[00:00:00] Speaker 01: Case number 141167, Hospital of Barstow, Inc. [00:00:06] Speaker 01: Doing business as Barstow Community Hospital Petitioner of the National Labor Relations Board. [00:00:13] Speaker 01: Ms. [00:00:13] Speaker 01: Cassetta for the petitioner, Ms. [00:00:15] Speaker 01: Sheehy for the respondent. [00:00:25] Speaker 03: Good morning, Your Honors. [00:00:25] Speaker 03: May it please the Court, Caitlin Cassetta, appearing on behalf of Barstow Hospital, Incorporated, doing business as Barstow Community Hospital. [00:00:32] Speaker 03: There are three reasons why this Court should vacate the Board's order in the underlying case here. [00:00:39] Speaker 03: And the first, and the one I want to focus on the most during oral argument today, is that the certification of representative that was issued by the regional director in this case [00:00:50] Speaker 03: is not a valid certification under the precedence that the Board brought to this Court's attention on Friday of last week, specifically SS Mystic and UC Health. [00:00:59] Speaker 03: And the reason why that's true is that this case was conducted pursuant to a consent election agreement, which rests with the regional director final plenary authority to issue a ruling in the certification in other R case matters. [00:01:15] Speaker 03: And that distinguishes the case [00:01:17] Speaker 03: from SS Mystic and UC Health and puts it squarely in line with Laurel Bay. [00:01:21] Speaker 03: So for that reason, primarily, this case, the order should be vacated. [00:01:26] Speaker 03: But beyond that, there are also issues with the board's findings. [00:01:30] Speaker 03: The board erred when it found that there was no labor relations agreement that existed here and that the party's desire to defer to arbitration was not honored. [00:01:40] Speaker 03: And the board also erred when it made its findings of bad faith, specifically that the hospitals, [00:01:47] Speaker 03: asking the union to submit all of its proposals before the hospital would respond was bad faith bargaining and also that the declaration of impasse over the use of assignment despite objection forms was bad faith bargaining. [00:02:01] Speaker 03: So I'd like to take you first to the question of the certification because obviously that would be the controlling issue here. [00:02:08] Speaker 03: As you all probably know, this court recently issued two decisions, one in UC Health and one in SS Mystic, they're partner cases. [00:02:18] Speaker 03: Those followed from a decision from this court in 2009 in Laurel Bay Healthcare. [00:02:23] Speaker 03: In Laurel Bay, this court found that a delegation of the board's authority made when the board had four members to only two members of the board was unlawful because of the fact that the board is required to have a consistent three-member quorum. [00:02:36] Speaker 03: And this court then further distinguished or maybe narrowed the grounds upon which [00:02:43] Speaker 03: Laurel Bay should be applied on a going forward basis in UC Health Care, and in UC Health Care this court said, what we were concerned about in Laurel Bay Health Care was final plenary authority, delegations of final plenary authority to a delegate panel by the board that remain in effect when the board loses quorum. [00:03:04] Speaker 03: In the case at hand, that is precisely what has happened. [00:03:07] Speaker 03: I'd point you first to the consent election agreement, because that's really where the difference between this case and the two cases in SS Mystic and UC Health arises. [00:03:21] Speaker 03: And that is in the appendix. [00:03:23] Speaker 03: It's on page one. [00:03:26] Speaker 03: It begins on 176, but the language that's important for these purposes is on page 179. [00:03:35] Speaker 03: In paragraph 15 of the consent election agreement signed by the parties, the consent election agreement states, finality of regional director's decision. [00:03:45] Speaker 03: All rulings and determinations made by the regional director will be final, with the same force and effect in that case as if issued by the board. [00:03:54] Speaker 03: And this reading of the consent election agreement is further clarified by the board's regulations [00:04:00] Speaker 03: CFR 101.28 and will certainly raise this in our response to the supplemental authority that was submitted by the board, but that just happened on Friday. [00:04:10] Speaker 03: Yes, so 101.28 describes the board's position on the difference between the consent election agreements and stipulated election agreements. [00:04:24] Speaker 03: And the elections in SS Mystic and UC Health were stipulated election agreements. [00:04:30] Speaker 03: CFR, that regulation says consent election agreements include final regional director determinations of post-election disputes and sometimes also pre-election disputes, whereas a stipulated election agreement allows per the regulation for discretionary board review. [00:04:44] Speaker 03: And that was the difference relied upon by this court to distinguish UC Health Care and SS Mystic from Laurel Bay. [00:04:52] Speaker 03: This case falls squarely under Laurel Bay. [00:04:55] Speaker 03: If we look at the language of the decision in UC Health, [00:04:59] Speaker 03: We have this court saying just months ago, the plain language of the statute, reinforced by principles of agency law, foreclosed the board's effort in Laurel Bay to delegate its plenary final authority when it had no quorum. [00:05:13] Speaker 03: A delegate panel wielding the board's plenary final authority speaks on the board's behalf and in its place. [00:05:20] Speaker 03: Similarly, in UC Health, the court said, [00:05:28] Speaker 03: I want to find the quote that I want here. [00:05:31] Speaker 03: That this court was concerned with those delegations specifically, those delegations to the final authority. [00:05:36] Speaker 03: That's precisely what we have here. [00:05:38] Speaker 03: And under the clear language of UC Health, combined with this court's decision in Laurel Bed, there's no reason why this order can stand. [00:05:47] Speaker 03: There is a problem with the board's authority. [00:05:49] Speaker 03: There is a problem with this delegation. [00:05:51] Speaker 03: and the case has to go back. [00:05:53] Speaker 03: The order has to be vacated and the certification of representative must be vacated. [00:05:57] Speaker 03: The board will argue to you that we have waived our right to make this argument because we did not test certification. [00:06:05] Speaker 03: That puts this case in a slightly different procedural posture than SS Mystic and UC Health, but not one that should matter to this court. [00:06:14] Speaker 03: What we have here is a controlling question about the board's authority to act, in this case with finality, [00:06:21] Speaker 03: through the regional director. [00:06:23] Speaker 03: That has been found to be a subject on which a party does not waive an argument, and that is a subject upon which the court should look at this certification and find that it is invalid based on the clear ruling you made. [00:06:37] Speaker 00: I'm not sure I follow the distinction or drawing between UC Health and SSC on one hand and this case on the other based on this paragraph 15 finale of the regional director. [00:06:46] Speaker 00: So if [00:06:47] Speaker 00: In this case, the agency had done what it did in UC Health and SSC and said that we're reaching the conclusion that notwithstanding Laurel Bay, the regional director did have authority to act, even though the board had lapsed below a quorum at the time that the regional director acted. [00:07:05] Speaker 00: So if they had done that, then why would this case be any different than those two? [00:07:09] Speaker 03: This case is different because the board's rationale [00:07:13] Speaker 03: well the board asked for chevron deference i think in in uc health care and the rationale followed by the court in applying chevron deference was [00:07:22] Speaker 03: The agency is entitled to deference for its interpretation there because the agency did not have the regional directors exercising final plenary authority. [00:07:31] Speaker 03: That made it a reasonable interpretation. [00:07:34] Speaker 03: The court distinguished from UC Health and said that interpret, from Laurel Bay and said an interpretation whereby final plenary authority is being delegated is a delegation that violates the statute. [00:07:48] Speaker 03: And so that's why the board has not made any of those arguments to be clear in this case. [00:07:52] Speaker 03: They've simply said we waived the argument and they've not asked you for Chevron deference. [00:07:56] Speaker 03: They've not told you why there should be any difference in this case. [00:07:59] Speaker 00: But it just seems a little bit odd to rest on and put to one side the notion that the board hasn't said asked for Chevron deference or given the interpretation that it did in EC Health and SSE that would attract the possibility of Chevron deference. [00:08:12] Speaker 00: But it seems a little bit odd to say that there's a talismanic distinction between this case and those cases based on the finality of the regional director's decisions, when the reason why you have the supposed finality of the regional director's decisions is because of something that you agreed to do, which is that the board didn't have anything to do with that. [00:08:32] Speaker 00: You and the union entered into an agreement that said, you know, for our purposes, whatever those may be, they may be our own convenience. [00:08:38] Speaker 00: We decided that the regional director's authority is going to be final. [00:08:41] Speaker 03: We agreed to enter into that kind of agreement on the basis of the constitutional authority or the authority of the regional director to act, which is a subject of contention now that was not at the time. [00:08:54] Speaker 03: If you look at the court's recent decision in UC Health, they encountered the same argument [00:09:00] Speaker 03: I'm and rejected the board says listen these two parties came together. [00:09:04] Speaker 03: They signed a stipulated election agreement. [00:09:06] Speaker 03: They agreed that they would abide by the provisions they're in. [00:09:10] Speaker 03: That's not sufficient to waive [00:09:13] Speaker 03: this argument now, which has to do with the board's very authority to act. [00:09:17] Speaker 00: I take your point about waiver. [00:09:19] Speaker 00: I guess I'm not making a waiver point so much. [00:09:21] Speaker 00: I'm just saying that it seems a little bit odd to draw a distinction between those circumstances and this one that's based on finality, that's based on finality of the regional director's authority, when the reason we have the supposed finality here is because of something that you and the union [00:09:35] Speaker 00: entered into an agreement to effect. [00:09:37] Speaker 00: I'm not necessarily saying there's a waiver. [00:09:40] Speaker 00: I'm just saying that I don't know that there could be a fundamental distinction between this case and those other cases when it's not something in the law that makes the regional director's authority here different from the regional director's authority in those cases. [00:09:54] Speaker 00: It's something that arose by way of contract. [00:09:56] Speaker 03: Well, two responses. [00:09:57] Speaker 03: I think there is something in the law that creates a distinction and that's the decision in UC health. [00:10:02] Speaker 03: There's also a regulation that creates the distinction. [00:10:05] Speaker 03: It's a separate regulation. [00:10:06] Speaker 03: 101.2 AA is not the same as the 1961 delegation of authority. [00:10:12] Speaker 03: that the board relied upon in the other cases. [00:10:15] Speaker 03: So there are distinctions in the law. [00:10:18] Speaker 03: And also just the timeline here is important because you have a consent... We drew the distinction as your first point, right? [00:10:24] Speaker 02: I mean, our prior case drew the distinction. [00:10:26] Speaker 03: Yes. [00:10:27] Speaker 03: Yes, it absolutely did. [00:10:29] Speaker 03: The precedent is very clear that the distinction is upon the grounds of whether the authority is final in plenary. [00:10:35] Speaker 03: I see my time is about to expire. [00:10:37] Speaker 05: Well, you can keep going, because I have an unrelated question. [00:10:39] Speaker 05: Did you want to say something more about that? [00:10:41] Speaker 03: No, I think I've made myself pretty clear on why I think it's a very clearly unreliable certification, and the case needs to go back under UC health care, or UC health, excuse me. [00:10:51] Speaker 05: If we were to disagree with you about that and get to the merits on the negotiating expenses, how do you distinguish this court's decision in [00:11:02] Speaker 03: There are a couple ways in which this case is distinguishable from Fallbrook. [00:11:06] Speaker 05: Material distinctions. [00:11:07] Speaker 05: Legally significant distinctions. [00:11:09] Speaker 03: I think that there are meaningful, significant distinctions between the two cases. [00:11:13] Speaker 03: Primarily, there are differences in the record. [00:11:16] Speaker 03: There was also a finding by the board that there was a path of obstructionist behavior in Fallbrook that's not present here. [00:11:23] Speaker 03: And you also have the board acting in an additionally arbitrary manner, because they rely here on the period of time when these alleged bad faith bargaining actions came up. [00:11:36] Speaker 03: The same two-member panel didn't rely on that reasoning in Fallbrook Health. [00:11:40] Speaker 03: It's as though they've supplemented the record here, trumped it up, because they knew it wasn't sufficient on its own to support the award of negotiating expenses. [00:11:48] Speaker 03: The board can't do that. [00:11:49] Speaker 03: That's arbitrary and capricious, and that's one of the reasons why it's distinguishable. [00:11:53] Speaker 05: Okay, thank you. [00:11:56] Speaker 05: Thank you. [00:12:05] Speaker 04: Good morning, Your Honors. [00:12:05] Speaker 04: Barbara Sheehy for the National Labor Relations Board. [00:12:08] Speaker 04: I guess we'll turn first to the certification. [00:12:10] Speaker 04: It's accurate. [00:12:10] Speaker 04: We submitted a 28-J on Friday, drawing the score's attention to UC Health and SSC Mystic. [00:12:15] Speaker 04: Simply as a matter of, those cases were cited in our brief, and no, forget exactly what page it was on. [00:12:20] Speaker 04: It's in the 20HA. [00:12:22] Speaker 04: But not to say that there's any, not to open the door now to talk about things that weren't even brief, talking about consent elections and stipulated election agreements. [00:12:30] Speaker 04: That being said, I think Judge Trinivasan brings up exactly the point that the board is still contesting in other cases outside of the circuit having to do with consent elections being very different than a stipulated election. [00:12:41] Speaker 04: The consent election, as Your Honor pointed out, is a voluntary contract that the parties entered into that under the regulations, if you execute this type of election agreement, you agree, both parties agree, that the regional director will have final say in terms of the objections to the election. [00:12:58] Speaker 04: So I think that it's very significant. [00:13:01] Speaker 02: But maybe I'm missing something. [00:13:02] Speaker 02: Our prior case drew a distinction between the final authority being a problem and the non-final authority. [00:13:09] Speaker 04: Your Honor's accurate. [00:13:10] Speaker 04: In UC Health, there is that. [00:13:11] Speaker 04: But it wasn't in the context of analyzing a consent election agreement. [00:13:16] Speaker 04: And what does that mean? [00:13:17] Speaker 04: What does that mean to enter into a voluntary contract to recognize that this agency official will have final say in terms of the election versus... That's really a waiver point, right? [00:13:28] Speaker 02: But I thought we said this kind of objection couldn't be waived. [00:13:31] Speaker 04: I'm not certain that we're making... We do make a waiver argument, and I'll get back to that because I actually... How's this different from a waiver argument? [00:13:38] Speaker 04: It's not that they waived. [00:13:39] Speaker 04: They voluntarily entered into an agreement. [00:13:42] Speaker 04: There wasn't a right that they waived. [00:13:46] Speaker 04: They entered into an election agreement to hold the election under the context of the regional director having the final say. [00:13:52] Speaker 04: So it's a voluntary recognition, I guess, that this is how the election is going to play out. [00:13:57] Speaker 04: In terms of the waiver, that is a different type of waiver, and that's what we actually briefed. [00:14:03] Speaker 00: But if they, how is it different from the waiver? [00:14:05] Speaker 00: Because if they voluntarily enter into an agreement to have the election conducted under this regional director, who they voluntarily agree will have final authority. [00:14:15] Speaker 00: But then they have a claim. [00:14:17] Speaker 00: And the claim is, well, this person to which, yes, we voluntarily agreed to have this person conduct the election, but it turns out that this person was invalidly carrying out the responsibilities of regional directorship because they were carrying out those responsibilities at a time when the board just didn't have a court. [00:14:34] Speaker 00: So they have that argument, and then you have to have a response to that argument. [00:14:40] Speaker 00: And it sounds like what you're saying is our response is, well, you can't make that argument because you entered into this contract, but that just sounds like a waiver argument. [00:14:48] Speaker 00: And maybe it is semantics, whether it's waiver or forfeiture, or they voluntarily recognize that that's a... But I think the problem is it turns out to be more than semantics, because if it's waiver, forfeiture, or voluntary agreement, they all sound similar to me. [00:15:01] Speaker 00: Sure. [00:15:03] Speaker 00: But in UC Health and SSC, we did say that this is the type of argument because it goes to the structure of the agency. [00:15:10] Speaker 00: That that's just not waivable. [00:15:12] Speaker 00: It doesn't matter what's happened before. [00:15:14] Speaker 00: If the party just brings it up to us, then we resolve that issue because it is [00:15:19] Speaker 00: this sort of claim that we look at, regardless of what has happened leading up to this point. [00:15:24] Speaker 04: And then I guess I would fall back then on what we briefed, which was, there is the other, aside from the consent election, there's the other issue of waiver that we briefed, that once you, so this puts it in a very different procedural posture from UC Health and SSC Mystic, once an employer recognizes a union and begins to bargain, and then two to three years later decides to attack a certification on the basis of [00:15:48] Speaker 04: after having signed an agreement to say we're not going to contest and then later contesting that, that's a very different thing. [00:15:55] Speaker 00: So that's also a waiver argument. [00:15:57] Speaker 00: That's absolutely a waiver argument. [00:16:00] Speaker 00: I agree that it's a different waiver argument, but it is a waiver argument. [00:16:04] Speaker 00: And I just wonder whether the language in UC Health and SSC that deals with waivers slash forfeiture arguments and says, look, [00:16:12] Speaker 00: Yes, there's waiver slash forfeiture arguments that generally apply. [00:16:15] Speaker 00: It generally is a good idea to erase things before the agency. [00:16:18] Speaker 00: That's usually the normal course, and there's all sorts of salutary reasons why that's in effect. [00:16:23] Speaker 00: That just doesn't apply to this kind of claim. [00:16:25] Speaker 00: This kind of claim can come up regardless of what's happened before. [00:16:28] Speaker 04: And I would argue that neither this court in UC health and SSC Mystic addressed the specific type of waiver they have here. [00:16:39] Speaker 04: You can understand that the waiver is quite different, right? [00:16:42] Speaker 04: In that, if you're testing the certification and the board is coming forward with an argument that was rejected, that you have waived your right to contest the certification, that's a very different thing than having, let's suppose this... Can I ask you this question? [00:16:55] Speaker 00: Do you know why the... [00:16:57] Speaker 00: UCHealth and SSC Mystic were on the books, the board decisions were on the books at the time that the board decided this case. [00:17:03] Speaker 00: Am I remembering the timeline correctly? [00:17:05] Speaker 00: The board decisions in UCHealth and SSC Mystic had been handed down. [00:17:10] Speaker 04: I'm sorry, the board decisions? [00:17:11] Speaker 04: I thought you meant this court decision. [00:17:12] Speaker 04: No, no, the board decisions. [00:17:14] Speaker 04: You know, I think so. [00:17:15] Speaker 04: I'm not positive. [00:17:16] Speaker 00: Well, it's just interesting to me that the board in those cases [00:17:19] Speaker 00: issued a determination as to the merits of whether the regional director continued to retain authority to which decision we accorded Chevron deference in UC Health and SSC, but then didn't do that here and just went straight to waiver. [00:17:33] Speaker 00: Is there a reason that [00:17:35] Speaker 00: that the board would be reluctant to interpret the statute so that the regional director has the authority in this case that it found that the regional director did have in UC Health and SSC? [00:17:47] Speaker 04: You know, I don't know that that's in the DNL and I don't think I'm in a position to say anything other than if the board felt clear that the case law, even out of this circuit, was clear that if you do not test the certification [00:17:59] Speaker 04: and you choose to bargain, and so I think they do cite Board case law and then also we've cited in a brief supplemental DC Circuit case law that says that that's the case, that the Board, I'm going to assume that the Board, when it wrote its decision, decided to go with what it viewed as settled case law. [00:18:14] Speaker 00: Right, but usually if you're going to issue a waiver, I mean it just seems to me that an antecedent question to waivers is there a problem in the first place. [00:18:21] Speaker 00: You would usually say, [00:18:23] Speaker 00: There's not any problem with the regional director acting here anyways. [00:18:26] Speaker 00: They would do what they did in UC Health and SSC, which is to say, well, I get what Laurel Bay says. [00:18:30] Speaker 00: I understand that. [00:18:31] Speaker 00: But we have discretion to construe the statute in a particular way. [00:18:34] Speaker 00: And the way we're construing it is that notwithstanding Laurel Bay, the regional director continues to have authority to act, notwithstanding the lapse of the board form. [00:18:42] Speaker 00: Could have done that here. [00:18:43] Speaker 00: And then followed up with waiver. [00:18:45] Speaker 00: And then we would have [00:18:47] Speaker 00: what would seem to be the same issue as UC Health and SSC, but in the absence of a board interpretation of the statute, I don't think we can do what UC Health and SSC did, which is to give Chevron deference to an interpretation that's just not there this time. [00:19:04] Speaker 04: But I don't think you have the board decision in order here relying on the consent election agreement. [00:19:09] Speaker 04: You don't have anything like that. [00:19:10] Speaker 04: You have the board saying that you have not tested the certification and you can't. [00:19:16] Speaker 04: And if you play that out to say to the natural course of events, let's suppose that this after this election, [00:19:22] Speaker 04: you actually had a fruitful negotiation session that resulted in a collective bargaining agreement. [00:19:28] Speaker 04: You can understand that in that case, the employer couldn't, that the board would have a policy interest in saying you've waived your right at this point to not only undo that collective bargaining agreement, but go after a certain patient. [00:19:39] Speaker 02: That's a policy argument, it's a good one, but it's not one that necessarily overcomes our doctrine that says these kinds of claims can always be raised. [00:19:49] Speaker 02: or usually be raised regardless of what happened before, because it's so important to ensure that the structure of the agency passes legal muster. [00:19:57] Speaker 04: And I would say that there are the cases that we do, we cite cases in our brief that recognize that under certain circumstances, constitutional claims can be waived under a certain set of circumstances, which here we cited, the ones involving the... Well, we said in the UC Health that this is not one of them. [00:20:14] Speaker 04: And that wasn't, and I guess our position is that this is a different type of situation. [00:20:19] Speaker 04: I understand, Your Honor, completely. [00:20:21] Speaker 04: I do know. [00:20:21] Speaker 02: Can I ask one other question about the regional director? [00:20:23] Speaker 02: This might be way beyond this case, but I'm curious. [00:20:27] Speaker 02: The regional director is appointed and removable by whom? [00:20:33] Speaker 02: The general counsel, right? [00:20:35] Speaker 04: Yes. [00:20:35] Speaker 04: Yes, the board has delegated to the General Council. [00:20:38] Speaker 02: I read, and correct me if you know, that the General Council can't remove the regional director without the consent of the board. [00:20:47] Speaker 02: you know if that's true or not. [00:20:48] Speaker 04: I'm sorry, I don't. [00:20:50] Speaker 02: If that is true, which I read, the regional director during the period that the board is incapacitated here is operating as a principal officer, which is a separate constitutional problem with the regional director, which is because it's not appointed by the president with the advice and consent of the Senate. [00:21:08] Speaker 02: And I honestly couldn't speak to that, but I would say that... I just sort that out there as a separate problem with the regional directors in this period. [00:21:15] Speaker 04: And it's possible that there's, and I don't know, but a lot of the authorities of the board are delegated to certain officers. [00:21:21] Speaker 04: If the board has delegated, for instance, and I don't know if this is true, if the board has delegated, for instance, to the general counsel to appoint and remove, it's also possible that there's a screening delegation that says... Right. [00:21:31] Speaker 02: If there were plenary authority to appoint and remove, I would agree. [00:21:34] Speaker 02: The reg IREDS had removed subject to the approval of the board. [00:21:38] Speaker 02: If there's no board in place, then the general counsel can't remove the [00:21:42] Speaker 02: regional director, and if the regional director can't be removed, then the regional director is operating as a principal officer but hasn't been appointed consistent with what principal officers need to be validly appointed. [00:21:54] Speaker 02: Separate problem beyond this case, but it occurred to me when I read all of this. [00:21:57] Speaker 04: It's an interesting question, and I'm sorry, I don't know. [00:22:00] Speaker 00: On this, just to follow up on the, not the principal officer issue, but on the regional director question that has been teed up. [00:22:09] Speaker 00: What would we do if we concluded that the waiver issue that you raise is subject to the same waiver disposition that we handed down in UC Health and SSC? [00:22:20] Speaker 00: So we say, well, this court has ruled that these sorts of objections can't be waived by conduct. [00:22:27] Speaker 00: And so it can always be raised. [00:22:29] Speaker 00: So then we have a situation in which this case, the objection has been raised. [00:22:32] Speaker 00: And we'd have to resolve it now. [00:22:36] Speaker 00: look at the merits of that? [00:22:38] Speaker 00: Would we send it back to the agency, as UC Health in a footnote suggested, or what is your view as to the proper disposition if we were to reach the conclusion that your waiver argument is no good because of UC Health and SSC? [00:22:54] Speaker 04: I would say that given the court's reluctance to go on just what the board said, which is the waiver argument, and then perhaps wanting to hear from the board on whether the board felt as if, once told, you don't have a waiver argument here, now do you have [00:23:09] Speaker 04: like what the court did in UC Health and SSC Mystic, I think that it could be remanded to the board then to say, do you have, board, please answer the question. [00:23:20] Speaker 04: You no longer have the waiver argument that you cited in terms of they've gone to bargaining, so the claim is preserved. [00:23:26] Speaker 04: Are you claiming Chevron deference now in this context? [00:23:29] Speaker 00: Even though the board could have done that, could have issued an interpretation in the first instance that would have teed up the Chevron question, [00:23:35] Speaker 04: in the face of losing the case, absolutely, I would say remanded to the board. [00:23:45] Speaker 04: If it's also decided, however, if the court, those aren't the only examples that could happen, right? [00:23:50] Speaker 04: The court could decide, board, you're all wet on the waiver argument, it's the exact same thing as UC health, but [00:23:56] Speaker 04: applying now the merits of UCHealth and SSC Mystic, even that the Chevron deference that you could, the court could still conclude that even on the merits of UCHealth and SSC Mystic, that the board's decision that the claim is not... I mean, I understand you'd prefer, I understand you'd prefer remand, and I guess I didn't mean to ask the question to ask what you'd prefer. [00:24:15] Speaker 00: I'm asking [00:24:17] Speaker 00: based on our decisions and what you know about the way these things normally occur, what would be the appropriate course? [00:24:24] Speaker 04: Is there an argument that not that you prefer remand, but that that is in fact what should happen because of... Sure, and I think that makes a good point earlier in that could the board have said in its case, not only is there waiver, but on top of that, we are interpreting the statute to say the regional director, even in a consent election, has this authority in the absence of the board quorum, and here's how we're interpreting the statute. [00:24:46] Speaker 04: If that's something that the board didn't do but didn't, I don't know that the board should be foreclosed from, in the first instance, rather than having this court, as an initial matter, shut down that line of cases. [00:24:58] Speaker 04: Because there would be a lot of those cases. [00:25:00] Speaker 05: Judge Srinivas is asking you, suppose we don't agree with that and think we shouldn't give the board another shot at Chevron deference because it chose not to do that. [00:25:11] Speaker 05: Then what do we do? [00:25:13] Speaker 05: Right? [00:25:14] Speaker 04: I didn't understand the question to be that, but if that's the case, then I don't think that the chevron deference, the lack of the board having cited chevron deference... No, is the chevron deference critical to you succeeding here? [00:25:25] Speaker 04: I don't believe so, no. [00:25:26] Speaker 04: Okay, so why not? [00:25:27] Speaker 04: Because UC Health and SSC Mystic, I think, make it very clear that in the absence of a board quorum, the regional directors can continue to act. [00:25:35] Speaker 04: And we also do have... I would say that if the board wants to go down this road and the court hasn't... Not final authority. [00:25:43] Speaker 04: I think the board then should, at the very least, first I would say I think it should be remanded to the board to address in the first instance, do you feel that you have Chevron authority? [00:25:53] Speaker 04: We understand you didn't exercise it. [00:25:55] Speaker 04: Are you meaning that you don't think you have it? [00:25:57] Speaker 04: If the court disagrees and says we're not going to give you that chance, you had it, you didn't do it, then I think at the very least we should be briefing the issue of [00:26:05] Speaker 04: What is the difference between a consent election then and UC health and SSC mystic? [00:26:11] Speaker 04: And does it matter then on the Chevron deference that the consent election versus a stipulated election agreement? [00:26:20] Speaker 05: Okay. [00:26:22] Speaker 05: Okay, thank you. [00:26:24] Speaker 05: Did counsel have any time left? [00:26:26] Speaker 05: I'd like to briefly respond if I may. [00:26:28] Speaker 05: Wait, I just was asking first whether you had any time left. [00:26:32] Speaker 05: Yes. [00:26:32] Speaker 05: Oh, you do? [00:26:33] Speaker 03: Thank you very much. [00:26:37] Speaker 03: I want to speak briefly about this idea of what should happen when the board's waiver argument is ultimately rejected by this court as it should be under very clear precedent. [00:26:46] Speaker 03: The board suggests that it should get a second at the apple, that's unprecedented, that we would just say to them, you didn't make the right arguments the first time, so let's just send it back to you so you can make some arguments that are compelling. [00:27:00] Speaker 03: ironic, given their position on waiver, and also just completely unsupported by precedent. [00:27:05] Speaker 03: What should clearly happen here is, just like in Laurel Bay, the statute should be considered to be controlling. [00:27:12] Speaker 03: UC Health and Laurel Bay clearly interpret the statute for this court. [00:27:16] Speaker 00: Why do you say it's completely unprecedented? [00:27:18] Speaker 00: Because in UC Health, in footnote one, we said in UC Health that if all the board had done is said that its interpretation is compelled by the statute, [00:27:28] Speaker 00: then we would remand to give the board a chance to espouse an interpretation that then we'd make a Chevron determination. [00:27:36] Speaker 03: The board has never said that it's compelled by the statute. [00:27:38] Speaker 00: I know, but the hypothesis of that footnote is that there are situations in which something comes up and we say, well, the board hasn't yet [00:27:47] Speaker 00: given us an interpretation of the statute. [00:27:50] Speaker 00: And we usually like to have agency determinations, interpretations of statutes, because that's the normal course of how we do things. [00:27:56] Speaker 00: And then we can decide whether to defer to it. [00:27:58] Speaker 03: Our interpretation of footnote one is, if the board had done that. [00:28:03] Speaker 03: Then if the board had done what said that the statute was clear and that they had an interpretation, then we would have given them the opportunity. [00:28:10] Speaker 03: I did not hear that argument today. [00:28:12] Speaker 03: And that argument is not in the briefs. [00:28:13] Speaker 03: And that argument is not in the letter with the supplemental authority. [00:28:17] Speaker 03: So it's the same situation as UC Health with regard to that. [00:28:20] Speaker 03: I'd also like to point out that even if we did apply Chevron, even if you did apply Chevron deference here, [00:28:25] Speaker 03: The boards got really no interpretation, but assuming for the sake of argument, they'd be advancing an argument that they had the authority to delegate to the regional directors in this manner, I think that is foreclosed in this circuit by the very clear language of UC Health and the very clear language of Laurel Bay. [00:28:44] Speaker 03: And for that reason, they're going to fail on Chevron deference. [00:28:47] Speaker 03: I even would go so far as to say that the brand X [00:28:50] Speaker 03: style of deference that you raised in your concurring opinion, they'd fail under that as well because there's very clear only permissible interpretation language that arises in Laurel Bay for these situations. [00:29:01] Speaker 03: So there is no standard under which the board can succeed here. [00:29:04] Speaker 03: This case, the certification is invalid and the order has to be vacated. [00:29:09] Speaker 03: Thank you. [00:29:10] Speaker 05: Thank you. [00:29:11] Speaker 05: The case is submitted.