[00:00:02] Speaker 01:
Case number 14-1107 at L. SW General, Inc., doing business at Southwest Ambulance Petitioner versus National Labor Relations Board.

[00:00:12] Speaker 01:
Ms.

[00:00:12] Speaker 01:
Davis for the petitioner, Ms.

[00:00:13] Speaker 01:
Isbell for the respondent.

[00:00:27] Speaker 03:
May it please the court, and may I apologize in advance.

[00:00:31] Speaker 03:
I am just recovering from a cold, so I have a frog in my throat this morning, but I will try and get through this argument this morning.

[00:00:38] Speaker 03:
Have you got some water?

[00:00:39] Speaker 03:
I do have some water right here.

[00:00:41] Speaker 03:
Thank you.

[00:00:43] Speaker 03:
And I have reserved five minutes for rebuttal.

[00:00:57] Speaker 03:
The court should reverse the National Labor Relations Board's decision, which affirmed administrative law Judge Dawson's August 8, 2013 decision that found that the petitioner SW General or Southwest Ambulance, which I will refer to as Southwest, violated a 2009 through 2012 collective bargaining agreement by unilaterally deciding to stop making longevity payment to qualified employees

[00:01:30] Speaker 03:
The longevity pay provision was first negotiated into the collective bargaining relationship between Southwest and the Union in 2001.

[00:01:40] Speaker 03:
The longevity payment provision provided for semi-annual payments that would be made on June 1st and December 1st during the term of the agreement.

[00:01:51] Speaker 03:
Now the first agreement that was negotiated between the Union and Southwest went into effect on July 1, 2001.

[00:02:01] Speaker 03:
So the first longevity payment that was due was in December of 2001.

[00:02:05] Speaker 03:
Each subsequent collective bargaining agreement thereafter contained a very similar longevity payment provision.

[00:02:14] Speaker 03:
Their only real change was as to some of the criteria for employees to qualify for the payment.

[00:02:21] Speaker 03:
Now we're here today because when the 2009 through 2012 contract terminated, unlike the prior CBAs, the parties weren't able to enter into an agreement either to extend the agreement or to enter into a new agreement.

[00:02:38] Speaker 03:
And in accordance with the terms of the contract, Southwest elected not to make any further longevity payments to the union members.

[00:02:47] Speaker 00:
So can I ask you, did that practice also apply to, for example, health benefits?

[00:02:55] Speaker 03:
That did not apply to health benefits because the terms were different in those provisions.

[00:02:59] Speaker 00:
And what's the relevant difference?

[00:03:00] Speaker 00:
Because as I read, at least how the board characterized the agreement, health benefits were also due, quote, during this agreement, close quote.

[00:03:10] Speaker 03:
For health benefits, the provisions stated that they were due during the term of the agreement.

[00:03:16] Speaker 03:
In contrast, the longevity payment provision provided that the payments were due on specific dates during the term of the agreement, which meant during the years of 2009, 2010, 2011, and the final one in June of 2012.

[00:03:32] Speaker 00:
But so it sounds like they both said during this agreement.

[00:03:35] Speaker 00:
It's just that the longevity ones had specific dates during this agreement.

[00:03:39] Speaker 00:
But it seems to me that the

[00:03:42] Speaker 00:
the operative force would be done by the provisions to say during this agreement, because your argument would be that means during this agreement.

[00:03:49] Speaker 00:
After this agreement, there's no obligation.

[00:03:51] Speaker 03:
Our position would be those specific dates during the agreement.

[00:03:56] Speaker 03:
There is authority if you apply the correct standard, which in this case the board did not do.

[00:04:01] Speaker 03:
They applied the clear and unmistakable waiver standard to this case.

[00:04:06] Speaker 03:
And our position is they should have applied the contract covered standard

[00:04:12] Speaker 03:
Looking at the specific provision, the longevity provision, the parties clearly intended that these payments would only be made on these specific dates during the years 2009.

[00:04:23] Speaker 00:
So how do health benefits payments, I take it, are made on particular dates?

[00:04:29] Speaker 00:
Or am I just not understanding how they actually work?

[00:04:31] Speaker 03:
Once you negotiate a contract with the carrier, they're made according to that contract.

[00:04:37] Speaker 03:
But in the CBA, there were no specific dates that obligated the company to provide benefits as of a particular date.

[00:04:45] Speaker 00:
But what if the health benefits portion of the agreements just said, health benefits shall be paid for on the dates specified by the contract with the carrier during this agreement?

[00:04:58] Speaker 00:
Then you'd have specific dates, and it would say during this agreement.

[00:05:00] Speaker 03:
Correct.

[00:05:01] Speaker 03:
And in that particular situation, once the contract expired, the employer would no longer be obligated to provide future health benefits according to the CBA to those employees.

[00:05:11] Speaker 00:
But isn't it just then understood that it seems like the only gap is that the contract, your contract with the union, didn't specifically say health benefits would be paid on the dates that the carrier requires that they be paid, which that just seems like that's obvious.

[00:05:24] Speaker 00:
It's understood that that's when health benefits

[00:05:26] Speaker 00:
would be paid.

[00:05:27] Speaker 00:
And so if you build that into the contract, then there's no difference, but yet you acknowledge that health benefits would still be paid.

[00:05:33] Speaker 00:
Right.

[00:05:33] Speaker 03:
And by building in specific dates to the contract, it shows that the parties clearly intended that it be limited to those specific dates.

[00:05:42] Speaker 03:
While in a contract where it just says during the term, if you look at prior cases, there is no clear understanding between the parties as to what the obligations are after the contract expires.

[00:05:57] Speaker 06:
Can I ask you about the ALJ's note that in August of 2012, you all reached a TA, a tentative agreement, to retain the longevity pay provision.

[00:06:12] Speaker 06:
And then in December, when an employee asked, was told, no, we're not going to do that.

[00:06:21] Speaker 06:
Do we know anything about what

[00:06:23] Speaker 06:
First of all, what caused the employer, Southwest, to back off from this tentative agreement?

[00:06:31] Speaker 03:
It's not so much that Southwest backed off, but the relationship between the union and the employee has been, to say the least, not very amicable.

[00:06:40] Speaker 03:
So there's been a lot of back and forth, and as a result, the tentative agreement fell through.

[00:06:59] Speaker 03:
I've addressed briefly in responding to prior questions as to the proper standard that we believe should be applied in this case.

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Like I stated, we believe that it was an error for the Board to apply the clear and unmistakable waiver standard.

[00:07:12] Speaker 03:
Another error that was found in the ALJ reaching for determination was that she improperly excluded the testimony of the Chief Operating Officer, Mr. Riles.

[00:07:24] Speaker 03:
This again goes to the issue of what the intentions of the party were

[00:07:28] Speaker 03:
when they negotiated the longevity provision.

[00:07:32] Speaker 03:
Mr. Griles was involved in the negotiation and the drafting of the longevity provision back to 2001 when it was first put into the collective bargaining agreement.

[00:07:43] Speaker 03:
He was not permitted to testify as to the bargaining history and he was the only witness available who had any personal knowledge as to what discussions occurred between the parties during the negotiation of the longevity provision.

[00:07:59] Speaker 03:
Mr. Riles, by having the knowledge of the bargaining history, should have been permitted to testify.

[00:08:08] Speaker 03:
In this particular case, if you look at the transcript from the hearing, it appears that the ALJ decided to exclude any testimony on that issue because she viewed it as his personal opinion or interpretation

[00:08:22] Speaker 03:
of that particular provision, rather than it going to the history.

[00:08:26] Speaker 03:
And if you look at the board cases, even if you apply their standards, they also say that the bargaining history is relevant for determining whether or not Southwest had an obligation to continue to make these longevity payments.

[00:08:45] Speaker 00:
But I thought you wanted to get his testimony in because you wanted to show what his subjective intention was.

[00:08:51] Speaker 03:
We wanted to be able to show the intentions of the parties when they initially negotiated and throughout the history of the longevity provision in the contract to show that it was the intent of the parties and the proper interpretation of that particular provision was that there was no obligation after June 30th of 2012 to make any additional longevity payments.

[00:09:14] Speaker 00:
But typically when we're doing contract interpretation, isn't it

[00:09:18] Speaker 00:
The standard is what's the objective manifestation of the party's intent, not what they subjectively might have had in mind at the time they were negotiating the agreement.

[00:09:26] Speaker 00:
And so we usually look at the language of the agreement and other surrounding circumstances to determine what the objective manifestation of the intent is, as opposed to the party's subjective intent when they're engaged in the negotiation.

[00:09:37] Speaker 03:
Our position is it's clear that they were only obligated on those specific dates during the term of the agreement.

[00:09:43] Speaker 03:
But to the extent that the court needs to look beyond that,

[00:09:47] Speaker 03:
Our position is the relevant information was held by Mr. Riles who had the bargaining history and he should not have been precluded from testifying to that.

[00:10:00] Speaker 02:
With respect to the federal vacancies, FBRA, how do you respond to the argument that even if there was a problem with the appointment of the acting general counsel here, that either through the facto officer doctrine or just through the operation of subsection E of

[00:10:29] Speaker 02:
3348, I believe it is, that exempts the General Counsel of the NLRB from that section, that through either one of those, I guess, I don't know whether you would say that the error is harmless or Congress has said,

[00:10:53] Speaker 02:
that those actions aren't to be invalid if you look at 33-48.

[00:11:02] Speaker 03:
Yes, so looking at 33-48, Congress has said they're not to be invalid, but they need to be ratified and or the individual has to be a de facto officer, which is the board's position on this, was that acting general counsel, Solomon, was a de facto officer.

[00:11:23] Speaker 03:
Our response to that is one, the de facto officer defense is to be raised by the board, and it was never addressed during the proceedings, either in the board's affirmation or in response to our exceptions.

[00:11:37] Speaker 03:
And two, there was no ratification in this case.

[00:11:40] Speaker 03:
When a properly appointed general counsel came in, at no point did he make any indication that he was ratifying the actions of the acting general counsel, Solomon, as he conducted himself in this particular case.

[00:11:55] Speaker 03:
I have exceeded my time unless there are additional questions for the panel.

[00:11:59] Speaker 00:
I have one follow-up question on that, which is you could have raised the invalid

[00:12:06] Speaker 00:
Your objection as to the general counsel status in answering the complaint, at that point you knew everything you needed to know to raise the objection.

[00:12:16] Speaker 00:
Is that all right?

[00:12:18] Speaker 03:
Our first opportunity to raise the objection would have been with the exceptions to the ALJ opinion.

[00:12:23] Speaker 03:
And I do believe that during proceedings, in fact, it was raised.

[00:12:29] Speaker 00:
Why do you say that's the first opportunity?

[00:12:30] Speaker 00:
Why didn't you have the opportunity back when the complaint was first filed?

[00:12:37] Speaker 03:
I can't recall the details as to why at that point in time it wasn't raised.

[00:12:42] Speaker 03:
But it was raised on a direct attack on the ALJ's decision.

[00:12:47] Speaker 00:
Yeah, I saw that it was raising the exception to the ALJ's decision.

[00:12:49] Speaker 00:
I guess I was wondering why it couldn't have been or wasn't raised prior to that time, at the time you answered the complaint.

[00:12:56] Speaker 03:
And I can't recall why it wasn't raised at that time.

[00:12:58] Speaker 06:
Let me ask you about our decision in Andrade from 1984.

[00:13:01] Speaker 06:
You don't cite it.

[00:13:02] Speaker 06:
The government, the board does cite it and relies on it.

[00:13:06] Speaker 06:
And of course, that case said you can challenge the act of an invalid officer and get around the de facto officer defense if you challenge it while the action is ongoing, which you've done here, and if you give them notice so that it could be corrected

[00:13:28] Speaker 06:
which it can't be here.

[00:13:30] Speaker 06:
And the question in my mind is whether your objection, as Judge Sweeney-Basin has said, came early enough.

[00:13:40] Speaker 06:
Now, it did come before the ALJ.

[00:13:45] Speaker 06:
Did you raise it before the ALJ?

[00:13:51] Speaker 06:
accepted to tell me how it was timely, not only because you didn't raise it in your response to the complaint, but when did you first raise it before the ALJ?

[00:14:04] Speaker 03:
It was raised during the filing of the exception.

[00:14:08] Speaker 06:
All right.

[00:14:08] Speaker 06:
So she didn't look at it either.

[00:14:10] Speaker 03:
She did not look at it.

[00:14:11] Speaker 06:
All right.

[00:14:13] Speaker 06:
OK.

[00:14:15] Speaker 06:
All right.

[00:14:16] Speaker 06:
We'll give you time to reply.

[00:14:20] Speaker 06:
Mrs. Bell.

[00:14:34] Speaker 06:
Let me ask you first, are we agreed that Mr. Solomon was invalidly appointed?

[00:14:39] Speaker 05:
We are not agreed.

[00:14:40] Speaker 05:
All right.

[00:14:41] Speaker 06:
Why don't you tell us why he was validly appointed?

[00:14:44] Speaker 06:
OK.

[00:14:45] Speaker 05:
I assume everyone can refer to their copy of the Federal Vacancies Reform Act at the back of our brief.

[00:14:50] Speaker 06:
Can we agree that he was appointed pursuant to subsection three?

[00:14:54] Speaker 05:
A3.

[00:14:55] Speaker 05:
3345A3.

[00:14:57] Speaker 05:
That is how the president designated him to be acting general counsel.

[00:15:01] Speaker 06:
All right.

[00:15:02] Speaker 06:
So how under that was he validly appointed?

[00:15:07] Speaker 06:
Under three.

[00:15:08] Speaker 06:
He was nominated to be the permanent general counsel.

[00:15:13] Speaker 06:
And I can't remember the other requirement.

[00:15:19] Speaker 06:
Go ahead.

[00:15:19] Speaker 05:
Under A3, the president may designate a senior agency official if that official has served at the agency for at least 90 days and is paid at least the GS-15 level.

[00:15:29] Speaker 06:
And Mr. Solomon met both requirements.

[00:15:33] Speaker 05:
What the company is arguing is that

[00:15:36] Speaker 05:
Section B1 takes away the President's ability to appoint under either A2 or A3.

[00:15:43] Speaker 05:
A2 is where another individual from another agency who's already been confirmed by the Senate can be placed temporarily on a detail into an open position.

[00:15:52] Speaker 05:
Our position is that you cannot read A2 and A3 out of the statute.

[00:15:58] Speaker 05:
B1 clearly refers

[00:16:01] Speaker 05:
to A1, A1 being the first assistant provision.

[00:16:04] Speaker 06:
Well, now you've got a problem there.

[00:16:06] Speaker 06:
Because even though it says notwithstanding A1, and then it's subsection A1, then it says any person, I can't find it right now, any person under this section is disqualified.

[00:16:26] Speaker 06:
So it's not restricted to A1.

[00:16:29] Speaker 05:
I think actually it is.

[00:16:31] Speaker 05:
Here are a couple of points.

[00:16:32] Speaker 05:
One is that the board believes under this section refers to

[00:16:38] Speaker 05:
3, 3, 4, 5 in total, the Federal Vacancies Reform Act allowed other statutes, existing statutes, to continue to be able to fill vacancies.

[00:16:48] Speaker 05:
It's not entirely exclusive if there are other statutes that allow vacancies to be filled.

[00:16:53] Speaker 05:
But more importantly, don't forget to read B1A, during the 365-day preceding the death resignation.

[00:17:02] Speaker 05:
Congress here is putting limits on the ability of a first assistant

[00:17:07] Speaker 05:
to fill this position.

[00:17:09] Speaker 05:
They do not want the president to designate someone after the vacancy occurs, someone who is a favorite of the president or the cousin of the president.

[00:17:20] Speaker 05:
After the vacancy occurs, you put somebody in the first assistant position.

[00:17:24] Speaker 05:
If B-1 didn't exist,

[00:17:26] Speaker 05:
they would fill the vacancy.

[00:17:28] Speaker 05:
So Congress is putting limits on who could be placed into the first assistant position and be nominated for the permanent position.

[00:17:36] Speaker 05:
All right.

[00:17:37] Speaker 06:
Do you agree with me that B1A and B makes a person who fits that ineligible?

[00:17:46] Speaker 05:
Yes.

[00:17:46] Speaker 05:
A person who fits B1 and meets all those, does not meet those requirements is ineligible.

[00:17:53] Speaker 05:
The legislative history is very clear that it applies to only first assistants, A1.

[00:17:58] Speaker 00:
Here's what I don't understand about that.

[00:18:00] Speaker 00:
If it only applies to first assistants, then how do you explain B1A little i?

[00:18:06] Speaker 00:
Because that's saying someone who didn't serve as a first assistant.

[00:18:11] Speaker 00:
So I don't understand how that provision does anything unless the B1 applies to all three categories.

[00:18:21] Speaker 00:
Otherwise, you're only talking about the first assistance.

[00:18:24] Speaker 05:
B1 only talks about first assistance.

[00:18:27] Speaker 00:
Notice that... No, but B1A little i.

[00:18:31] Speaker 00:
It says, B1 says, notwithstanding subsection A1, a person may not serve as an acting officer for an office under this section if, and then it gives some conditions.

[00:18:39] Speaker 00:
One of them is that during the 365-day period preceding the death, such person did not serve in the position of First Assistant.

[00:18:45] Speaker 04:
Yes.

[00:18:46] Speaker 00:
So that's completely a loggerheads with an argument that says that this provision only applies to first assistants.

[00:18:54] Speaker 00:
Because this provision says that person did not serve as a first assistant.

[00:18:56] Speaker 00:
So this provision is doing no work whatsoever if the B1 is limited to first assistants.

[00:19:03] Speaker 05:
This provision is putting in the time limits that are already in A3.

[00:19:07] Speaker 05:
So if you look at A3, the senior executive position has time limits.

[00:19:12] Speaker 05:
B1 adds time limits.

[00:19:13] Speaker 05:
Other thing you need to know is that A3 was added after B1.

[00:19:17] Speaker 05:
When the Senate reported this bill out, there were two ways.

[00:19:21] Speaker 05:
to fill a vacancy temporarily.

[00:19:23] Speaker 05:
First assistance and someone who had already been confirmed by the Senate.

[00:19:27] Speaker 05:
It went to the full Congress and people were concerned that there would not be enough.

[00:19:32] Speaker 00:
I still don't understand how B1A little i does any work because of course the person served as the first assistant within the last 365 days.

[00:19:42] Speaker 00:
They had to have for A1 to be triggered.

[00:19:44] Speaker 05:
Not necessarily.

[00:19:46] Speaker 00:
Okay and that's because?

[00:19:47] Speaker 05:
That's because A1 has no

[00:19:50] Speaker 05:
restrictions on time.

[00:19:52] Speaker 00:
If you read A1... So you think A1 would apply if the person had been a first assistant 12 years ago?

[00:19:59] Speaker 05:
If the president put that person in the first assistant position after the vacancy occurred.

[00:20:06] Speaker 05:
Do you see what I mean?

[00:20:08] Speaker 00:
Okay.

[00:20:08] Speaker 05:
If the person is in the first assistant position when the vacancy occurs, A1... Automatically triggers.

[00:20:14] Speaker 05:
Right.

[00:20:15] Speaker 05:
But if the vacancy occurs and then the president goes looking for somebody,

[00:20:19] Speaker 05:
and puts the person in after the vacancy occurs, the Senate decided it needed some restrictions.

[00:20:25] Speaker 05:
That person should have been in the position during the past year.

[00:20:30] Speaker 05:
You can't put someone in after the vacancy occurs.

[00:20:34] Speaker 05:
That's what B1 is saying.

[00:20:36] Speaker 05:
And nominate.

[00:20:37] Speaker 05:
You can't do it, but you can't nominate them to the committee.

[00:20:39] Speaker 06:
So you're saying that provisions notwithstanding subsection A1 means if you're a first assistant 12 years ago,

[00:20:48] Speaker 06:
you don't fulfill V1A1, that is, what seems to be a contradiction in terms, that is, notwithstanding subsection A1, that is, notwithstanding you're a first assistant, you don't qualify if you didn't serve

[00:21:08] Speaker 06:
as a first assistant.

[00:21:09] Speaker 06:
During the past year.

[00:21:11] Speaker 06:
I'm with Judge Struenevassan.

[00:21:13] Speaker 06:
That doesn't make any sense.

[00:21:14] Speaker 06:
So tell me how notwithstanding subsection A-1, which means if you served as a first assistant, how that doesn't apply under A-I?

[00:21:33] Speaker 05:
Under A-1.

[00:21:35] Speaker 05:
If you had been the first assistant 12 years ago or whenever, you could be placed into the position.

[00:21:43] Speaker 05:
There is no restriction on when you were, were you at the agency last week, the vacancy occurs, you can be put in before or after.

[00:21:53] Speaker 02:
Or couldn't the President, if I guess to be inventive,

[00:21:58] Speaker 02:
could say, you know, there's a vacancy here in the general counsel.

[00:22:05] Speaker 02:
I'm not really crazy about the current first assistant.

[00:22:09] Speaker 02:
I'm going to put my cousin in as the first assistant and replace the first assistant.

[00:22:17] Speaker 02:
After the vacancy occurs.

[00:22:18] Speaker 02:
After the vacancy occurs, and then the cousin can become automatically the acting general counsel.

[00:22:25] Speaker 05:
That's exactly what this provision is intended to prevent.

[00:22:29] Speaker 00:
Why do you think that the A1 would even be triggered in that situation?

[00:22:34] Speaker 00:
That someone would read the statute to say that if the President put someone in after the vacancy has already occurred, then by virtue of A1, they automatically ascend to the acting position?

[00:22:44] Speaker 05:
Because there are no time limits in A1.

[00:22:46] Speaker 05:
If you look at A3, for example, there's a very similar time limit.

[00:22:51] Speaker 05:
If you're an executive, if you're a senior agency official, you had to have been at the agency during the past year for at least 90 days.

[00:22:57] Speaker 05:
It's the same provision.

[00:22:59] Speaker 05:
They're trying to make sure that the president is not doing it in run around advice and consent, and that he's not putting political favorites into positions that should be, they're not always civil service positions, but positions where people are familiar with the agency and know what's going on.

[00:23:15] Speaker 06:
All right, let me ask you this.

[00:23:16] Speaker 06:
Under B-1, if we took away the notwithstanding phrase,

[00:23:21] Speaker 06:
And we just said, a person may not serve as an acting officer for an office under this section.

[00:23:27] Speaker 06:
Mr. Salomon is ineligible.

[00:23:30] Speaker 05:
Yes, and you would also be reading out A2 and A3 from the Act.

[00:23:34] Speaker 05:
There would be no reason to have A2 and A3.

[00:23:36] Speaker 00:
I do want to say this that I'm sorry.

[00:23:38] Speaker 00:
Go ahead, please.

[00:23:38] Speaker 06:
But he was appointed, we all agree, under A3.

[00:23:42] Speaker 05:
He was designated acting general counsel under A3.

[00:23:45] Speaker 06:
Right.

[00:23:47] Speaker 06:
Well, that's how he acted, as acting general counsel.

[00:23:49] Speaker 06:
Yes.

[00:23:50] Speaker 06:
All right.

[00:23:50] Speaker 00:
So as I understand your argument now, that's inconsistent with the OLC, Seth.

[00:23:56] Speaker 00:
Because I think OLC and its

[00:24:00] Speaker 00:
It has a bunch of questions, as you know, about how this applies.

[00:24:04] Speaker 00:
Question 13 is, if someone is designated to be First Assistant after the vacancy occurs, does that person still become the Acting Officer by virtue of being the First Assistant?

[00:24:12] Speaker 00:
Answer, while the Vacancy Reform Act does not expressly address this question, we believe that the better understanding is that you must be the First Assistant when the vacancy occurs in order to be the Acting Officer by virtue of being the First Assistant.

[00:24:25] Speaker 00:
So if I'm understanding your argument correctly, you disagree with that.

[00:24:28] Speaker 00:
You're taking a position that's at odds with what OLC said.

[00:24:31] Speaker 00:
And that's the only way that you give effect to this B1A little i is if we agree with you that the OLC got it wrong.

[00:24:40] Speaker 05:
I don't think so.

[00:24:41] Speaker 05:
I think you've got part of B1 is nomination to the permanent position.

[00:24:48] Speaker 05:
Right?

[00:24:49] Speaker 05:
So these restrictions in B1 apply to the first assistant if they are also nominated to the permanent position.

[00:24:58] Speaker 05:
So where the first assistant does not serve, the vacancy occurs, and then the first assistant is appointed.

[00:25:09] Speaker 05:
That person can't be nominated for the position if they had not served during the 365-day period before.

[00:25:18] Speaker 05:
I cannot say that the OLC is wrong.

[00:25:21] Speaker 05:
I mean, their reading of it is right.

[00:25:24] Speaker 05:
You just have to add in the part of B1 that says, and nominated for the position.

[00:25:29] Speaker 05:
Am I making, am I being more clear or more obtuse?

[00:25:33] Speaker 00:
No, no, I appreciate the effort.

[00:25:35] Speaker 00:
I do, and maybe me that's being obtuse.

[00:25:38] Speaker 00:
But I'm not understanding how OLC's answer to question 13 doesn't

[00:25:47] Speaker 00:
conflict with your argument as to why B1A little i does work?

[00:25:55] Speaker 05:
What about their answers at question 15, where they point out that B1 only applies to A1?

[00:26:04] Speaker 05:
And that is also part of the questions and answers, based on Senate- No, I get that.

[00:26:07] Speaker 00:
I'm not saying that you don't have things in the OLC opinion that support you.

[00:26:11] Speaker 00:
You do.

[00:26:11] Speaker 00:
And then we have to be the judge of whether those things are right under the law.

[00:26:15] Speaker 00:
But I guess all I'm saying is the position you're taking now as to why B1A little i does work seems inconsistent with OLC's answer to question 13, unless I'm missing something.

[00:26:27] Speaker 00:
And perhaps I am.

[00:26:29] Speaker 05:
But I didn't- I may not be understanding

[00:26:34] Speaker 05:
exactly your question.

[00:26:36] Speaker 05:
But little i is a restriction on the prior year.

[00:26:41] Speaker 05:
If you're going to be appointed under the first assistant provision, you had to have served as a first assistant in the past 365 days.

[00:26:54] Speaker 05:
for at least 90 days, if you're going to be nominated.

[00:26:57] Speaker 02:
I'm just trying to make sure I understand what you're saying.

[00:26:59] Speaker 02:
So you're saying that what B-1 does in A, Romanette 1 and Romanette 2, is that with respect to a first assistant, the president can't, the first assistant cannot have assumed office

[00:27:24] Speaker 02:
after the vacancy arises.

[00:27:29] Speaker 05:
If that person is nominated.

[00:27:31] Speaker 02:
If that person is nominated.

[00:27:34] Speaker 02:
So if the first assistant comes in after the vacancy arises and becomes acting general counsel, that's fine.

[00:27:46] Speaker 02:
They just can't be nominated.

[00:27:49] Speaker 05:
I think reading B1 all the way through, yes.

[00:27:54] Speaker 00:
But I think OLC already tells us that that person doesn't automatically become acting officer if they're put in the first assistant position after the vacancy arises.

[00:28:03] Speaker 00:
So this seems like it's a problem not to be worried about.

[00:28:07] Speaker 05:
Well, part of the issue here, of course, is that Solomon was not appointed under the first assistant provision, right?

[00:28:19] Speaker 05:
So he was just appointed under A3.

[00:28:22] Speaker 05:
And our position is that B1 does not apply to A3 because A3 already has its time limits.

[00:28:29] Speaker 06:
So if... Then how do you read the difference in language between notwithstanding subsection A1, a person may not serve as an acting officer for an office under this section, not under subsection A1?

[00:28:45] Speaker 05:
I read that as referring to 3345 in toll, because there are other statutes and other ways vacancies can be filled.

[00:28:54] Speaker 05:
But under the Federal Vacancies Reform Act,

[00:28:58] Speaker 05:
If you are A1, if you're first assistant, you have to meet these and you're nominated.

[00:29:02] Speaker 05:
You have to meet these provisions.

[00:29:04] Speaker 06:
But a person may not serve as an acting officer for an office under 3345.

[00:29:09] Speaker 06:
That's the section.

[00:29:13] Speaker 06:
Not 3345A1.

[00:29:18] Speaker 05:
Remember, A3 was added after.

[00:29:23] Speaker 05:
B1 is there.

[00:29:26] Speaker 05:
Congress inserted A3.

[00:29:27] Speaker 05:
And I think that's part of the confusion.

[00:29:30] Speaker 05:
A3 is added after the Senate bill is reported out.

[00:29:37] Speaker 05:
If that helps.

[00:29:40] Speaker 05:
I see my time has elapsed.

[00:29:43] Speaker 05:
Are there more questions?

[00:29:44] Speaker 05:
Would you like to talk about 33480?

[00:29:47] Speaker 02:
When you were referring to the questions from the OLC, are you referring to the 1999 opinion or the earlier?

[00:30:02] Speaker 04:
I think it's the 1999.

[00:30:03] Speaker 04:
It came out after the revisions in 1998.

[00:30:08] Speaker 02:
Because I was told that the OLC revised its

[00:30:15] Speaker 02:
I have a further question for you on this.

[00:30:26] Speaker 00:
So are you taking the position that if we think that the appointment was invalid, that

[00:30:38] Speaker 00:
Put aside de facto officer and suppose we disagree with you on de facto officer and are you taking the position that still the remedy shouldn't be to annul the acts that were undertaken by the Acting General Counsel?

[00:30:58] Speaker 00:
Is there some other reason, in other words, that those actions continue to be okay?

[00:31:05] Speaker 05:
Under Dulin and the Administrative Procedures Act, I think you can find them to be okay.

[00:31:09] Speaker 05:
I mean, the company did get full adjudication by the board of its evidence and its arguments.

[00:31:18] Speaker 00:
Oh, I'm sorry.

[00:31:18] Speaker 00:
I'm not being precise enough.

[00:31:21] Speaker 00:
I guess my question is this.

[00:31:24] Speaker 00:
Acting General Counsel puts in motion a sequence of events that results in the filing of a complaint.

[00:31:32] Speaker 00:
But the complaint is filed by, I think, somebody else, right?

[00:31:34] Speaker 05:
It's filed by a regional director.

[00:31:35] Speaker 00:
A regional director.

[00:31:37] Speaker 00:
I didn't see you to be making the argument that

[00:31:40] Speaker 00:
The difference between the acting general counsel and the regional director is a basis for you to get the decision sustained, even if we assume that the acting general counsel was invalidly appointed.

[00:31:52] Speaker 00:
No.

[00:31:52] Speaker 00:
Okay.

[00:31:52] Speaker 00:
So you agree that if the acting general counsel was invalidly appointed, the fact that he or she is not the one who's issuing the complaint that it's the regional director, that is a distinction without a difference for our purposes.

[00:32:04] Speaker 05:
Yes, except on the issue of prejudicial error.

[00:32:06] Speaker 05:
In this particular case, the regional director issued the complaint based on existing board precedent.

[00:32:17] Speaker 05:
This was not a case that had to be submitted to the general counsel's office for review.

[00:32:21] Speaker 05:
There are cases that are

[00:32:23] Speaker 05:
of substantial legal interest to the general counsel, and he wants to look at those before complaint issues.

[00:32:29] Speaker 05:
This was not one of those cases.

[00:32:31] Speaker 05:
It was issued under board general procedure.

[00:32:35] Speaker 05:
So there was not involvement by the general counsel's office in the issuance of this complaint.

[00:32:42] Speaker 05:
So in terms of prejudicial error,

[00:32:45] Speaker 05:
my answer is, issued by the regional director under normal board procedure, I think, does make a difference.

[00:32:51] Speaker 05:
But if there's no general counsel in office, we would not be issuing complaints.

[00:32:58] Speaker 06:
All right.

[00:32:58] Speaker 06:
Did you make the argument you just enunciated?

[00:33:03] Speaker 05:
In our brief?

[00:33:04] Speaker 06:
The prejudicial error argument?

[00:33:06] Speaker 06:
Well, under the prejudicial error, the fact that the general counsel did not have to look at this because it didn't raise some

[00:33:13] Speaker 06:
to his level of interest.

[00:33:16] Speaker 06:
Did you make that argument?

[00:33:17] Speaker 06:
I did not.

[00:33:18] Speaker 06:
All right.

[00:33:19] Speaker 05:
We discussed the board having reviewed and fully adjudicated the case.

[00:33:23] Speaker 06:
Okay.

[00:33:25] Speaker 05:
All right.

[00:33:25] Speaker 05:
Thank you.

[00:33:26] Speaker 06:
How much time does Ms.

[00:33:28] Speaker 06:
Davis have?

[00:33:41] Speaker 03:
I'll use my brief time to respond to the board's response to your question regarding the impact of the acting general counsel possibly arguably being improperly appointed in this particular case.

[00:33:56] Speaker 03:
It may have been the acting general counsel's position that this particular type of proceedings did not need to get approval of the general counsel.

[00:34:04] Speaker 03:
But each general counsel has the ability to set their own strategy and strategic plan.

[00:34:10] Speaker 03:
And we don't know what a properly appointed acting general counsel position would have been on this particular claim.

[00:34:18] Speaker 03:
That particular acting general counsel may have decided that you should not be applying the clear

[00:34:24] Speaker 03:
and unmistakable waiver standard.

[00:34:27] Speaker 03:
And then, in fact, the board should be following the standard in this circuit, which is looking at whether or not the obligation was covered by an existing collective bargaining agreement.

[00:34:37] Speaker 06:
So you're arguing prejudicial error.

[00:34:40] Speaker 03:
Arguing that there was no, that there was prejudicial error because there's uncertainty as to whether or not a properly appointed general counsel, what their position would have been.

[00:34:50] Speaker 03:
OK.

[00:34:52] Speaker 06:
All right.

[00:34:52] Speaker 03:
Thank you.