[00:00:02] Speaker 01:
Case number 15-1238L, NCR Corporation Petitioner versus National Labor Relations Board.

[00:00:09] Speaker 01:
Mr. Bloom for the petitioner, Mr. DeKant for the respondent.

[00:00:42] Speaker 07:
Good morning.

[00:00:43] Speaker 04:
Good morning.

[00:00:45] Speaker 04:
May it please the court, I'm Howard Bloom.

[00:00:47] Speaker 04:
I'm appearing on behalf of the Petitioner NCR Corporation.

[00:00:54] Speaker 04:
It is a fundamental National Labor Relations Board policy to afford employees the broadest possible participation in NLRB elections.

[00:01:08] Speaker 05:
Do you have the notice in front of you there?

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The notice of election?

[00:01:13] Speaker 03:
I have it in the... Why don't you get it out?

[00:01:16] Speaker 03:
Okay.

[00:01:17] Speaker 05:
I have a question about it.

[00:01:21] Speaker 03:
Do you have it?

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It's in the appendix.

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Here, I'll just read it to you.

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Okay.

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Notice must... Notice.

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Voters must return their mail ballots so that they will be received in the Regent 1 office

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I close the business Monday, August 4th.

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The mail ballots, next sentence, the mail ballots will be counted in the region at 10 a.m.

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of August 5th.

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What's confusing about that?

[00:01:57] Speaker 04:
Well, we would contend that by the inclusion of the verbiage so that they will be received,

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in that the notice language led the employees to believe that if they... What about the next sentence?

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About the... The next sentence.

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That they'll be counted?

[00:02:20] Speaker 04:
Yeah.

[00:02:21] Speaker 05:
Well, I think that... What could be clear?

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I mean, what could be...

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What's confusing about that?

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The next sentence doesn't really add anything to the equation because employees reading that first sentence, believing that as it led them to believe that if they put their ballots in the mail in time to be received by August 4, that their ballots would also be there in time to be counted by August 5.

[00:02:52] Speaker 04:
That's your case.

[00:02:55] Speaker 05:
That's it, right?

[00:02:57] Speaker 04:
Well, that's not the entire case.

[00:02:58] Speaker 05:
No, but that's your argument.

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So what's missing, according to you, is a sentence which says, I take it, in your view, what's missing is a sentence which says, ballots not received by 10 AM will not be counted.

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That's what's missing.

[00:03:18] Speaker 05:
Is that right?

[00:03:19] Speaker 04:
Or, well, I think a sentence, that would be one way, Your Honor, or that ballots must be, ballots, yes, ballots that are not there by August 5 at 10 a.m.

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will not be counted.

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Now, you agree, I take it, that we review the board's decision about this notice for abusive discretion, correct?

[00:03:46] Speaker 05:
Correct.

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We're not reviewing it de novo.

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Correct.

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So how do you make an argument that the board abused its discretion by concluding that this was not unclear?

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Well, we are arguing that the board's case law on disenfranchisement, the Garda case and the Wolverine Dispatch case,

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are implicated by the facts here and that the board throughout this entire process, despite the fact that we have pressed this issue over and over again, the board has not so much as even

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mentioned Garda or Wolverine until the board's brief in a footnote.

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And we contend that those cases are applicable and that the board had a responsibility to discuss those cases and to say whether or not they are applicable.

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What were the facts of Wolverine?

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Your Honor.

[00:05:04] Speaker 05:
Here, I'll help you out.

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The employees there were deprived of an opportunity to vote because the voting booths were closed at a time when they were supposed to be open.

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So in that case, they were actually deprived of a right to vote.

[00:05:24] Speaker 04:
But Your Honor, I understand that.

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In a lot of the cases that have been before the board,

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Garda, Wolverine, involved that.

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But the board has never said – has never said that an election irregularity under their two-part test has to include the early – the early closing of the polls.

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And in fact, in a situation like this, where the ballots were in the mail, where employees

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mail their ballots pursuant to their understanding of the instruction, you could actually analogize and say that the board closed the polls early here.

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But the fact of the matter is, is that those cases do not say this is the only situation

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where these cases apply.

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And the board, in any event, did not say that.

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They never, in any of their decision-making throughout this case, so much as mentioned Garda or mentioned Wolverine.

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Okay, if we thought that that defect

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was not fatal because of the proposition that many of our cases say that although an agency has to explain away its precedent, it doesn't really have to do that if the case is obviously distinguishable.

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If I thought that that applied, then is there anything left of your case?

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Does your whole case turn on that, in other words?

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Our whole case does not turn on that.

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In this case, we believe the board abused its discretion in a couple of other ways, Your Honor.

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well, at least one other way besides not paying any attention whatsoever, not explaining itself with respect to GARDA.

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We believe that the board's decision here was arbitrary and capricious because of the board's failure to follow its decision in MCS consultants.

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Now, in that case, that case is almost on all fours.

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with this case.

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And yet, in that case, the board decided to count mail ballots that came in after the ballot count, and in this case, they did not.

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And the only explanation that the board gives, and this case was cited in the classic valet case in a footnote,

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The board does say that that case is an unreported case, but agencies are required to act consistently.

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But they also say there's no evidence here that the board had any responsibility for what happened.

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On the one hand, you complain that the board hasn't addressed

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Garner, whatever that case is, and the other case.

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But here the board directly addressed this case, and it said it's inconsistent with the board precedent.

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In the footnote you're talking about, in the classic parking footnote, it says that the case you're relying on wasn't, quote, consistent

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with the board's established rule regarding mail outs.

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So it did consider it, and it said it's wrong.

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Well, it didn't overrule it.

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And it did, in fact, make that decision in that case, which was inconsistent.

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But we do also have another argument in response to the question that you asked here.

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The board set a 14 day period here for the ballots to go out from the region.

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uh, to arrive at the voters homes and then to get back to the region.

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I think it was July 22 August for 14 day period.

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Yet the board itself and its internal procedures

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believes that it could take up to seven days for the ballots to arrive after they are mailed by the board.

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And logically, another seven days perhaps to get back to the voter.

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So in essence, what the board is doing, and the board has the responsibility to establish proper procedures for its voting,

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What the board is doing here is establishing a procedure that essentially has built in disenfranchisement, because if in fact under the board's view a ballot takes seven days to get to a voter and seven days to get back, if a voter is at work on the day that that ballot arrives at that voter's home,

[00:11:06] Speaker 04:
or if that voter decides I want to take a day or two or three to consider my vote, under the board's own view, that voter

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could be disenfranchised.

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Their vote could come in after the ballots are counted.

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And we contend that the board abused its discretion and violated its requirement to set up proper procedures for voting.

[00:11:46] Speaker 07:
You dismissed the board's suggestion in its brief that you could have set up a buffer, period.

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Your response that it's important?

[00:11:59] Speaker 04:
Well, it's the board's responsibility to set up to have proper procedures.

[00:12:06] Speaker 05:
But didn't the company agree to this procedure?

[00:12:10] Speaker 05:
Well.

[00:12:11] Speaker 05:
You agreed to it.

[00:12:12] Speaker 05:
It was proposed.

[00:12:12] Speaker 05:
And your client signed off on this.

[00:12:17] Speaker 04:
That is correct.

[00:12:20] Speaker 04:
We did agree to it.

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We proposed different language.

[00:12:24] Speaker 05:
You agreed to this notice and to the procedure.

[00:12:28] Speaker 04:
Well, we agreed to the notice after the regional director rejected the language that we suggested be in there.

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And the fact of the matter is that under board procedure you don't really have any

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any significant way of challenging when the board says this is what the language is gonna be.

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The regional director said the language is standard language.

[00:12:57] Speaker 05:
So I don't even see, oh, I'm sorry.

[00:13:01] Speaker 05:
I don't even see the difference between your proposed one and the board's one.

[00:13:04] Speaker 05:
I mean, yeah, the language is different, but yours says to be valid, the ballot must be received in the regional office by the close of business on Monday.

[00:13:14] Speaker 05:
How's that materially different?

[00:13:18] Speaker 04:
We believe that the addition of the phraseology in the board's language so that it will be received in the English language

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that that points out a purpose as opposed to a mandate and so that that language as a result said to employees that if they did not get their ballot that they needed to get their ballot

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in the mail so that it would be received, not so that it must be received.

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So we do think that there is a difference between the language that we suggested and the language that the board

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required us to have in the language.

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The board has the right, the regional director is given an awful lot of discretion to set the terms of an election.

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And like I said, there really isn't much that the

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that an employer or a union can do to challenge that.

[00:14:36] Speaker 07:
So, yes.

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I file some objections.

[00:14:39] Speaker 04:
Which is what?

[00:14:40] Speaker 07:
And preserve the issue.

[00:14:44] Speaker 07:
Well, we... Let me say, this is not the only scheme where regulations call for

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an individual to return something by a certain date.

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And even though the person says, in good faith, I was relying on the postal service to get it there in five days, it's not good.

[00:15:13] Speaker 07:
I've always had trouble with these proposals, but they've been upheld.

[00:15:18] Speaker 07:
Trouble in the sense of fairness, but here, where

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you agreed to use this mail-in procedure, and you did have a chance to suggest other language, and the board says you could have asked for this buffer, at least in its brief,

[00:15:43] Speaker 04:
Well, Your Honor, it had been my experience with the board in previous mail ballot elections that and we've seen they want to get these over with very quickly.

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So we could have asked for a buffer.

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You're correct, but we would not have been given the buffer.

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And again, the bottom line is the board

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It's the board's responsibility to make sure these elections are held properly.

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And here, knowing about this 14-day period, there's a built-in possibility of disenfranchisement.

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And there's a real concern here.

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about whether or not the result here is the will of the majority because of this improper procedure that the board employed here.

[00:16:42] Speaker 07:
All right, let us hear from the board.

[00:16:43] Speaker 04:
Thank you.

[00:16:59] Speaker 00:
May it please the court?

[00:17:01] Speaker 00:
I'm Kyle DeCant on behalf of the National Labor Relations Board.

[00:17:05] Speaker 00:
The board acted within its broad discretion in overruling the company's objection that it should count seven late ballots that were received only after the official election account.

[00:17:16] Speaker 05:
Do you know what those seven ballots show?

[00:17:20] Speaker 05:
Would they have changed the election?

[00:17:23] Speaker 00:
Under the election as it currently stands, we're... Just yes or no?

[00:17:28] Speaker 05:
Did you... Did the board open them?

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Did we know that there was a majority of votes, enough votes to have changed the results of the election?

[00:17:35] Speaker 00:
The ballots haven't been counted, Your Honor.

[00:17:37] Speaker 05:
Well... They've been opened.

[00:17:39] Speaker 05:
Is there a reason... No, they haven't been opened, Your Honor.

[00:17:42] Speaker 05:
Why?

[00:17:42] Speaker 05:
I mean, suppose they were all for the union.

[00:17:45] Speaker 00:
We wouldn't be here today, right?

[00:17:47] Speaker 00:
That's correct, Your Honor.

[00:17:49] Speaker 05:
Is there something I'm missing about... Is there some...

[00:17:52] Speaker 05:
sort of policy reason why the board doesn't open them to decide whether this is all even worth it?

[00:18:00] Speaker 00:
Your Honor, the board has decided to weigh the need for employee choice with the need for fidelity.

[00:18:05] Speaker 05:
No, no, that's not my question.

[00:18:07] Speaker 05:
My question is that, okay, so they say, look, you should have, the board should have counted these seven ballots, right?

[00:18:14] Speaker 05:
My only question is, why not open them up and find out if they would have been outcome-determinant?

[00:18:22] Speaker 05:
If they wouldn't have been outcome-determinative, then the board wouldn't have had to waste its time, the employer wouldn't have had to waste its time and spend more money on its capable lawyer to bring this case, and we wouldn't have had to address this case.

[00:18:37] Speaker 05:
So my question is, is there something about

[00:18:40] Speaker 05:
board policy that makes it unwise to open those ballots?

[00:18:44] Speaker 05:
That's my only question.

[00:18:46] Speaker 00:
Yes, Your Honor.

[00:18:47] Speaker 00:
There is something unwise about it.

[00:18:47] Speaker 00:
What is it?

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And that is that those ballots could change the election after 76% of the ballots in this case had already come in before the count.

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And that could possibly change the election after the parties begin bargaining or after objections have already been filed.

[00:19:02] Speaker 00:
And the board here has decided to weigh the need for employee choice with the need for finality of elections.

[00:19:08] Speaker 05:
You don't want to answer my question, do you?

[00:19:11] Speaker 00:
It's all right.

[00:19:12] Speaker 07:
Well, I thought one answer was that the way the board has set these elections up, you can have bargaining start immediately.

[00:19:22] Speaker 06:
That wasn't my question.

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I know it wasn't.

[00:19:24] Speaker 07:
But they're saying that that would be a reason for almost new trash.

[00:19:30] Speaker 02:
What you said was a slippery slope.

[00:19:32] Speaker 02:
If you adopt this approach,

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be ballots that come in a week later?

[00:19:36] Speaker 02:
No, no, that wasn't my question.

[00:19:38] Speaker 02:
It goes on and on and on.

[00:19:39] Speaker 02:
The court says is it cut, and we're done.

[00:19:41] Speaker 02:
I wasn't asking my question.

[00:19:43] Speaker 02:
All right, let Judge Taylor ask his question again.

[00:19:46] Speaker 05:
I wasn't arguing with you about the board's policy.

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I totally understand the board's policy, that you need finality.

[00:19:54] Speaker 05:
And you could probably tell from my questions to the petitioner that I don't see how this could be an abuse of discretion.

[00:20:05] Speaker 05:
I don't even see anything unclear about the notice.

[00:20:07] Speaker 05:
My only question is, if we knew that those seven ballots wouldn't change the election, we wouldn't have to go through all this.

[00:20:19] Speaker 05:
Just those seven ballots.

[00:20:21] Speaker 05:
Suppose they were all for the union.

[00:20:24] Speaker 05:
Well, then the employer wouldn't have to waste his time bringing this case.

[00:20:29] Speaker 05:
And the board wouldn't have to waste its time deciding it.

[00:20:32] Speaker 05:
And we wouldn't have to spend our time hearing it.

[00:20:34] Speaker 05:
That's my only question.

[00:20:35] Speaker 07:
Well, if they were all for the employer, then we'd have to hear the case.

[00:20:40] Speaker 07:
Proceed the way the board anticipates.

[00:20:42] Speaker 05:
Well, then we'd have to hear the case to decide whether the board had improperly refused to.

[00:20:48] Speaker 07:
I'd like to know what your answer, though, is to the concern about setting up an election that

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or approving an election procedure where the board itself acknowledges that mail receipt takes seven days and even has in its notice that if you didn't get the ballot by a certain date, call us.

[00:21:15] Speaker 00:
That's true, Your Honor, but here the terms of the election agreement were actually established by the parties.

[00:21:20] Speaker 07:
No, no, no.

[00:21:22] Speaker 07:
Totally true.

[00:21:24] Speaker 07:
And suppose they came up with something ridiculous.

[00:21:28] Speaker 07:
The board wouldn't be, or the regional director wouldn't be obligated to adopt it.

[00:21:34] Speaker 07:
All right?

[00:21:35] Speaker 07:
That's the point.

[00:21:37] Speaker 07:
If you set up an impossible system by approving what the parties have proposed, isn't that troubling?

[00:21:48] Speaker 00:
Your Honor, in the email correspondence between the board region and the company on this matter, the board actually noticed this discrepancy and offered to set out the original correct notice of election to employees.

[00:22:01] Speaker 00:
And in that case, the company didn't take the board up on its offer.

[00:22:05] Speaker 00:
And so as such, the dates that the parties had agreed to had stayed in place.

[00:22:09] Speaker 00:
And under the terms of the agreement, they could have bargained to have the count two or three days later than the date by which the ballots were due, but the company chose not to do so.

[00:22:20] Speaker 05:
Let me pursue Judge Rogers' question just a little bit.

[00:22:23] Speaker 05:
Just as an abstract matter, wouldn't it make more sense for the board to have a policy saying it all turns on post-mark date?

[00:22:30] Speaker 05:
Wouldn't it be the best way to ensure the integrity of the election and make sure everybody gets to vote?

[00:22:37] Speaker 00:
No, Your Honor.

[00:22:38] Speaker 00:
Under that proposal by the company, the board's decided in its broad discretion that allowing a proposal like that could allow ballots to change the result of an election weeks or even months after the election has been.

[00:22:50] Speaker 05:
Because a postmarked ballot might come in three months later?

[00:22:54] Speaker 00:
Yes.

[00:22:55] Speaker 00:
And as such, the partners could.

[00:22:56] Speaker 05:
Does that happen?

[00:22:57] Speaker 05:
I mean, I don't know.

[00:22:58] Speaker 05:
I mean, I don't know that that happens.

[00:23:04] Speaker 07:
Has the board set up any sort of email system

[00:23:07] Speaker 07:
or electronic voting?

[00:23:10] Speaker 00:
Your Honor, I believe that... You'd get hacked by someone.

[00:23:12] Speaker 05:
You wouldn't want to do that.

[00:23:14] Speaker 00:
The Russians would hack it, and then where would we be, right?

[00:23:17] Speaker 00:
If I'm correct, there's actually a waiver that prohibits the board from doing that, but I'm not entirely confident on that point.

[00:23:28] Speaker 06:
All right.

[00:23:28] Speaker 00:
But here the board's decision is a very clear application of classic valet.

[00:23:33] Speaker 00:
And in that case, the board held that 10 ballots that were received after the count would not be counted even though they were postmarked before the date of the count.

[00:23:42] Speaker 00:
And the board there cited precedent that stated that ballots could be counted if they arrived after the due date as long as they did not arrive after the count.

[00:23:50] Speaker 07:
So if you're an employee and you want to be sure the board gets your ballot and it's a mail-in,

[00:23:58] Speaker 07:
Can you just hand carry it to the regional office?

[00:24:05] Speaker 00:
I think that would depend on the terms of the notice of election.

[00:24:08] Speaker 07:
Well, this notice.

[00:24:09] Speaker 00:
Your Honor, I'm honestly not sure.

[00:24:16] Speaker 00:
That would depend on the agreement of the parties.

[00:24:18] Speaker 07:
Well, what I'm looking at is voters must return their mail ballots so that they will be received in the regional O-1 office by close of business Monday.

[00:24:29] Speaker 07:
So I read that to mean that, well, if you hired somebody to hand deliver this, you'd be sure.

[00:24:38] Speaker 07:
But that's not what the board is contemplating by the mail-in system.

[00:24:42] Speaker 00:
That may be one interpretation, but the regional director did not reach that issue in their report on the objections.

[00:24:48] Speaker 07:
So what's the theory behind mail-in, where you have this uncertainty that's out of the control of either the board or the

[00:24:58] Speaker 07:
the employee voting.

[00:25:02] Speaker 00:
The board decided that a mail-in system is the best way that in this case employees who don't have a single work site but are spread across multiple areas can get their votes in on time.

[00:25:12] Speaker 00:
And courts have upheld the board's finding that near vagaries in the mail ballot system aren't enough to overturn an election when the voice of the employees is heard.

[00:25:25] Speaker 07:
Absent

[00:25:27] Speaker 07:
a blizzard or something else like that.

[00:25:32] Speaker 00:
And certainly there may be situations like that, but here they extended it till 11 a.m.

[00:25:36] Speaker 07:
because the mail hadn't arrived by 10.

[00:25:39] Speaker 00:
And your honor, that was according to what the parties had agreed to that morning.

[00:25:45] Speaker 00:
And so, against the very clear precedent that the board has cited, the company cites only one case, MCS Consulting, as the single case where the board has decided to count ballots that were received after the count.

[00:25:57] Speaker 07:
However... So is it fair to take the board at its word that it views mail-in requiring you to put your ballot in the mail at least seven days before the date it's due to be received?

[00:26:15] Speaker 00:
by the board or by the employee, Your Honor?

[00:26:17] Speaker 00:
I'm not sure if I follow.

[00:26:20] Speaker 07:
If the board's procedure is based on the premise that it takes seven days for a ballot to be received by an employee when it's mailed by the region, then is the board in any way a stopped

[00:26:45] Speaker 00:
The board's policy wasn't to give it seven days, but to allow seven days in the event that an employee had not yet received their ballot.

[00:26:53] Speaker 00:
And here, that compressed schedule was determined by the schedule that the parties had agreed to, setting up for the ballots to be returned by August 4th and counted on August 5th.

[00:27:04] Speaker 07:
But you must admit that, not you must not admit, but.

[00:27:10] Speaker 07:
that the timing here, except for one of the ballots, is troubling.

[00:27:14] Speaker 07:
I mean, the ballot that was mailed the day before, but other ballots were mailed, what, five days in advance?

[00:27:23] Speaker 00:
That might have been the case, Your Honor, but here over 75% of the ballots were received on time.

[00:27:29] Speaker 07:
And that's good enough.

[00:27:30] Speaker 00:
Well, even in Antelope Valley, this Court found that it's unreasonable to question whether all employees were franchised enough to overturn an election

[00:27:39] Speaker 00:
and there only 66% of the ballots came in on time.

[00:27:42] Speaker 00:
Here, over 75% of the ballots came on time.

[00:27:46] Speaker 00:
And so that's exactly why MCS isn't consistent with the board's normal practice, where while the board said that it would allow those late ballots to be applied in light of the unique circumstance of that case, it didn't specify what those unique circumstances were.

[00:28:01] Speaker 00:
However, the case is certainly exceptional in the fact that there

[00:28:05] Speaker 00:
only 33% of the ballots arrived before the date of the count and the majority arrived after the count, which is the reason why that case wasn't reported because the board had decided that its normal policy wouldn't simply be equitable in a situation where only 33% had had their votes heard before the date of the count.

[00:28:24] Speaker 07:
What's the cutoff?

[00:28:26] Speaker 00:
The board hasn't specified that, Your Honor, yet.

[00:28:29] Speaker 00:
And there may be a case in the future where the board has determined to.

[00:28:32] Speaker 00:
But this case involved a very straightforward application of the normal precedent, which would be that you allow ballots before the count, but not after.

[00:28:44] Speaker 05:
Wait a minute.

[00:28:46] Speaker 05:
One of the arguments that petitioner makes in this brief is that the board failed to consider what it calls its line of disenfranchisement cases like Garda and Wolverine.

[00:28:59] Speaker 05:
Did you respond to that in your brief?

[00:29:03] Speaker 00:
Yes, Your Honor.

[00:29:04] Speaker 00:
We noted that those cases involved where there's an irregularity at the polls.

[00:29:08] Speaker 00:
So in Garda, there was an irregularity where the voting session closed before the agreed upon time.

[00:29:16] Speaker 00:
And in Wolverine Dispatch, there was a mid-session closing of the polls that the parties had not agreed to.

[00:29:21] Speaker 00:
And here, there is no irregularity because the election proceeded exactly according to the terms of the stipulated agreement and the notice of election.

[00:29:30] Speaker 00:
And so under that circumstance, the company's only argument therefore seems to be its misreading of the notice of election to which it had agreed and the stipulated agreement to which it had also signed.

[00:29:42] Speaker 00:
However, this language reasonably communicates that voters must mail their ballots so that they will be received by August 4th.

[00:29:50] Speaker 00:
Being received by August 4th is something that must happen, and the following sentence clears up any ambiguity when it states that the ballots will be counted on August 5th.

[00:29:59] Speaker 00:
The company's proposal would be that a ballot that comes in weeks or even months after the election could somehow upturn the whole collective bargaining process.

[00:30:09] Speaker 00:
And the board, in its discretion, has decided to properly balance the need for employee choice with the need to have finality in elections in order to preserve that.

[00:30:21] Speaker 07:
Anything further?

[00:30:22] Speaker 00:
No.

[00:30:23] Speaker 07:
Thank you.

[00:30:24] Speaker 00:
Thank you, Your Honor.

[00:30:25] Speaker 00:
The board respectfully requests that the court enforce the board's order.

[00:30:32] Speaker 07:
Council for petition.

[00:30:40] Speaker 04:
The board just to address some of the points that were raised.

[00:30:46] Speaker 04:
Mail ballots must be mailed to the board.

[00:30:52] Speaker 04:
They cannot be hand-delivered.

[00:30:54] Speaker 04:
I suppose if there was language in the stipulation, I've never seen it, but it's a mail ballot election.

[00:31:05] Speaker 04:
In our case,

[00:31:09] Speaker 04:
Seven ballots arrived two days after the vote count.

[00:31:14] Speaker 04:
So I think.

[00:31:15] Speaker 07:
I thought it was six.

[00:31:19] Speaker 07:
All seven?

[00:31:20] Speaker 04:
All seven did, yes.

[00:31:23] Speaker 04:
The one that you may be referring to is the one that was mailed from Boston on August 4.

[00:31:30] Speaker 04:
But there were five ballots that were mailed from 50 miles away that came in that were mailed

[00:31:38] Speaker 04:
five days in advance, and then another ballot that was mailed from 25 miles away four days in advance.

[00:31:48] Speaker 04:
But we're not talking about ballots coming in months and years, etc.

[00:31:53] Speaker 04:
Afterwards, we're talking about ballots that came in two days after the vote count.

[00:32:02] Speaker 04:
And it's interesting to note that the board, in connection with its objections procedures, has done something that very simply could have been applied to its mail ballot procedure, which is look at the postmark on the ballots and add a hard cutoff.

[00:32:30] Speaker 04:
with objections which keep an election going on and on and interfere with the finality of the appeal.

[00:32:39] Speaker 05:
How do we, how do we, given our standard review, even if we think you might be right about that, how do we, how do we reverse the board on that given that this is highly discretionary?

[00:32:51] Speaker 05:
I mean, the case law is really clear that running elections is something we defer completely to the board on.

[00:33:01] Speaker 05:
It's pretty well taken.

[00:33:03] Speaker 04:
Yes, Your Honor.

[00:33:04] Speaker 04:
And I'm not suggesting that the court issue an order that from here on in, the board use a postmark rule.

[00:33:14] Speaker 04:
But I think the fact that they have come to the conclusion with respect to objections, that they look at the postmark on the objections and the fact that they will accept objections no matter when they come in,

[00:33:30] Speaker 04:
as a document that can upend and keep an election from being final, in conjunction with this seven-day situation that they have acknowledged

[00:33:44] Speaker 04:
On page 32 of 39 of the board's brief and their addendum to their brief, anything less than a week doesn't give the Postal Service a full chance to deliver the ballot.

[00:34:02] Speaker 04:
So indeed, and I know this individual at the board who wrote this, he's been there a long time.

[00:34:11] Speaker 04:
And that's what that went to, not the issue of having people contact them.

[00:34:20] Speaker 04:
The gravamen of that is that they're admitting that an election that they've set up here

[00:34:27] Speaker 04:
is almost certain to disenfranchise voters.

[00:34:34] Speaker 04:
And that runs counter to the board's requirement that they establish proper procedures for the holding of an election.

[00:34:47] Speaker 05:
I just want to ask you the same question I asked Board Council.

[00:34:52] Speaker 05:
Did you ask the board?

[00:34:54] Speaker 05:
to open these ballots to see if it would have made any difference in the election?

[00:34:57] Speaker 04:
We did, Your Honor.

[00:34:59] Speaker 05:
You did do that, right?

[00:35:00] Speaker 04:
Yes.

[00:35:01] Speaker 05:
And what did they say?

[00:35:03] Speaker 05:
They said no.

[00:35:04] Speaker 05:
I mean, I assume if you had found out it was all votes for the board, for the union, you wouldn't have wasted your time with this, right?

[00:35:11] Speaker 04:
That's correct.

[00:35:12] Speaker 05:
So what's the reason for the board?

[00:35:14] Speaker 05:
Do you do this kind of work regularly?

[00:35:15] Speaker 04:
Yes, I do.

[00:35:17] Speaker 05:
Does the board never open up their ballots?

[00:35:21] Speaker 05:
Is there something I'm missing?

[00:35:24] Speaker 05:
Do you always, in cases like this, do counsel for either the company or the union when you have five or six or ten contested ballots, do you usually say, look, let's open them up and see if they would have been outcome-determinant?

[00:35:40] Speaker 04:
Well, certainly the board has a challenge procedure where... No, I'm not talking about that.

[00:35:45] Speaker 04:
Okay.

[00:35:45] Speaker 05:
I'm just asking from your point of view.

[00:35:46] Speaker 05:
You said you asked them, right?

[00:35:48] Speaker 05:
Because I assume you wanted to know whether it would have made a difference.

[00:35:51] Speaker 05:
What was the reason they gave for not looking to see that?

[00:35:54] Speaker 02:
Well, I mean, your first answer, Judge Taylor, is no, the board does not routinely open up ballots.

[00:35:58] Speaker 02:
But why?

[00:35:59] Speaker 02:
That's just not their problem.

[00:36:01] Speaker 04:
Well, in circumstances like this, in a circumstance like this.

[00:36:04] Speaker 02:
The board routinely, outside of the context of a challenge, does not open ballots, because it would be like Pandora's Box opening up.

[00:36:10] Speaker 02:
That's the reason.

[00:36:11] Speaker 05:
It may be wrong.

[00:36:12] Speaker 05:
He challenged these ballots.

[00:36:13] Speaker 05:
He said these ballots should be counted, right?

[00:36:16] Speaker 05:
He wanted these seven ballots counted.

[00:36:17] Speaker 05:
That's your whole case.

[00:36:18] Speaker 04:
Yes.

[00:36:19] Speaker 05:
And I assume you said to the board, before we go through all this and spend a lot of money, why don't we find out if they would have been outcome-determinant, right?

[00:36:26] Speaker 04:
Yes.

[00:36:29] Speaker 02:
You wanted it with the count, or you made this request after the count?

[00:36:33] Speaker 02:
Wait, I'm confused.

[00:36:34] Speaker 02:
Yes, after the count.

[00:36:36] Speaker 04:
After the count.

[00:36:37] Speaker 04:
Right.

[00:36:37] Speaker 04:
We found out from the region, actually from Mr. Redboard, that these seven ballots had come in.

[00:36:45] Speaker 04:
So I made a request.

[00:36:50] Speaker 02:
Because it's not part of the challenge.

[00:36:51] Speaker 02:
It's not what we would typically understand.

[00:36:54] Speaker 04:
That's right.

[00:36:56] Speaker 04:
That's correct, because that would involve ballots that arrived at the time of the con.

[00:37:03] Speaker 04:
You would challenge and say, well, that person who voted as a supervisor, well, that person was no longer employed.

[00:37:09] Speaker 02:
So there was nothing in the process that anticipated it.

[00:37:12] Speaker 02:
Yeah, nothing wrong with you asking, but there was certainly no process that anticipated it, right?

[00:37:16] Speaker 02:
That's correct.

[00:37:17] Speaker 02:
But why did you ask?

[00:37:20] Speaker 04:
Because we felt that these voters ought to have their votes counted.

[00:37:28] Speaker 04:
We have no idea how they voted.

[00:37:29] Speaker 05:
If you had found out that they were all for the union, what would you have done?

[00:37:36] Speaker 05:
Nothing, right?

[00:37:38] Speaker 05:
I mean, this isn't part of the case.

[00:37:40] Speaker 05:
I just don't understand why the board doesn't move the ballots.

[00:37:42] Speaker 07:
Who is the person who told you that these seven ballots had come in?

[00:37:46] Speaker 04:
Robert Redboard.

[00:37:47] Speaker 07:
I mean, is that a board employee?

[00:37:49] Speaker 04:
Yes, he's the individual.

[00:37:51] Speaker 04:
He's the head of elections.

[00:37:52] Speaker 07:
He's the person who's been there forever.

[00:37:54] Speaker 04:
Yes.

[00:37:54] Speaker 07:
So you probably know him.

[00:37:55] Speaker 07:
So he told you.

[00:37:57] Speaker 07:
He created the whole problem.

[00:38:01] Speaker 04:
Well, he said it's our responsibility to be transparent here.

[00:38:07] Speaker 04:
I'm going to tell you when he told me what date they were postmarked, etc.

[00:38:13] Speaker 07:
Okay.

[00:38:13] Speaker 07:
All right.

[00:38:15] Speaker 07:
We'll take the case under advice.

[00:38:16] Speaker 07:
Thank you very much.