to nondiscriminatory hiring all agreements are not with the fourteen b because they did not require union membership in the sense that the proviso in court to be contemplating difference does it make if any in your view that the fee here is a percentage of wages i don't think that it makes any difference if yes mr simms to challenge the amount of the c as he could have he could have brought a claim like that then he could have argued that is steve does one of the question about the practicalities of this is my go to the whole distinction where this is pretty or post hiring how does it work each day even for someone like mr sims who's been a long time employee what happens to them each morning are they actually given an assignment each day and that's how the seniority started or just how does it get assignments each day i mean the way in the maritime industry is the reason these things are a benefit to the employer is that ships come in and they need to put together clues so the union has access to people who know how to do those jobs and the employer can say to the union we need x number of on sharman x number of clerks assemble them in the union will assemble them and then the jobs will be parceled out the employers benefit is it gives the union to put the crews i mean make people available at their workers benefit is that someone that is their representative is doing the person so they don't have to worry about favoritism and that sort of thing so that's why it's a benefit to both sides and this is now with very small operation at the local but it didn't used to be that there used to be wait eight or nine stevedoring companies coming through this thank your honor the union's position there is a distinction between these would be collected under a union security provision which are so institutional union expenses first special fees for other purposes fails because it's contrary to the board's decision in kingston construction and i believe that case is actually worth discussing because of its importance here in kingston constructors the union charge employs a special fee of three point five percent the one to a union market recovery program and what that program did was subsidized unionized employers they could when bidding contracts and the employees in that case argued you can't compel us to pay that fee because it's outside of the purpose of this doesn't go to union expenses it goes to the special program the employees under the provision and that includes the special fee to the extent it wasn't used for purposes there were a number called a public policy which in some instances it was because of a conflict with prevailing wage laws but the thrust of constructors was that the distinction claim by the union and also the supreme court's decision and back again back construe section eighty three to allow generally can charge the fees mentioned before the uniformly imposed ones but if an employee objects under back an employment agency that also benefits the employer it can be analogized to an employment agency and arguably it could benefit the employer in some circumstances but in terms of the statutory analysis it doesn't change so for example many compulsory union services are can be considered fees or charge one of the per visit according to back to get banned under fourteen be a good example of this is one in the brief is grievance adjustment most unions  negotiate clauses say if you want to adjust a grievance your employer you have to go through the union you can't do it independently that's illegal however states can ban fees for agreements adjustments so in a right to work states it's mississippi they couldn't force employee to use the union's grievance field machine or a grievance machinery to process their grievance a hiring hall is conceptually no different is just a mandatory union service required by a collective bargain agreement and under mississippi law no d or other charges can be charged employees and as long as that fee constitutes the word membership within the meaning of fourteen be that application of mississippi's right to work law is not preempted and again membership under fourteen  includes any dues or uniformly imposed periodic anonyma called a public policy and there's been no argument that the union's feed doesn't satisfy that requirement and then just finally i want to know the two cases cited by the union council houston chapter regarding only whether a union hiring off could be prohibited by a right to work law not a union hiring coffee and in fact the reason this court held the hiring hall wasn't within the meaning of fourteen