[00:00:01] Speaker 02: Case number 14-1049 at L, UC Health Petitioner vs. National Labor Relations Board. [00:00:07] Speaker 02: Mr. Hastings for the petitioner, Ms. [00:00:09] Speaker 02: Itzbel for the respondent. [00:00:42] Speaker 03: It's a little too tall. [00:00:43] Speaker 01: Is that as high as it goes? [00:00:46] Speaker 01: I don't think so. [00:00:47] Speaker 01: Keep going. [00:00:48] Speaker 03: Yeah, thanks. [00:00:49] Speaker 01: I'm too tall for airplanes. [00:00:50] Speaker 01: Either that or get shorter. [00:00:52] Speaker 03: Yeah, I know. [00:00:52] Speaker 03: It's like leaving an airplane is also a problem. [00:00:57] Speaker 03: My name is Harry Hastings. [00:00:58] Speaker 03: I represent UC Health. [00:01:00] Speaker 03: I'll initially address waiver briefly and then move to the merits. [00:01:04] Speaker 03: On waiver, [00:01:05] Speaker 03: Initially, this issue isn't subject to the non-religiation rule because the board's quorum is not a representation issue. [00:01:12] Speaker 03: It doesn't go to things like voter eligibility, scope of the unit, how the election should take place. [00:01:19] Speaker 03: It's none of those things. [00:01:20] Speaker 01: Indeed. [00:01:21] Speaker 01: Am I not correct? [00:01:23] Speaker 01: Even if the employer and union stipulate to an election, there certainly can be an objection after it's based on conduct that wasn't anticipated [00:01:37] Speaker 01: a speech that is improper, et cetera, et cetera, et cetera. [00:01:42] Speaker 01: So the stipulation doesn't preclude [00:01:49] Speaker 03: That's right. [00:01:51] Speaker 03: The election just resolves things like mechanics, like when the election is going to be, who's going to vote, what's the unit. [00:01:57] Speaker 03: It doesn't address these other issues that can still be raised. [00:02:03] Speaker 03: And, Your Honor, it wouldn't have made sense for you to try to litigate the board's forum in a representation case because it's curable. [00:02:10] Speaker 03: I mean, the election stipulation was reached 30 days before the election took place. [00:02:15] Speaker 03: The Senate could have confirmed board nominees. [00:02:17] Speaker 03: There could have been people put in through a proper recess appointment. [00:02:21] Speaker 03: It's not the sort of issue that makes sense to litigate in a representation case at all. [00:02:26] Speaker 03: But, and to be honest, Your Honors, the board's procedures are not set up to address the quorum. [00:02:33] Speaker 03: It's really something that the board is not set up to address. [00:02:37] Speaker 03: Even in an unfair labor practice case, when you appeal from an ALJ decision, you don't know when the board's going to decide it or who's going to be on the board at the time it takes place. [00:02:46] Speaker 03: So you couldn't preemptively raise [00:02:48] Speaker 03: a board quorum issue, it just is sort of a hard issue for the board's processes to deal with. [00:02:54] Speaker 03: And that leads to the only other point I'd like to make on waiver orally is null canning. [00:02:59] Speaker 03: I feel some trepidation raised talking about that because I have a null canning panelist in front of me. [00:03:03] Speaker 03: So maybe presumptuous for me to tell Judge Griffith what this means. [00:03:06] Speaker 03: But null canning squarely held that the quorum issue raises extraordinary circumstances, which would excuse a total failure to present the issue to the board. [00:03:16] Speaker 03: I think, in part, that could be based on this procedural problem. [00:03:19] Speaker 03: It's like, how do you present that issue to the board? [00:03:22] Speaker 01: When? [00:03:22] Speaker 01: How? [00:03:22] Speaker 03: It's hard to do. [00:03:24] Speaker 03: Also, of course, it goes to the import position. [00:03:26] Speaker 01: There's a more fundamental question. [00:03:27] Speaker 01: If there ain't no board, how can you raise it to the board? [00:03:30] Speaker 01: I agree. [00:03:32] Speaker 01: And the lack of a quorum is equivalent to having no board. [00:03:35] Speaker 03: I completely agree with that. [00:03:36] Speaker 03: It really is a jurisdictional. [00:03:37] Speaker 03: It's a power jurisdiction issue. [00:03:39] Speaker 01: It's not jurisdiction, but it's certainly. [00:03:41] Speaker 01: And I think that was suggested. [00:03:43] Speaker 01: Your position was suggested in a prior case in your administration. [00:03:48] Speaker 01: A long time ago. [00:03:50] Speaker 01: I don't know who wrote Yardmaster. [00:03:55] Speaker 03: But the only difference between our case and Millcanning is that our case is better, because we did present the issue to the board in the unfair labor practice case. [00:04:02] Speaker 03: They did get a chance to address it. [00:04:03] Speaker 03: In Millcanning, the board never got a shot at this issue, period, ever. [00:04:07] Speaker 03: And the court still considered it. [00:04:08] Speaker 03: So we think this issue is properly before the court for those reasons. [00:04:12] Speaker 04: And you think it's just the merits of the case are completely resolved by Laurel Bay. [00:04:17] Speaker 03: Um, well, Laurel Bay and Logic and other... No, Laurel Bay didn't address this issue. [00:04:23] Speaker 00: Laurel Bay... That's not the way we apply precedent. [00:04:26] Speaker 00: If there's dictum in a prior case, we don't hook on to it. [00:04:30] Speaker 00: Laurel Bay had nothing to do with whether or not... In fact, the Supreme Court has said in its own footnote that regional directors and general counsels are different. [00:04:40] Speaker 00: And they are obviously different. [00:04:41] Speaker 00: The regional directors here had delegated authority that was uncontested. [00:04:46] Speaker 00: And when you certified to the election, did not in any way protest to it. [00:04:50] Speaker 00: The regional director's work was done, properly done, lawfully done. [00:04:54] Speaker 00: And that was the end of it. [00:04:56] Speaker 00: It had nothing to do with the board's borough. [00:04:58] Speaker 00: Nothing. [00:04:59] Speaker 03: Now, Your Honor, I mean, I certainly agree that the regional director is different from the board. [00:05:02] Speaker 03: Right. [00:05:02] Speaker 03: But it's not a distinction that makes a difference in this case, because the regional director needed statutory authority to certify the election. [00:05:09] Speaker 00: The regional director had statutory authority for the prior delegation, which was not in any way [00:05:14] Speaker 00: in dispute. [00:05:15] Speaker 03: But there was no power to delegate. [00:05:17] Speaker 00: At the time the delegation was made pursuant to the board's statutory authority, no one said there were only two board members who did it. [00:05:26] Speaker 00: That delegation existed long before this case. [00:05:30] Speaker 00: It was in place, and we don't suppose that government officials [00:05:35] Speaker 00: within a hierarchy, take people at justice who have prior delegation. [00:05:39] Speaker 00: If the Attorney General leaves, we don't assume everyone under the Attorney General has delegated authority, stops operating. [00:05:45] Speaker 00: The regional director and general counsel have their own authority, which is uncontested here. [00:05:52] Speaker 00: totally lawful, uncontested, and the board was not involved in this case. [00:05:57] Speaker 00: You did not intend to object to anything about this ablection, which you could have, and made it a board question. [00:06:04] Speaker 00: And then you could have argued, the board has no authority. [00:06:07] Speaker 00: You ended it the way lots of employers do, by saying, okay, it's done, the election is done, we don't object to the unit, we don't object to the certification, it's over. [00:06:17] Speaker 00: And the regional director acted lawfully. [00:06:20] Speaker 03: The regional director simply couldn't act without the board forming him in the House. [00:06:23] Speaker 00: There's no theory, but there's no case that I can find to support that motion. [00:06:27] Speaker 03: Well, I agree that this is a case of first impression as far as I can tell. [00:06:29] Speaker 00: But I don't understand the argument. [00:06:30] Speaker 00: The only thing you're writing is Laurel Bay, and they didn't decide this case. [00:06:35] Speaker 03: Well, the argument, Your Honor, I think is fairly straightforward. [00:06:38] Speaker 03: The key statutory provision is Section 3B of the Act. [00:06:42] Speaker 03: There are three sentences of 3B that are at issue. [00:06:44] Speaker 03: The first sentence of 3B is the board delegation to the board itself. [00:06:49] Speaker 03: Right. [00:06:49] Speaker 03: That's explicitly addressed by Laurel Bay and the Supreme Court in your process. [00:06:52] Speaker 00: Right, and that's all that Laurel Bay is about. [00:06:54] Speaker 03: And then the second sentence is the issue in front of us now, which allows for a more narrow delegation to the regional directors on certain issues. [00:07:02] Speaker 00: Which was pre-existing, uncontested, and lawful. [00:07:06] Speaker 03: We agree that the delegation from 1961 is OK as long as the board has a quorum. [00:07:12] Speaker 00: Where does the statute say that, as long as? [00:07:15] Speaker 00: Because of the third sense. [00:07:15] Speaker 00: I mean, it's just made up out of whole cloth. [00:07:17] Speaker 00: It is so strange. [00:07:19] Speaker 00: It suggests you're shaking your head, but there's no authority to support when you're shaking your head over it. [00:07:23] Speaker 00: But the third sense. [00:07:24] Speaker 00: There's no authority to suggest that an agency goes kaput if one piece of it is non-operative because for one of a quorum. [00:07:33] Speaker 01: Counsel, may I ask the question [00:07:40] Speaker 01: Isn't your argument as the logic of Laurel Bay, the agency logic of Laurel Bay, which your argument as binds us, applies to the regional record? [00:07:51] Speaker 03: Certainly, Your Honor. [00:07:52] Speaker 01: I mean... And although the Supreme Court did not adopt it, it did not reject it and left it open. [00:07:59] Speaker 03: That's correct. [00:07:59] Speaker 01: That issue was... And the rest of your argument, I guess, is the general counsel stands under 10-J, [00:08:06] Speaker 01: it already stands in an entirely different position than the regional director. [00:08:09] Speaker 01: Because there's no provision whereby a party can appeal a general counsel's seeking of an injunction under 10-J to the board. [00:08:23] Speaker 01: But there is a provision whereby anybody can seek an appeal from a regional director's determination to the board. [00:08:30] Speaker 01: So that... Which you didn't do. [00:08:34] Speaker 01: Yeah, and your argument is [00:08:35] Speaker 01: You couldn't do it if there's no board. [00:08:37] Speaker 01: It's meaningless to say you waived a right to appeal to a non-existent character. [00:08:43] Speaker 03: Right. [00:08:43] Speaker 03: There's no board to appeal to. [00:08:45] Speaker 03: And I agree completely. [00:08:46] Speaker 03: I mean, the general counsel is a totally different animal. [00:08:48] Speaker 00: The board delegation to the general counsel... You said that during the proceeding. [00:08:51] Speaker 00: There's something about this election that we would object to. [00:08:57] Speaker 00: in the normal course, but we can't because there's no board. [00:09:00] Speaker 00: That's nonsense. [00:09:02] Speaker 00: That's not what you said. [00:09:04] Speaker 00: Synaptic thought. [00:09:04] Speaker 00: This is total nonsense. [00:09:06] Speaker 00: You accepted everything about that election. [00:09:10] Speaker 00: You did not object to the union composition, the votes, the board certification, the regional director certification. [00:09:17] Speaker 00: You could have, and you could have said, and preserved it, you could have said, you know, there's a piece of this that we want to object to, but we don't think there's a board there. [00:09:27] Speaker 00: You didn't say that, so you closed it out. [00:09:29] Speaker 03: Well, no. [00:09:30] Speaker 03: What we're objecting to is an attempt to certify the election without a valid board. [00:09:35] Speaker 03: It needs board power. [00:09:37] Speaker 00: It doesn't need board power. [00:09:39] Speaker 03: The regional director has to exercise board power. [00:09:41] Speaker 03: That's for magnesium casting. [00:09:43] Speaker 00: The magnesium casting case... The preceding delegation [00:09:48] Speaker 00: certified the regional director to operate. [00:09:50] Speaker 00: It's not like the cases you're talking about where the board isn't there and a group of the board is trying to delegate to itself in a way that is impermissible because there are not enough board members. [00:10:02] Speaker 00: This is a preceding delegation. [00:10:03] Speaker 03: But what I would say, Your Honor, is that the third sentence of 3B, the must have a quorum at all times, it limits section two, sentence two of 3B, as well as sentence one. [00:10:13] Speaker 03: It doesn't skip sentence two and only apply sentence one. [00:10:16] Speaker 00: I wonder what Supreme Court had in mind in their footnote. [00:10:19] Speaker 03: Well, they left the issue open, Your Honor. [00:10:20] Speaker 03: I agree with that. [00:10:22] Speaker 04: But Laurel Bay applies here as well? [00:10:30] Speaker 03: Absolutely, because the third sentence follows directly the second sentence. [00:10:33] Speaker 03: It's illogical to say, from the structure of the statute, to say that it skips the second sentence, limits the delegation to the board in the first sentence. [00:10:41] Speaker 04: So Yardmaster is still good law in this circuit, right? [00:10:46] Speaker 04: Yardmaster is good law, Laurel Bay is good law. [00:10:48] Speaker 04: So we need to harmonize them. [00:10:51] Speaker 04: Doesn't Yardmaster and Laurel Bay, when read together, stand for the proposition? [00:10:56] Speaker 04: that we need to look to the function that's being delegated. [00:11:01] Speaker 04: And in Laurel Bay, the function that was being delegated was adjudicative, right? [00:11:06] Speaker 04: That was a major point that Jess Sentel argued again and again. [00:11:11] Speaker 04: It was an adjudicative function. [00:11:13] Speaker 04: We don't have an adjudicative function here that's being delegated. [00:11:16] Speaker 04: We have an administrative function. [00:11:18] Speaker 04: And we actually have an administrative function that isn't a final word. [00:11:22] Speaker 04: Whereas in Laurel Bay, it was an adjudicated function that was the final word. [00:11:27] Speaker 04: When the adjudication was done in Laurel Bay by the two, that would be the end of it. [00:11:34] Speaker 04: That's not the case here. [00:11:35] Speaker 04: The regional director makes a decision here. [00:11:38] Speaker 04: That's not the end of the matter. [00:11:40] Speaker 04: at least as regards the agency, right? [00:11:43] Speaker 04: That decision can be objected to or the parties can agree to it themselves. [00:11:48] Speaker 04: So don't we have a very, if your investor tells us you look at the function, [00:11:53] Speaker 04: And Laurel Bay tells us, we're just looking at the adjudicated function here. [00:11:56] Speaker 04: We have a different case here when we just have administrative and not adjudicated function. [00:12:02] Speaker 04: Why isn't this a very different case than is Laurel Bay? [00:12:07] Speaker 03: Sure, because, Your Honor, it's a board function. [00:12:09] Speaker 03: It takes board power to certify elections. [00:12:11] Speaker 04: But the board gave them that function back in 1961, right? [00:12:15] Speaker 03: Right. [00:12:16] Speaker 04: And the board retained, delegated that authority to the regional director, and the board retained the authority to review. [00:12:24] Speaker 03: But your honor, it doesn't make any sense under the statutory structure or the existing precedent like Laurel Bay to say that the regional director can do something that the board cannot do. [00:12:33] Speaker 03: It's undisputed that the board could not certify this election. [00:12:36] Speaker 03: It didn't have a quorum. [00:12:37] Speaker 03: It didn't have power. [00:12:38] Speaker 03: So we're making the regional director better than the board. [00:12:41] Speaker 00: That is just not the case. [00:12:43] Speaker 00: There's so many cases where the regional director is the end of the question in the certification process, because the party doesn't object to anything about it. [00:12:51] Speaker 00: The board's not in play. [00:12:54] Speaker 00: That's entirely different from what we're talking about in these other cases. [00:12:58] Speaker 00: The board is not in play when the regional director, exercising that long-existing authority, says, here's what I'm doing. [00:13:06] Speaker 00: Neither party objects to what has been done. [00:13:09] Speaker 00: It's over. [00:13:10] Speaker 00: It's an administrative responsibility and it's over. [00:13:13] Speaker 00: They're not in play unless a party objects to what the regional director has done. [00:13:21] Speaker 00: And you didn't object to that. [00:13:24] Speaker 00: You did not object as you could have. [00:13:27] Speaker 00: to the certification process and say, we are objecting to the unit, we're objecting to the vote, or whatever it is that it was there to object to. [00:13:35] Speaker 00: There wasn't anything to object to. [00:13:38] Speaker 03: I guess the thing where I don't think Your Honor and I are on the same page is that, in our view, the board is always in play in these issues because the regional director is stepping in the board's shoes. [00:13:46] Speaker 00: He's not stepping. [00:13:47] Speaker 00: The board has delegated certain power to the regional director. [00:13:50] Speaker 03: I mean, I think magnesium casting says that... It's delegated power, right? [00:13:55] Speaker 00: And it's not the same as an adjudication. [00:13:57] Speaker 03: But there wasn't any power to delegate when the board didn't have a quorum. [00:14:00] Speaker 00: It was long ago delegated. [00:14:02] Speaker 00: The thing I don't get at all, the logical extension of your argument is a lot of agencies will collapse. [00:14:09] Speaker 00: internally because they will not be able to function on your theory because they're all kinds of folks within agencies who have the delegated administrative authority and your argument is they can't continue to operate if the head of the agency doesn't have a quorum. [00:14:23] Speaker 03: Our argument is more narrow than that, Your Honor. [00:14:25] Speaker 03: It's only the second sentence delegation that we're asking should fall. [00:14:28] Speaker 03: So it's things like, you know, certifying an election. [00:14:31] Speaker 03: That's the stuff that falls. [00:14:32] Speaker 03: It's only second sentence of Section 3B that's at issue. [00:14:35] Speaker 03: We're not saying that the lights have to go out at the NLRB or the regions have to stop investigating unfair labor practices or the general counsel has to stop. [00:14:42] Speaker 03: We're just saying that you can't certify elections when you don't have any board quorum. [00:14:57] Speaker 01: this case because the National Mediation Board specifically authorized the delegation to one member. [00:15:04] Speaker 01: Wasn't that correct? [00:15:06] Speaker 03: I think that's right, Your Honor. [00:15:08] Speaker 03: I'm not quite as sure on that one. [00:15:10] Speaker 01: You should have. [00:15:11] Speaker 03: You should have been. [00:15:13] Speaker 01: Yeah. [00:15:13] Speaker 01: That's my recollection of the ordinance. [00:15:15] Speaker 01: There's a specific statute that allows the delegation to one member. [00:15:20] Speaker 01: And Judge Edmonds was very careful when he was writing that opinion to make sure it was narrow. [00:15:26] Speaker 01: He, instead, was narrowed. [00:15:28] Speaker 01: So I don't see that Yardmaster is in any way in conflict with Lola Bay. [00:15:32] Speaker 03: I don't get it. [00:15:34] Speaker 03: I don't think that. [00:15:35] Speaker 03: I mean, the RLA is a different animal than the NLRA. [00:15:39] Speaker 01: Yes, but particularly on this point. [00:15:41] Speaker 03: Right. [00:15:43] Speaker 03: I mean, I don't think Yardmaster gives us problems. [00:15:46] Speaker 03: I mean, the thing that I guess, where Judge Edwards and I seem to be disagreeing. [00:15:50] Speaker 01: If I were you, I would have read Yardmaster carefully enough to answer my question. [00:15:56] Speaker 03: I think you're right, that would have been helpful. [00:16:00] Speaker 03: I guess I'm way over, unless there's more questions. [00:16:03] Speaker 04: We'll give you back a minute or two. [00:16:11] Speaker 05: May it please the court. [00:16:16] Speaker 05: May it please the court. [00:16:18] Speaker 05: Kelly Isbell here on behalf of the National Labor Relations Board. [00:16:21] Speaker 05: The company waived its challenge to the regional director's authority by not raising that challenge at the time appropriate under the board's procedures. [00:16:29] Speaker 01: That's not consistent with our law. [00:16:32] Speaker 01: That's not consistent with all of that. [00:16:34] Speaker 01: It's not consistent with other cases. [00:16:39] Speaker 01: Whatever argument you have on the merits, the waiver argument seems to be disposed of by law of A, isn't it? [00:16:46] Speaker 05: I don't think so, Your Honor. [00:16:47] Speaker 01: And I had a case too, which [00:16:52] Speaker 05: This case is not about the board's quorum. [00:16:56] Speaker 01: This case is about... I know, but it's a structural question. [00:16:59] Speaker 01: We've said in the past that these kinds of questions are not waived. [00:17:05] Speaker 05: Questions about the board's jurisdiction? [00:17:07] Speaker 01: Authority. [00:17:08] Speaker 05: Authority. [00:17:09] Speaker 05: I mean, in no way... Well, can we say that in worldwide? [00:17:13] Speaker 01: Before we got to the merits, didn't we decide that we could reach the issue of the merits, even though it was argued there was a waiver? [00:17:20] Speaker 05: We're talking about Noel Canning, perhaps? [00:17:24] Speaker 05: Both. [00:17:25] Speaker 05: I mean, Noel Canning... Both cases. [00:17:27] Speaker 05: In Noel Canning, the court did not say that the issue was jurisdictional, just that it found extraordinary circumstances to raise the issue. [00:17:34] Speaker 01: Right, they're challenging the basic authority. [00:17:36] Speaker 05: Right. [00:17:37] Speaker 05: So isn't that law binding us? [00:17:40] Speaker 05: This case, I think the argument for waiver here is very different. [00:17:44] Speaker 00: Why? [00:17:44] Speaker 05: I mean, in Laurel Bay and Noel Canning, [00:17:47] Speaker 05: The courts were discussing the board's authority to issue adjudications. [00:17:53] Speaker 05: Here what you have is a very different kind of delegation and a different kind of authority. [00:17:58] Speaker 01: It may be a different kind of authority which goes to the merits, but it's certainly not a different kind of question for the waiver. [00:18:05] Speaker 05: I think it is in this particular case. [00:18:07] Speaker 01: But the argument that the regional director's authority stops [00:18:12] Speaker 01: In this case, Your Honor, we have a stipulation. [00:18:22] Speaker 01: We have a contract between the employer and the union. [00:18:28] Speaker 05: Well, the board in its order stated that one of the reasons it was denying, it was finding an unfair labor practice and not reviewing the objection was because neither party requested review of the regional director's decision. [00:18:40] Speaker 05: Part of that failure to request review... Suppose there was no board. [00:18:43] Speaker 01: Suppose there's zero board. [00:18:46] Speaker 01: There's no members. [00:18:47] Speaker 01: And you're still saying that a party has to seek review of the non-board board? [00:18:53] Speaker 05: And I know where you're going. [00:18:55] Speaker 05: There's a line in Yardmasters about there being absolutely nobody at the top. [00:18:59] Speaker 01: I thought I'd type it. [00:19:00] Speaker 01: You know, I read these opinions of my colleagues very carefully. [00:19:06] Speaker 05: Yes. [00:19:06] Speaker 05: In this case, of course, there were people at the top. [00:19:09] Speaker 01: Suppose there was zero. [00:19:10] Speaker 01: There's no board. [00:19:12] Speaker 01: It's gone. [00:19:12] Speaker 01: And you're saying you must, as a party in the position of the position here, seek review of an onboard board. [00:19:22] Speaker 05: Think about it this way. [00:19:24] Speaker 01: Yes, in this particular case. [00:19:38] Speaker 05: If no board existed, I honestly do not know what the board's procedure would be. [00:19:42] Speaker 05: We have an executive secretary there. [00:19:44] Speaker 05: People have faxed him. [00:19:45] Speaker 01: No, so okay, so there's no members. [00:19:47] Speaker 01: You could easily hypothesize that. [00:19:49] Speaker 01: There are no members. [00:19:50] Speaker 01: They're gone. [00:19:51] Speaker 01: And their terms have run out in the Congress and won't confirm anybody else. [00:19:55] Speaker 01: Zero. [00:19:56] Speaker 01: Right. [00:19:57] Speaker 01: So a party still must seek review of the non-board board. [00:20:02] Speaker 00: You're trying to distinguish this situation because there was no contest [00:20:06] Speaker 00: with respect to the certification process, which is what a party would seek review from. [00:20:11] Speaker 00: And it really just goes to the merits, and Judge Silverman's right, it's a more structural question. [00:20:16] Speaker 00: But here, they had nothing to contest there. [00:20:19] Speaker 00: This was good. [00:20:20] Speaker 00: So the only question is whether or not [00:20:22] Speaker 00: there's some validity to their argument about the authority of the regional director to continue operating, which to me seems insane. [00:20:30] Speaker 00: I'm trying to say it as clearly as I can. [00:20:33] Speaker 00: I just have never seen it. [00:20:34] Speaker 00: There's no authority for it. [00:20:37] Speaker 00: And as Judge Griffiths says, this has to do with an administrative function, not an adjudicatory function. [00:20:44] Speaker 00: There was nothing to appeal to the board at that moment. [00:20:48] Speaker 00: But they found a game to play after the fact [00:20:51] Speaker 05: After the union won the election, Your Honor. [00:20:53] Speaker 00: Right. [00:20:53] Speaker 00: And that's what your argument is. [00:20:56] Speaker 00: So it's really, get off the forfeiture. [00:20:57] Speaker 00: It's about this is a structural question. [00:20:59] Speaker 00: There's no validity to the claim that the regional director lacked authority to certify the election, which was uncontested. [00:21:06] Speaker 01: Why doesn't the regional director have a judicatory authority? [00:21:09] Speaker 01: He certainly does. [00:21:11] Speaker 01: I didn't hear the last one. [00:21:11] Speaker 01: The regional director certainly hasn't a judicatory authority. [00:21:15] Speaker 05: Not in terms of issuing final orders or legally enforcing orders. [00:21:18] Speaker 01: No, but it has a judicatory authority. [00:21:20] Speaker 01: sit in adjudication of our cases all the time. [00:21:25] Speaker 05: Our cases are not, what's the word, our cases are different than unfair labor practice cases. [00:21:31] Speaker 05: They're both adjudicatory. [00:21:33] Speaker 05: Not exactly. [00:21:34] Speaker 05: I mean, the board, no, all our case decisions are subject to board review. [00:21:38] Speaker 01: Counsel, I have tried our cases back in the day, memory man, one if not the contrary, for years. [00:21:46] Speaker 01: there are adjudicatory cases, which the regional director makes an adjudicatory decision, and you can appeal that to the board. [00:21:55] Speaker 01: And in this case, even though you have a stipulation, you could easily have had issues arise preceding the conducting of the election or the conducting of election, which could have been grounds for either party to object, in which case the regional [00:22:12] Speaker 01: decision, which could be appealed to the board. [00:22:14] Speaker 01: Absolutely. [00:22:15] Speaker 01: I'm only troubled about the distinction between administrative and adjudicatory when I know perfectly well the regional director does engage in adjudicatory functions. [00:22:25] Speaker 05: But the regional director can never issue what we call a final order. [00:22:31] Speaker 01: That's the argument, that's the petition's argument. [00:22:35] Speaker 05: If the regional director issues a decision... That's true. [00:22:39] Speaker 01: An ALJ can't issue a final order either. [00:22:41] Speaker 01: That's true. [00:22:42] Speaker 01: That's adjudicatory, isn't it? [00:22:43] Speaker 01: The case before the ALJ? [00:22:45] Speaker 01: It is adjudicatory. [00:22:45] Speaker 01: So why is that adjudicatory and our case before the regional director is not adjudicatory? [00:22:51] Speaker 05: Representation decisions are not supposed to be adversarial. [00:22:54] Speaker 00: Wait a minute, counsel. [00:22:55] Speaker 00: But the decision is final if it's uncontested. [00:22:58] Speaker 05: If it's uncontested. [00:22:59] Speaker 00: Well, that's the point. [00:22:59] Speaker 00: I mean, that's the distinction you have to ride on. [00:23:01] Speaker 00: And that's where their argument is fragile at best. [00:23:05] Speaker 00: It's final if it's uncontested. [00:23:07] Speaker 00: And if they had something to contest, I can't imagine this court. [00:23:11] Speaker 00: Actually, I can imagine it. [00:23:13] Speaker 00: But I would find it surprising. [00:23:15] Speaker 00: If we would turn away and say, well, it's OK that you didn't protest the vote when you could have. [00:23:21] Speaker 00: You said nothing about it until now. [00:23:24] Speaker 00: It would seem to me even if there was no board, if you went through an election and you thought that was something in firm that the regional record did, you would put that on the record. [00:23:33] Speaker 00: And you would say, we can't get to the board, but we're preserving our rights if that day ever comes. [00:23:38] Speaker 00: We're not buying what the regional director did. [00:23:40] Speaker 00: That's not this case. [00:23:41] Speaker 00: They accepted the final judgment. [00:23:45] Speaker 00: You're wrong on that. [00:23:46] Speaker 00: It's a final judgment of the regional director, uncontested. [00:23:51] Speaker 05: Right, if it's uncontested, as it was in this case. [00:23:55] Speaker 05: But all RD decisions have the possibility of board review. [00:23:59] Speaker 05: If there is no board, the regional directors tee those cases up. [00:24:02] Speaker 05: And when there is a board with a proper quorum, those cases will be decided by the board. [00:24:08] Speaker 05: But in this particular case, they agree. [00:24:12] Speaker 05: They raise no issue until the union won the election. [00:24:15] Speaker 05: And that's what's... That's the waiver argument. [00:24:18] Speaker 05: That's the waiver argument. [00:24:19] Speaker 01: Suppose we reject the waiver argument based on the authority of other cases we have. [00:24:25] Speaker 01: Then what about the merits? [00:24:27] Speaker 05: Laurel Bay is distinguishable and it's a very different case. [00:24:31] Speaker 05: Laurel Bay was very concerned about the board issuing final orders requiring parties to do things when the board didn't have a quorum. [00:24:40] Speaker 05: This case is about a delegation of only representational authority. [00:24:45] Speaker 05: It's been in effect since 1961. [00:24:48] Speaker 05: Congress recognized when they amended the act in 1959 that it was taking the board too long to process elections and that the regional directors had the expertise to do that. [00:25:01] Speaker 05: As I said before, every regional director decision, if contested, you have an opportunity to go to the board for final review. [00:25:09] Speaker 05: If you don't contest it, [00:25:11] Speaker 05: then you live with what the regional director says. [00:25:13] Speaker 05: And in effect, in fact, that's what happens in a majority of our cases. [00:25:18] Speaker 05: They settle out. [00:25:19] Speaker 05: People go to elections. [00:25:20] Speaker 05: The union wins or loses. [00:25:21] Speaker 01: Are you making the waiver argument again? [00:25:23] Speaker 00: No. [00:25:23] Speaker 00: We're in a structural argument. [00:25:26] Speaker 00: Get off the waiver argument. [00:25:28] Speaker 00: Say no, Judge Silverman. [00:25:29] Speaker 00: It is not the waiver argument. [00:25:30] Speaker 00: He wants to ride that. [00:25:31] Speaker 00: Say, I don't want to be there, Judge Silverman. [00:25:34] Speaker 01: I'm going with that. [00:25:36] Speaker 01: I'm not surprised. [00:25:38] Speaker 01: Okay, so what isn't, it's interesting here, the structural argument, the merits argument and the waiver argument are very similar. [00:25:46] Speaker 01: From the point of view of the petitioner. [00:25:49] Speaker 01: The waiver argument is, I couldn't make this argument because there wasn't a board to make the argument to. [00:25:54] Speaker 01: And that's the same argument on the merits. [00:25:57] Speaker 05: It is fundamentally unfair to the Union and the people who voted in that election to not raise issues that were available at the time. [00:26:05] Speaker 05: There was, this was not a secret problem. [00:26:08] Speaker 05: This Courts and Old County decision came out months before the election petition was even filed. [00:26:13] Speaker 05: It is unfair to wait until the Union wins the election and then protest that the regional director didn't have authority. [00:26:20] Speaker 05: So in that way. [00:26:21] Speaker 01: I understand, and also true in Laurel Vague. [00:26:25] Speaker 05: Laurel Bay was about the board's authority. [00:26:28] Speaker 01: No, isn't it? [00:26:28] Speaker 01: It's the same argument. [00:26:29] Speaker 01: It's unfair to raise the issue late. [00:26:31] Speaker 01: Isn't that true in Laurel Bay, too? [00:26:34] Speaker 01: If you were right now, Laurel Bay would have come out the other way. [00:26:41] Speaker 04: That's a waiver argument. [00:26:41] Speaker 04: That's the fundamental point of waiver, unfairness. [00:26:44] Speaker 04: And we've resolved those. [00:26:51] Speaker 05: Do we have any further questions? [00:26:56] Speaker 03: I guess I'll only make two points. [00:27:00] Speaker 03: To the extent that the distinction between administrative function and adjudicative function seems important to the court, I mean, in our case, the certification is the culmination. [00:27:09] Speaker 03: It's an adjudication of the R. I mean, that's how it ends with an election. [00:27:13] Speaker 04: Well, how's it an adjudication? [00:27:15] Speaker 04: They count the votes, they run the election, they count the votes, and they say, you won, you lost. [00:27:20] Speaker 04: Where's the adjudication in that? [00:27:21] Speaker 03: Because when they issue the certification, that is the equivalent of the judgment. [00:27:24] Speaker 03: It's like the ALJ presentation. [00:27:26] Speaker 01: But you can't respond to Judge Griffin but point out that there are many, many, many situations where the regional director sits as an adjudicator on the question of what is the appropriate unit who should vote or even subsequent to the election. [00:27:42] Speaker 01: Did somebody do something? [00:27:44] Speaker 01: Did somebody make a captive audience speech on a peerless firewood 24 hours before the election? [00:27:51] Speaker 01: Did something else happen at the day of the election, which is objectionable? [00:27:56] Speaker 01: Either party could make a challenge to that, despite the stipulation. [00:28:00] Speaker 01: And the regional director has a hearing and sits as an adjudicator, right? [00:28:03] Speaker 03: That's exactly right. [00:28:04] Speaker 03: That's how it works. [00:28:04] Speaker 03: Yes, I know. [00:28:06] Speaker 03: Have you done any of these? [00:28:08] Speaker 03: Yeah, sure. [00:28:09] Speaker 03: I mean, most of the time, as you know, most things are stipulated. [00:28:12] Speaker 03: I mean, but yeah, we fight these sometimes when there's a reason to do so. [00:28:16] Speaker 01: Even if there's a stipulation. [00:28:18] Speaker 03: Yes. [00:28:18] Speaker 03: If something bad happens, right. [00:28:20] Speaker 03: That's right. [00:28:21] Speaker 03: But functionally, this is about [00:28:24] Speaker 03: It's about power. [00:28:26] Speaker 03: I mean, the second sentence of Section 3B, those are board functions that have to be done by the board. [00:28:31] Speaker 03: They can't be done by the regional director by delegation when the board doesn't exist. [00:28:35] Speaker 03: And then the only other thing I guess I would say is the policy arguments that they're trying to make, this is a narrow case. [00:28:41] Speaker 03: It will only affect the second sentence of Section 3B. [00:28:44] Speaker 03: It doesn't go any further than that. [00:28:45] Speaker 03: It doesn't affect the general counsel. [00:28:47] Speaker 03: It doesn't affect things like appointing regional directors. [00:28:49] Speaker 03: It's a narrow case, but we think that the statutory functions in second sentence of 3B can't be performed by the regional director in the absence of the board because the regional director isn't any better than the board. [00:29:00] Speaker 03: There aren't any other questions? [00:29:01] Speaker 03: That's all I think I'd like to say. [00:29:03] Speaker 04: Thank you very much. [00:29:04] Speaker 04: The case is submitted.