OA465: The Fight to Unionize at Amazon

Automatic TRANSCRIPT

They wanted a chance to make law but here it is a good one. Is this your guide. We have your name on the registration. No you don't don't be ridiculous networks. Don't get to decide election. Do janas sleep big city law like my opponent here. What just happened kind of confessed. Sorry i find you. Bring out the wheel of punishment. Welcome to opening arguments. A- podcast that pairs a comedian with a real life lawyer. This podcast is sponsored by the law offices of the andrew torres. llc for entertainment purposes is not intended as legal advice and does not form an attorney client relationship. Don't take legal advice from a podcast. Hello and welcome opening arguments. This is episode four hundred and sixty five. And i'm thomas and that's andrew. How you doing sir. I am fantastic. Thomas how're you still not a cat and we are not talking about. He shall not be named. I'm excited for what is sure to be a classic. Oa deep dive The way the show should have been in the alternate universe where hillary was president or something. So i can't wait. Let's see. I don't even think we have any announcements or anything. No i can't. I can't wait. Let's get to it all right here. We go down down down down andrew. How do we unionize amazon. Well we are getting a masterclass in that right now From a union called the retail wholesale and department store union And this is super fascinating right. So strep in. You're gonna learn about the national labor relations act I learned so much researching the story and those are always the most fun For me to bring it to you. Because i kept to share the stuff that i didn't know so i knew that amazon was one of the largest employers in the united states. They are the second largest employer employee. Eight hundred thousand people of whom almost all are classified as essential workers that is they have been working throughout this pandemic. It's this last week. I didn't know this at all like amazon. Has the fomin centers across europe. Virtually all of their employees. not in. the united. States are unionized Well then i bet it's four thousand dollars to deliver you. You know. I gonna tell me it actually works out okay amazon except for such a fine Amazon has had as far as i can tell one. Vote as to whether any element of its workforce is and. I'm gonna explain the minutia on that in a minute. It was in two thousand fourteen at lost It was a group of mechanics and technicians. Who worked in a delaware facility for for amazon. So thomas. i don't expect you to get the margin. I just wanted looking for you. Know sort of the total vote. Total here How many people do you think voted. Amazon employees voted in that twenty. Fourteen election are you. I looking for a percentage or my looking for a number number number. Total out of out of eight hundred thousand people potentially Three thousand four hundred twelve. Yeah so the vote was twenty one to six jesus and worse i. I thought i knew you were going to be like. It's either gonna be really big a really sangam exams. It was so the the way that it works under the national labor relations act. Is that if you are a union. And you have an identifiable sub population of of an employer's workforce and that is called a bargaining unit. And you say. I think these guys all have the same interests in common and you get thirty percent of them to sign a letter. Then you can petition. The national labor relations board to hold an election of the entire bargaining unit and if they vote greater than fifty percent Then you get to go in and be the union that represents them so an issue that is frequently debated in. Nlrb cases is what's relevant bargaining unit. Right and you can imagine that like for purposes of certain unions. You might wanna treat different amazon subpopulations differently right like the drivers may have different interests than the stockers and they very different interests. Yeah then than the you know then management right so so put a pin in that. The only vote that amazon has ever had in. Its entire history. In the united states whether to unionize that was authorized by the nfl rb and overseeing brightness in accordance with the the the the national labor relations act was for the international association of machinists and aerospace workers and it was whether to have this tiny group of mechanics and technicians that worked at their delaware facility. authorize the i. a. m. a. w. to represent them and they voted that down twenty one to six seven years ago january fifteenth. Two thousand fourteen little over seven years ago if you ask amazon well kinda seems like twenty seven votes out of eight hundred thousand Seems low did insignificant sample size like honestly and their argument is. We're good to our workers right we in twenty eighteen We passed a fifteen dollar an hour minimum wage across the company. So you don't need to unionize right and that is the position that they have taken very publicly in opposition to that You might point out a number of different things. The first thing you would probably point out are conditions on the job so put a pin in that. We'll we'll we'll come back to that one but you also might unionize. That individuals aren't forced to sign take-it-or-leave-it contracts that have is a blatantly unenforceable non compete agreement. That is eighteen months after you quit or are fired by amazon. You can't work in any competitive business anywhere in the world. Don't take legal advice from podcast but That's there's no way that's enforceable non-competing agreements are meant to prevent you from taking legitimate techniques that you have learned at your prior employer and you know using them on behalf of your next employer for stacking shelves That you know is yet another company. They put the shells on top of the things but in amazon they put the things on the show. You can't take that important trade secret. Yeah that's right. And in addition to the non competes was one of the reasons. I had to dig a lot to figure out where those contracts aren't my sources. The verge which is not you know not a top line source for me usually is because in that same contract are non disclosure agreements writing so one of the counter arguments of why you might wanna union is. Hey you have an employer that is trying to curtail knowledge about its employment conditions. And we'll talk about the conditions but but as a result of that in september of twenty twenty reports surfaced as the reason they surfaces because somebody was Scanning you know jobsites right and Online not facilities but like online web portals for new jobs and amazon tried to hire an intelligence analyst to and that job posting went viral amazon was asked about it and they said oh we. We posted that in error but the idea was to have somebody who would oversee their efforts to figure out if employees were unionized or not so that job went unfilled but what did not was. I will link it in the show notes. That amazon is using both from its corporate headquarters and installed on its employees desktops sophisticated software. That's spies on what it's employees are doing off the job writing in closed. Facebook groups and other online organizing and that software delivers a report back to corporate identifying a among other things drivers who quote were planning to strike or to protest against and of quote or participated in facebook groups that had certain code words within the facebook groups that were linked to potential labor organization. Right and those code words were things like fair wage rain which by the way we talk about fair wage in our facebook community. All the time. Right so if if you work for amazon And you remember the opening arguments. Facebook community You may have gotten a report about u Shit yeah sent back to amazon corporate and The guardian september twenty seven th of last year published an expose amazon owns a among many many other things. They own the whole foods chain of grocery stores And a secret. Training video leaked out from amazon corporate post merger explaining to whole foods. How to prevent their workforce from unionizing. They're very fine people on both sides so We we wanted to present the full. You know maybe. No one ever unionized as at amazon because the pay is fantastic in the working conditions are maybe because the company has made it a top priority in the united states to Persuade its employees not to unionize. We're gonna talk a little bit more about that but but pin and all that stuff for the time being now i wanna tell you about the specific outfit. That's going on right now on march. Twenty ninth of twenty twenty so right as the pandemic was taking hold. Pandemic has been super good for amazon's business right as as we all know right. Yeah so they opened a brand new facility. It it's called the b. h. m. one facility in town called bessemer alabama and it has six thousand plus employees the conditions in this fulfillment center are. I'm going to quote from the american prospect. But i have multiple sources on this. Let's start off with sara murray thrasher who says quote they work you to death. She worked as a store. An employee who stocks items in warehouses before. They're ordered by customers right so she Offloads from trucks stores them in the warehouse before they have to go out on a as purchase. She worked there for two months seven weeks october. November twenty twenty before being fired by email with no prior warning. Mr asher says it's crowded. Sometimes you can't even find a station. We would get reprimanded if our stowing time was above twenty seconds or higher with rates needed to be done in eight seconds per item. Thrasher explained that bathroom breaks were available but taking one would negatively impact your stowing rate and if there were no stowing stations available. She would be placed in different departments without any training. So she's they're putting packages away. You're allowed to go to the bathroom yet at the end of the day. Then the figure out. Yeah then will they be. we've seen reports. That are that that it was prohibited and this is a way of effectively prohibiting. It if if they take total number of packages divided by total amount of time. You're on the job and going to the bathroom counts. As being on the job you can see how that would be bad. I'll give you another former stower. Byrom talisman worked there from august. Talk tober of twenty twenty said starting wage of fifteen dollars. An hour was enticing. But the work environment was awful quote. It was almost set up like sweatshop turnover rate is extremely high where we would have at least fifty new people coming through every two weeks. Okay so that's the reports from inside the facility and what happened what happened. Is that the retail wholesale and department store union decided to target a subset. The stores part of that a subset of the people who worked at this beach in one facility. And what you have to do. As as i said before under under twenty nine. Usc section one fifty nine e is you've got to get thirty percent of the relevant workforce of the bargaining unit to sign your petition. And once you get over thirty percent you can then under the law deliver it to the national labor relations board and what they do is they immediately sent notice to the employer they say. Hey we've got a petition. Here's what it is and we're going to hear from both of you and then we're going to decide if this is something where We are required by the law by the national labor relations. Act to hold a vote and if we're required to hold a vote then that will be by secret ballot and it will be administered by the nlrb so as to be fair. I'm going to link this is The nlrb's own reports that go back from twenty ten to twenty thousand nine hundred and although union activity is way down in twenty nineteen. Which maybe you could infer is trump thing otherwise The the activity is relatively constant and the ratios are relatively similar. Okay and it looks something like this. You would have petitions like this filed about two thousand per year of those two thousand a tiny hand focus dismissed on motions to dismiss. How do they get dismissed on a motion to dismiss if you don't have enough signatures right if there's some kind of technical defect and when i say a tiny fraction i mean you know in two thousand eighteen seventeen of them. The the most in the past decade was twenty eleven when forty three were dismissed right so a tiny tiny fraction one to two percent every year. Get dismissed of rather large. Fraction are withdrawn about a quarter. A third to a quarter of these petitions are withdrawn every year. And i wanted to figure out kind of how that happened. And what got me down. The rabbit trail to the amazon case so now. Let's go back on november twentieth of twenty twenty after spending some time so facility the The one facility opens up march. Twenty ninth of of twenty twenty. You could imagine how difficult it is to get those workers to like. Come over and sign your petition rain during cove it but the retail wholesale and department store union assembled a they defined the stores up the people they wanted to represent a. They wanted to exclude truck. Drivers seasonal employees temporary employees supervisors managers right so they define their relevant bargaining unit at a one thousand five hundred people so under the law. They need thirty percent. They need four hundred fifty signatories and they got that by november twentieth. And so the anna larbi sends out a letter and says hey we've received a petition Peers valid on. Its face has the requisite number of signatures amazon. What's your response and then amazon did something that employers typically do this is a weird sort of double or nothing but it makes sense to me. They said oh the fifteen hundred people. That's not a sensible bargaining unit. It should be all of our employees. They just trying to make like it's impractical to get all of employees. Or how does this gambit the reason that you would do that is think about once the union has defined its own bargaining unit. They have to get thirty percent to file the petition right. Yeah so y- fifteen hundred people. You've already signed four hundred and fifty people to win the election. You're leaning to get to seven hundred and fifty right so you only need to persuade three hundred more people. If amazon can expand out the number of people who are eligible to vote. Then you need to persuade three thousand people instead of three hundred and it turns out that this is in fact a fairly common tactic that employers use they say hey relevant pool should be much larger and all of these other people should be eligible to vote and then they are allowed to have in person meetings at the company. That says okay. You're going to hear from a union. But here's all the reasons why you shouldn't join a union so they can then start lobbying their own people not to join the union. The rw dsu. The union called their bluff. And they said okay. Sure you wanna you wanna put the entire population right. The entire workforce of six thousand people at this facility up for a vote will take that vote absolutely so then the argue and i think amazon was kind of surprised by that so then the argument shifted to well. What kind of a vote should we have. Tell me if this strikes you is familiar at all. The union wanted to have vote by mail their their view us. Oh you gotta goddamn pandemic. oh and on. Voting by mail is a long recognized procedure at the larvae And add. Let's do that. Let's just set something up online or something. So here's the thing it again. These are overseen by the nfl. Be right so as you might imagine Because you know well it's not hard to imagine one that would be grotesquely. Unfair right like a a thing where you get a You can either put your ballot in the yes box of the no boss. The no box and your boss sets up at the front of the room. Yeah right so engler be has to oversee at. I don't know if they have done it online. They're not doing it online. In this case. I would be a little bit worried about hacking but yeah it's worth kind of put a pin in that and looking for ways to modernize it amazon thought differently amazon. Said don't know look there. There's all the rates are the response rates are low where they're more errors and there's more you know fraudulent ballots. Let's have let's have it in. Let's have an in person russia's probably trying to tamper with our union. Vote over here you exciting every week. We're doing an extra opening arguments. You know how we're going to be on the stereo app wednesdays at five. Pm pacific eight pm eastern. We're going to be on the stereo up answering your questions. And you're going to be a part of the show. I am so excited for it. Yeah this is going to be a lot of fun. The stereo app is really cool. What you do. Is you download the app. You sign up look for me. I am at his t. o. Are easy. Thomas is at serious pod and you'll get the little notifications of when we're about to go live and you can talk to us. Live and ask us questions. So you know. We're looking for ways to increase that interactivity with you. This is not replace our monthly. Qna's we're gonna continue to do that but this is just us being able to get out bringing more of the show bring you that content and have you interact with us life but this is exclusive to the stair apso you gotta get on that. Go find that at your app store. Where whatever app store you use. I'm so excited to hear from you. You guys get to be a part of the show. Ask us whatever there are so many issues. There's even more stuff to cover now that it's weird way you know. People were worried what we talked about after trumpet without that clown horn clogging up the twitter verse. There's even more cool stuff to talk about absolutely so. Make sure you join us over on stereo. That is every wednesday eight pm eastern five. Pm pacific on the stereo app. Look for me. I'm at tour as thomas at serious pod or just start searching for opening arguments you will come across it and we'd love to see there. I'm going to read you. What amazon proposed uphill in the snow. Both the employer proposes the parking lot adjacent to the facility as the voting location. The employer starts that can erect a tent equipped with heating and lighting to cover thirty six hundred square feet. The size of the tent may be adjusted as needed or desired and the sides may be raised or lowered to control the flow. Fresh air voting take place between six. Am at eleven am and between one pm and six pm for up to four days. In addition to providing requested health certification in personal protective equipment the employers willing to make free cova testing available to election participants to conduct temperature screening using thermos scan technology to make its digital distance assistant or human social distancing team available to monitor the line leading to the voting tent to provide pass through boxes or vending machines to ensure the distribution. His contactless provide restroom trailers. That the board agents need not enter the employers facility arranged for food delivery services that would be at a separate tents so that the voting area board agents need that seek meals elsewhere arranged for board agent transportation to this location using drivers who has received negative covid tests. Arrange for private independently sanitized floor wing of local hotel for board agents staying in the area overnight and or arrange for agents who wish to stay on site in recreational vehicles during the course of the election so that sounds like a huge pain. That sounds like an amazing pain to not. Just mail out the ballots. Which is what the union suggested. Well who gets to decide. I mean if the union says one thing in the company survived. I don't even know why the company has a say in how the people might get to vote about how to unionize. Is that just because of the capitalistic nightmare. Hellscape we live in or it has to do with a prior decision of the nlrb. Called aspira keen. All which Was a november twenty twenty decision about how to hold elections during the pandemic and it basically says that it's up to the nfl rb to pick to make a decision as to how to implement the requirements of voting in a way that's consistent with protecting employees so it isn't that the employer gets to say it's that they make doing proposals and they argue. You know to the anna. Be which one you should choose by the way. This is why it's important who sits on the nlrb eight imagine that Different different folks may May view this differently based on your Based on the overwhelming similarities that this has to the position taken by the two major parties and in fact the nlrb held in another decision decision called daylight transport from august of twenty twenty that concerns about potential disenfranchisement of voters could be relevant to whether a mail ballot election is appropriate so in other words the kinds of arguments that are being raised against voting by mail have been looked on. In some cases favorably. A by the larvae. And so here. This is not great that their primary objection to the mail ballot election being raised by By amazon was that it would not be able to quote hold certain employees meetings at any time within twenty four hours of when the ballots are mailed until the ballots are counted. The employer argues that this unfairly gives the petitioner the union a greater opportunity to communicate with employees. Where the employer has ceased holding large in person meetings the The analog and reviewing that rather dryly says i note that the employer has ceased holding large in person meetings for the same reason that a manual election is inappropriate namely a pandemic further note that many methods of digital communication are available in equal measure to the employees the petitioner and the employer so i gave away kind of the the conclusion there while reading but the are be rejected those arguments and they said no. You're going to have a vote by mail elections. Oh good and that vote by mail. Election began last monday. February eight rule. And if you're thinking like how does an independent body that is trying to make sure that voters aren't disenfranchised to hold the free fairest elections possible. Your ballot up must be received an envelope that assigned. Okay if not it's void and you get a notice that says your. Your ballot was thrown out but the ballots must be returned to the national labor relations board region. Ten office by the close of business on monday march twenty ninth twenty twenty one so seven weeks of voting is what an independent nonpartisan body trying to to to count. The ballots of six thousand people. Decided was was appropriate to sort of balance out those concerns and it has begun. And we're gonna we're gonna track because this would be the very first inroads of any union in any amazon facility whatsoever So really really. Exciting amazon Is allowed to communicate with its employees During the election right. There's not there is not the equivalent of the no electioneering rules right. Like when you're in a line yeah. Amazon is communicating. Bees begin to electioneering rules. I think that's right. So here's who's eligible to vote all employees at the facility who've worked an average of four hours or more per week during the thirteen weeks immediately preceding the eligibility date for the election. right that is february So part time employees. As well as fulltime employees they vote whether they wished to be represented for purposes of collective bargaining by the retail wholesale and department store union. If that fails right they can try and organiz again with with different unit. But it would. Obviously you see the expense. The unions had to go to a ticket to this point it would be a significant deterrent if they wind up losing. And you'd have to go back to the beginning and get all the signatures and everything else. In the meantime amazon has engaged in a bunch of different ways in which it wants to communicate with. Its workers about the dangers of of joining a union so flyers posted in the bathrooms. Okay that's that seems fine right like you get to put up a little letter that says. Hey employees aren't using them anyway. So right posting seven the bathroom. You don't allow your employees to go to the bathroom so fine both away. Yeah how about mandatory meetings sometimes as often as five times a day to argue about why Unions would be worse off while you do worse off of the They've launched a website called to do it without dues a quote from that website. Corey anti union propaganda is the best. Here we go. Yeah why pay. Almost five hundred dollars in dues. We've got you covered with high wages healthcare vision and dental benefits as well as a safety committee at an appeals process. Mind you the the. The benefits only apply to the fulltime employees. They say he's high wages in healthcare. Whatever those where is that. I get that if i'm but again. The same perverse incentive that underlies. You know the affordable. Care act right. Is that young workers making and here fifteen dollars an hour which was should be minimum wage people making minimum wage people at the margin over value. The take home pay Because so much of it has to go to fixed expenses like food and shelter so saying your paycheck is going to go down five hundred dollars to somebody making fifteen dollars. An hour is a really strong argument a little bit of some reports. Here this is. This is from the bangkok post so different source area. But a bunch of these quote Joseph jones part time worker at the bessemer warehouse said their new weekly meetings to go over. How you're feeling and how you're mentally handling the pandemic but we have mandatory weekly meetings to go over how bad a union would be. It's almost like an abusive relationship. Where the abuser. keep saying. I'm sorry don't go to police. I will be better. We don't have to go to a third party. So that's that's some of the reporting on the ground bernie. Sanders went down and said quote. It cannot be overstated how powerful it will be amazon workers in alabama vote to form a union. The good news. I talked about the statistics before. From this is from the larvae. Once you get to election unions win about two thirds of the time right cool. Yeah i mean like i said. It's about fifty fifty from the filing of the petition. But that's because of the petitions that get dismissed or withdrawn. Because you know the be will say okay. Well yeah. The relevant bargaining unit. Is this huge group and And the labor unions like. Yeah we're not going to go through that or there's some other technical error but but no when when you look at Over the last ten years Unions wind about twice as often as they lose when you go to a full election. So this is really really interesting. It's really kind of on the forefront and it it helps i think flesh out that larger question of we have a public facing fight for increasing the minimum wage for having a living wage in this country But this goes to show that like living wage is not wear the questions end so yep so that's up Will amazon employees become members of the retail wholesale and department store union We will know in early april so there you go okay just to clarify though andrew. This is just one specific amazon location. Or whatever like shipping something. It's not they all across the united states. Yeah that is absolutely right really really good question. This is about that particular bessemer facility. The be hmo one everybody so we do not have closed shop unions in this country anymore. That means everybody gets an upper down. Vote on will. I be represented by this union. And so those six thousand people if they vote yes then they will be represented in collective bargaining By the union But the other seven hundred ninety four thousand dollars going to say but is it a roadmap for them they kinda it's absolutely a roadmap right says. Yeah we were able to break through this stranglehold and then you know you would think enthusiasts of the free market put lucky would say like well our employers. Do our employees doing better off in bessemer ala bama being represented by a collective bargaining unit. Or are they doing better off. Just you know one at a time take it or leave it elsewhere in the country and so in what are the one of the salutary effects. Is that in trying to make the case right so amazon is going to continue to have these meetings and you know the propaganda and everything else but but one of the things. That's really beautiful about that is supposed. This union goes through in alabama. And then there's an effort to unionize at another amazon large fulfilment center. Vel roll out the same propaganda and they will need to show that conditions at x facility are superior to conditions at the bessemer facility which often provides powerful incentives for internal change that go beyond where their incentives are right. Now which is amazon changes things when they get enough bad. Press about like you know how people are wearing diapers to work in the and and that sort of thing so i don't want to oversell. What six thousand people and. I'm really glad you asked the question. That way. but is a foot in the door it is a roadmap for future and And it would it would signal unions like. Hey you can get inside of amazon and And that's a big thing all right. Well that's exciting stuff and let's see. I think you've left enough time for a mini wild card round. So let's we've got some power sharing agreement so because i want to talk about committee assignments I want to tell you that the power sharing arrangement that was entered Remember last time we talked about this. The text was embargo in advance of the the senate consideration on impeachment. That's now out. It is senate resolution twenty-seven and it is almost word for word identical to senate resolution eight from two thousand and one and remember that was an agreement that favored quote unquote. The republicans right. That was george. W bush and vice president dick cheney breaking the ties and so again if you were skeptical. The democrats got the exact same terms in the exact same words that the republicans got For trent lott in twenty in two thousand and one I'm very very pleased with this. I continue to think i've said this before. The the two thousand and one power sharing arrangement was only in effect for about six months. Because jim jeffords. Republican of vermont made him declared himself an independent and caucus with the democrats stop caucusing with the republicans began caucusing with the democrats Lisa murkowski has said she will not become a democrat but That does not have not holding my breath on that one but but that does not prevent her from becoming an independent and caucusing with the democrats she goes straight to bernie sanders is just her and bernie and technically independent is. Just the i feel like the guy from maine maybe angus angus gle. Good old maynard navy like if you're gonna join independence joined those to go. Yeah might as well go all the way to socialist. I'm with you so it. In addition to senate res- twenty-seven that created the rules. Senate res- twenty-eight staffed out those committees and we have seen some of these reports. But i want to tell you. There are progressives everywhere in the power structure of the senate and the reason. We haven't seen that so far as again. The senate's kinda busy with the impeachment thing right now but listen to these folks. It's shared brown chairing the the banking housing and urban affairs committee. Maria cantwell on commerce science and transportation. Tom carper on the environment. Ron wyden on finance. Gary peters who is the junior senator from michigan. I didn't know a whole lot about him. So i looked him up on progressive voters guide and they love this guy right. He's the chair of the homeland security committee. And if you're sitting there thinking like okay. well whatever kirstin cinema is on that committee right. A moderate conservative democrat from arizona. She's way down the list right like so. If you're sitting there thinking like did joe biden. Neo kind of play pixies like if you wanted to. You could have put cinema as chair of homeland security early michigan. Not not a lot of border crossings into michigan. I read that as a as a pretty significant signal and of course you know bernie sanders as chairman of the committee on the budget. Here are the negatives here the things you can be kind of mad. If you want amy klobuchar and again we've been back and forth. Her voting record. I think is more progressive than her campaign. Interestingly but yeah amy klobuchar chairs the committee on rules and administration now great. There goes the country. There goes the country. Mark warner pretty conservative. You know moderate centrist democrat Chairs the intelligence committee. But honestly before i mean even before you get into all this. There aren't even that many progressive senators to go around. You know so. It's not like oh a true progressive president would put aoc on the quality. There's only so many bernie's in the senate you know. I mean how many how much better could you do. 'cause you need a bunch of different senators charing different things right. Some of them have interests that overlap. And you know so. Let me give you really really good example of that. I told you ron wyden. And again ron wyden one of the ten most progressive senators dino democratic senators in chairs the finance committee. Well elizabeth warren kinda would like to also be on the finance committee. You could say well. Maybe we'll move her over to the budget committee but bernie sanders is chairing the budget committee. Right so it is. You could take it. I i think if you asked elizabeth warren would you rather be on the finance committee and have the opportunity to shelter through the two percent wealth tax right or would you rather be chairing the Let's say the committee on energy and natural resources. Then she's probably gonna take the former and and that would leave again. You wanna pick the worst one. There are only two that. I think you could really make an issue about well. And we're talking democrats. The worst democrat is pearson cinema in my opinion yum. So if what she got anything yet. She is in the middle on homeland security. All right fine. She is on Way down the list on banking housing and urban affairs and she's way down the list on commerce science and transportation so so what did Mentioned get first troubles. Joe mansion is chairing the committee on energy and natural resources can yeah i agree but that it sounds like we are trying to set up future success by giving joe manchin what he might want the up. And that's how it goes when you don't get enough democratic senators in the senate. We got home carper chairs environment committee right. It's not like mansion chairs the environment committee and that is like i love coal mine right like okay you can be angry about that one honestly can you. What else are we supposed to do. I mean on one hand who who is going to criticize. Democrats for trying to flatter. Joe mentioned a little bit. That's our only chance of getting anything. Past what what is the. What is there some other side. That's like no. You need to punish mansion or something. I don't i don't get what the alternative is. I agree with that. And i would add the other folks on. That committee are all folks who were sharing other committees right so so the committee on energy and natural resources. Joe manchin is the chair but the additional members are ron wyden. Maria cantwell bernie sanders. Kirk hinrich maisy hirono angus king Cortez masto kelly and And hickenlooper So you know you also have some some moderates on there but there's not a great choice like you can't share multiple committees turkey. is slightly to the left of of joe manchin but but that would be a huge slap in joe mansions face right i. It's clear to be. He went to Chuck schumer and said. I'd like to chair the committee on energy and natural resources and they worked it out. Get whatever you want. Buster west virginia gets wants right now. Have i mentioned how good looking you are. Mr mentioned you want one other negga tron. The i would be. I'm a little bit negative ronnie on. I have a man crush on john sheldon whitehouse. And the judiciary is in order. Dick durbin who's two hundred pat lay used to hundred dianne feinstein who's three hundred And then sheldon whitehouse. And then cloche arcunes blumenthal hirono booker padilla and And jon ossoff got cut assigned to them to the committee So you know like the judiciary is a really really important committee and in an ideal world right. I would rearrange that a little bit. But you know i mean you could hear it right. I'm nitpick this is with the hand we were dealt. We are seeing. You know if you're trying to figure out in an objective way and look. I didn't get to do it on the show. Go listen to clean up on all forty five episode number three like i rant about the the guy that joe biden stuck on his commission on reforming the judiciary. I'm not afraid to call it out until you when i think joe biden mis-selling progressives down the river if you were concerned about biden and schumer selling progressives down the river in terms of how they were allocating the senate. This should make you feel good. This allocation is about as progressive as you could possibly do and And i'm very excited about it. Yeah that's that's why. I'm saying within the mathematically this is like trying to arrange the tables at your wedding or something you know. There's there's only so many combinations you can even do according to all these rules and it's not like why isn't bernie sanders at every table in every single position while there's one of them so much you can do and you can only serve onto frontline committees in three total. So yeah so it it it. I'd be open to hearing criticisms as long as people are like actually taking into account what could have been done but You know if you're just whining about it. Without the at all taking into account the structure that has to be met then nights not very valuable but anyway. So that's cool. All right do we. Do we do it do we. We've done this. is it all in. Wow nice work. We've unionized amazon. And we've talked about the parents sh- so much compliment waiting in the mentioned. What's that former gone. It's like there's room to educate. It's just that i love it. Yeah that's a great description. Opening arguments is brought to you by ziprecruiter. Finding great candidates to hire can be like trying to find a needle in a haystack. Sure you can post your job to some job board but then all you can do is hope the right person comes along. Which is why you should try ziprecruiter for free at ziprecruiter dot com slash. Oh a ziprecruiter. Does the work for you. When you post jobs on ziprecruiter it gets sent out to over one hundred. Top job sites with one click then. Ziprecruiter is matching technology. 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I hope you're on the stream. By the way if you're if you're into the zelda game rankings rankings you know twitch dot tv slash. Snes get some zelda. Maybe coming at you today. I don't that is a lot of fun so absent. The talk about a test original zelda second quest is porked that is a that's more pork than this bar exam. Seattle pete brent meddling. I became a patron because his best podcast ever. Jake i apologize for. Never changing my patriot. Name seymore butts exceeding the speed limit is breaking lost law breaking the law s holes. Christopher brown stop stop. Ask a question that the cat lawyer would ask a nice lawful. Copter says thomas andrew from the bottom of my heart. Thank you for everything you guys do. You've encountered a cr. Twenty eight t three b question. Everyone roll for initiative. The wheels of justice turn faster than the speed. I changed my patriot name. there's a goat. Why is there a goat andrew cycles but is in favor of the poop. Lupul the law. 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Have you been there yet. I haven't checked out yet. Andrews my favorite thomas's co host. Aaron is a close second. Well i think we can all agree on that. One full ikea chandler tricycle or manslaughter. Saggy pants kosta matthew vernon butter cups. Legal services doesn't have a joke this week but will for if you bring morgan on more. We all love morgan. We know that and i. I have a morgan specific episode. That is is being cooked up. So you might get your wish jailed walt. Ag has been invading. All my favorite. podcasts. I love it. How do we get her on the next hardcore. History sakashita kasumi. I guess there isn't really much going on this week. So i'd better give you a nice long patriots named read. Adopt a homeless patna postie calling into your docking day jury belly up packages at last baby heather l. jeremiah's fancy microwave emporium in an alley. Dante rosario bosnich david in brooklyn nuts-and-bolts sam to now mitchell no commutes so behind on podcast if the law is on your side quote. Sabrina poetry about sailing. I agree with that one hundred percent. Natasha crunch rap wants you to support the justice policy institute sam buck and are all time. Great he who shall never be overthrown. Conrad michael's oh. No associated firm has ever failed the bar exam. No kidding all right. it's t three b answer time. Let's let's stop but you know sick my finger in the wind and see how the pork is a challenging question. But i don't know that i would say unfair. Let's see how. I did. Probably not well aright thomas. This was about domestic abuse right and it was father lives with the sun. The sun is an alcoholic. Whenever he gets drunk the sun becomes violent and physically abuses. The father one night father. Here's his son out on the front stoop Making what are described as loud obscene remarks. Father certain that the sun is drunk again and that he's going to get beaten than Barricades bolted the front door takes out a gun. the son discovers that that's going on and Beats down the front door. Kicks it down And as he burst through the front door the father shot him four times in the chest killing him. We then learn a as stipulated by the By the question that the sun was not in fact drunk and was not an didn't intend to harm his father or any drug and did not intend to harm father. Yeah that's just know. Yeah we we. Can't i mean that's a that's a. That's a bar exam. kind of sure. Take that issue off the off the table so then the father presents the above facts and asks the judge to instruct the jury on self defense. How should the judge instruct the jury with respect to self defense. So they're really two questions that you need to figure out here. The first is when do judges instruct juries give jury instructions right and then the second is is. Is this an appropriate situation right. So we have give a give. The self defense instruction because expresses the defense's theory of the case. That was your choice a. B. we have give the self defense instruction because the evidence is sufficient to raise the defense and then we have two different deny deny Because the father was not an imminent danger or deny a because the father used excessive force. And you between a and d your deny was was de so first. Let's talk a little bit about what jury instructions are remember that in a trial. The judge is the gatekeeper for the law. Right the jury gets to decide the facts. And so when you have a law that is contingent upon certain facts. A jury instruction tells the jury what they have to find right. They will say okay. If you want to find negligence you must find that. The defendant failed to abide by the standard of care appropriate in x. circumstances and so that lets the jury no okay. We're finding a fact. And how do we then translate that fact into what our verdict needs to be and so here the question is what would would the jury instruction beyond self defense that instruction would be you have the right to use a deadly force against someone if they have their four elements one attack. You an unprovoked way to that that threatens your imminent injury three that you have used an objectively reasonable degree of force in response and number four that you had an objectively reasonable fear of injury or death the c and d. I think. I really got that right. Like i guess you were. Correct that the The the question is you know. Is it an imminent danger. Because he was not in fact drunk guys kicking down your door right that is sufficient to cause an objectively reasonable fear of injuries. That's scoured a see yup when coupled particularly when coupled with the past history of abuse yet this this is somebody who beats that clown audi all the time. It's reasonable to think they're going to do that again. And then was it excessive force. You sort of paused over. This and i agree that like if you're thinking about the deny elements that that the excessive forces probably the the the most one can give any warning he didn't do you know like yeah. You don't have to. There is no inside your house. There is no duty to retreat right. You can use whatever share a house with someone. Yeah well no. That's that that that was the case here but Exactly that's why the question right so both people would have if they were. The victim of the attack would have no duty to retreat. Could mogo quote. Stand your ground in the bar exam when you would look for evidence that the force use of force was unreasonable. You look for something like the father fired. Four times into the chest and then you know the sun turned and ran and the father followed after him and fired three more shots. I it's hard to know. What in america's considered here hear that's how the bar exam would suggest that accessible got ya the longer answer than my guess then the question is just. Does the defense always get to raise. Self-defense eliminating d so is d c m dear both out. Oh damn it's going to be be so between a and b. The question is do you always get to race. That's or do you have to show sufficient evidence. And unfortunately i've thought about that after as again. No maybe that is because it does leave does make sense. It's like well you can't raise it any abstract situation. There has to at least be some level of evidence sufficient. Yeah and think about it. That's right because giving the jury instruction carries with it certain connotations right like we would even in civil cases we. We would argue about this all the time in terms of jury instructions of like. Oh you say you may find that. The plaintiff had contributory negligence. Because x right. Well once you say that then they get to debate over it right. If you don't say that there will be contributory negligence right then. The jury is unlikely to come up with that on their own. Yep i could have gotten this one. Another challenging one i I looked at the back. Like the downside. But i didn't look at the other side of it like the there. Yeah so be okay. I get it all right. So how we tell in non non porked fair fair questions a challenging question. If i mean it feels like. I could possibly get most of these if i go do. Just the right amount of reasoning. Just the right. You know it kind of depends on. How if all of them are this hard. This feels like a challenging question to me. Honestly like not knowing the law but You know. I don't seems like i could have gotten there. We'll see i. There's no way you can know whether or not a test is parked by laying at one question. The last last has was parked because all ten questions were impossible. There were all the hardest kind of there. Were no freebies and so i went. I feel like i went with the freebie answer again here because in the past. That's done me okay like you know. Oh well you get to raise it because it's your theory of the case now reasoning and. That hasn't gotten me an answer a very long time. So maybe i need to stop doing that. But again we're changing tests so it's hard to know but anyway all right i didn't get it. Let's find out who this week's big winner is though all right thomas. Well a bit of a timeline. Possibly bitter sweet tea three b. e. winner but the first one i saw get it right on twitter was nick jordan. That is act in jordan. Seventy nine who writes answer be there has to be some evidence to support self defense claims answer a would mean the judge always gives the instruction even if you beat a cop to death with an american flag while storming the capitol. Yeah so. Congratulations on being first-past-the-post nick. Everyone give nickel follow. That is at n. j. o. r. d. seven nine on twitter. And congratulations. nick. I think on being this week's winner. What an episode nice job. That's our show can't wait for another rapid response friday and If you need more away in your veins before then make sure to grab that stereo app. Listen to us every wednesday five. Pm pacific eight pm eastern. That includes this wednesday. Every wednesday includes every wednesday. So we'll see you. Then until i move for a bad court thing. You mean a mistrial. Yeah that's why you're the judge. And i'm the law talking. This has been opening arguments with andrew. Thomas if you love the show and want to support future episodes please visit our patriots. Neutron dot com slash law. If you can't support us financially it'll be a big help. If you leave us a five seventy tunes stitcher or whatever podcast delivery vehicle you use and be sure to tell all your friends about us for questions suggestions and complaints. 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