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Case number 15-1198 at L. Rusko, Tug, and Barge, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Goran for the petitioner, Mr. Hickson for the respondent, and Mr. Kappas for the intervener.

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Good morning.

[00:00:37] Speaker 06:
May it please the court, Michael Garon, appearing for the petitioner, Briscoe Tuggenbarge.

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I'd like to reserve two minutes for rebuttal.

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There are two major issues in this case.

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The first is whether the board's finding that Briscoe's mates are not statutory supervisors based on the record that was made in 2001 is entitled to enforcement.

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We contend that it is not, and that the ULP charge alleging an unlawful refusal to bargain should be dismissed.

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The second issue arises only if this court disagrees with us on the first issue.

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We contend that the board acted contrary to law when it refused to permit BRUSCO to present evidence of changes to the status and duties of mates caused by evolving and changing Coast Guard regulations and other circumstances which arose commencing in 2010 and continuing through the time of the unfair labor practice charge in 2015.

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On this issue, we seek a remand of this case for an unfair labor practice hearing in which this additional evidence can be submitted.

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Well, since you raised that question, I'm going to just ask you, the intervener's brief and footnote

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which you didn't respond to, says they say it doesn't make any difference what happened in 2010.

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The only question is whether these mates were supervisors at the time of the election in 1999.

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But that's the question.

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And that if anything changed since then, the proper remedy for you is if the mates have in fact become supervisors since then, that the proper remedy is a petition to clarify the bargaining unit.

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Your honor, I would agree with that if, in this case, the changes post-dated a final decision in the representation hearing.

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But the question is, what was the situation in 1999?

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That was the issue.

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The factual question was, were they supervisors then?

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It doesn't make any difference when the board ultimately decided that question, is that right?

[00:02:46] Speaker 06:
Well, Your Honor, I don't agree with that, because under this Court's assessment of the exceptions to the no relitigation rule, this Court has ruled that in the unfair labor practice hearing, additional evidence that's evolved since the certification can be brought up.

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And here we have 15 years of delay.

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But Mr. Gordy, that's additional evidence going to the facts at issue, which are the status of the unit at the time.

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Right.

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So that yes, the later evidence can be brought into a pending case, but the case is about, and the board made the determination about the unit as of a particular historical moment.

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That can't be shifted to a later moment.

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We don't have a finding or evidence or anything on the later moment.

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Your Honor, again, I would direct your attention to the Pace University case from this court in which Judge Rogers authored the opinion.

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And it states in that decision that where a new legal argument is based on after arising or after discovered facts, that can be raised in the defense to the unfair labor practice complaint.

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Really, in this case, it would really undercut the exception to the no relitigation rule that's been identified by this court to tell us that after 15 years, after all these changes in Coast Guard regulations, which really do impact the status of mates and the responsible direction that they afford to the crew people on the vessels, that that should just not be considered.

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It should just be swept under the rug.

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The intervener says there's a procedure for considering the stuff you move to modify the unit.

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on the grounds that they're no longer supervisors.

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You didn't answer this in your brief, right?

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You didn't say anything about it.

[00:04:34] Speaker 06:
Well, Your Honor.

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I assumed you were conceding it since you hadn't responded.

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No, Your Honor.

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Not true?

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No, we're not conceding that point, because again, at the time that we submitted this evidence, the representation hearing was ongoing.

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Why don't you just answer the question I asked you, which is, specifically, they say in their brief, the proper procedure is to move to modify the bargaining unit.

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And I would disagree with that, Your Honor.

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Yeah, I know you disagree with it, but why?

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Because at the time that we submitted the new evidence, there had not been a final decision in the representation case, and we had the right to ask the board to consider newly discovered evidence in the representation case.

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I would agree that if the representation case had been finally decided and there was no further appeal from that,

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that the proper approach might be a unit clarification.

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A unit clarification doesn't help us here because all it would mean is that the mates would leave the bargaining unit.

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We would still have the bargaining obligation.

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So to follow up on that footnote would basically be to deprive us of our defense, the exception to the no relitigation rule.

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So on the first issue about the 2001 record, this case, of course, was before the court in 2001.

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And the court remanded the matter.

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You were a lot younger then.

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Right.

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I remember that case.

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Yeah, that came off a good decision, Your Honor.

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Right.

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And the mates were a lot younger.

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Yes, they were.

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In fact, none of them were really working for the employer anymore.

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I'm the only one left.

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Is that it?

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Where is it?

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So Your Honor, the court remanded to the board for the board to explain its inconsistencies between its prior decisions regarding mates and the current decision.

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And it's our position that the board really hasn't done a very good job or a very convincing job of distinguishing its prior precedents.

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It comes up with two explanations.

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One explanation is that the prior precedents were pre-Oakwood cases.

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And two, the second explanation is that some of those prior cases involves larger crews than the current case.

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And we would submit that neither reason is compelling.

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It's not compelling to say simply that a case is older and that there has been a new case.

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The Oakwood decision didn't really change anything.

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It clarified the statute.

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And it's our position that the pre-2001 cases that the court was concerned with

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distinguishing have not been distinguished adequately and that because of that the current decision of the board is inadequately reasoned.

[00:07:10] Speaker 03:
Let me ask you a couple of questions though.

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The board's position basically is we're dealing most of the time with a four-member crew and everybody has a different title and everybody has a different job and it's always dangerous to rely on personal experience but if you're a crew on a

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sailing, everybody knows what to do.

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And when the captain's asleep, if anything out of the ordinary, you wake him up.

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It's not as though you have two captains.

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They don't make the same amount of money.

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Well, Your Honor, the evidence is that since this case was last before the court, the evolving nature of the business has led to the fact that most of the mates have the same licensure as the captain.

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But we're back at the time.

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I mean, we can't.

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You want to move this case forward.

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And I understand that.

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But I don't think you

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persuaded me at least that you don't have a remedy to the point you're making that the change in the Coast Guard licensure has made the mates, you know, sort of a different category of being than they used to be.

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And earlier when the board invited you to introduce additional evidence, you said no.

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And I know your explanation is, well, that was

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Back in 2006, we're talking about the Coast Guard in 2010.

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But the point is, you had thin evidence to counter that at the time, and you could have put more in.

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And the board said, well, you never gave us any precise examples.

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You made these broad statements.

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So isn't that what we're dealing with?

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And the board could reasonably say, we're not going to reopen this as though this is an entirely new case where everybody has changed roles.

[00:08:51] Speaker 06:
Well, again, Your Honor, I would ask you to look closely at the Pace University case.

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Because again, in that case, it says that newly discovered and new evidence can be considered in the unfair related facts.

[00:09:02] Speaker 01:
In Pace, isn't that about who was treated as an adjunct and whether the adjuncts were eligible but were treated properly at the time of the election that's under scrutiny?

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Not later arising facts or later occurring facts.

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It's later arising evidence about the initial time period, no?

[00:09:21] Speaker 06:
Well, Your Honor, I think the facts may have been that way in that case.

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But the description of the exception to the no relitigation rule, I think, is the important part to look at.

[00:09:30] Speaker 01:
I think not.

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And you know that as a lawyer that you're

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what they're talking about when they're talking about a later time.

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The evidence arises at a later time.

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The reason it's pertinent to the disputed issue is because it's about what actually happened at that earlier disputed time.

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I mean, it couldn't be otherwise, could it?

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Because then any time a bargaining unit was held to be legitimate and certified, then an employer could simply change its employment structure

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and challenge it on that ground.

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And that is a completely unworkable kind of system, right?

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You're looking at something as of a fixed period.

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But that's not what happened here, Your Honor.

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What happened here is that during a time period when the representation case was still ongoing,

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there were changes made to the regulatory climate that weren't instituted by brusco, in other words, this isn't a stratagem where some of the cases- No, I understand that, but the rule you're proposing, it appears, would allow later events that were relevant to be considered, and that-

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I just don't see how that would be workable.

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Whoever initiates those later changes.

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There's a different procedure for that.

[00:10:40] Speaker 06:
Well, Your Honor, again, if you look at the exception of the no relitigation rule, it says that, for instance, changes to the law.

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So there have been cases where, at the time of a certification, the law was a certain way.

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By the time it gets to the unfair labor practice procedure, the Supreme Court's come out with a new decision or there's a new appellate decision.

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And the courts applied that new legal regimen to the particular case, even though that didn't exist when the representation hearing was held.

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So really, it's very similar here, because the Coast Guard is basically saying that mates need to be trained in leadership and direction of their crews.

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And because of that, BRUSCO changed

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to some degree, the way they deal with their mates to make them responsible for that direction.

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So really, it's a changing regulatory climate that was completely outside of my client's control, which caused the change in the status and duty of the mates.

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And also, based on nothing within our control, is the fact that this case has taken 15 years to adjudicate and remand from this court.

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It took between 14 years from 2001

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the 2015 to get a final decision on this case.

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And so I think if you look at the special circumstances prong.

[00:11:50] Speaker 01:
That sounds quite understandably extremely frustrating.

[00:11:53] Speaker 06:
It is.

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And Your Honor, when you look at the special circumstances prong of the test, I would submit to you there's very little case law as to what special circumstances are in this context.

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But I would submit this is a special circumstance where we should be permitted to bring this evidence to the attention of the fact-finder, not in a unit clarification petition, which

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means that we still have to bargain with the union, but in an attack on the certification.

[00:12:17] Speaker 03:
I understand.

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You haven't had to do that all these years.

[00:12:20] Speaker 03:
All right.

[00:12:20] Speaker 03:
So why don't we hear from the board?

[00:12:22] Speaker 06:
Thank you, Your Honor.

[00:12:33] Speaker 02:
Good morning.

[00:12:34] Speaker 02:
Good morning, Your Honors.

[00:12:34] Speaker 02:
May it please the Court, Michael Hickson, for the NLRB.

[00:12:37] Speaker 02:
The Board here reasonably found that the company failed to carry its burden of proving that its mates are statutory supervisors under Section 211 of the Act.

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As the Court knows, there are two types of Section 211 authority at issue in this case, and those are assignment and responsible direction.

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As for assignment, the company failed to carry its burden because either the duties that it relies upon do not constitute statutory assignment or they do not require the use of independent judgment or both.

[00:13:14] Speaker 02:
Most of the duties that the company cites as the Mates purported Section 211 assignment authority amount to nothing more than the Mates simply giving the deckhands ad hoc instructions to perform discrete tasks, or perhaps choosing the order in which the deckhands perform discrete tasks within their overall assignment.

[00:13:36] Speaker 02:
And under the board's Oakwood standards, which the company does not challenge, that is not

[00:13:42] Speaker 02:
section 211 assignment.

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The deckhand's overall duties, like participating in making up a tow or docking or assisting in changing the length of a tow line, are pre-assigned.

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They have those duties from the moment that they are assigned by the port captain to a crew

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in the deckhand position.

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So they're charged with fulfilling those duties from the moment that, well, before the moment that they step onto the boat.

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And so when the mate, in a given occasion, instructs his deckhand to go over there and to place the lines or where to place them, that is simply ad hoc instruction to perform a discrete task in that assignment.

[00:14:22] Speaker 01:
And I know you did a little of this in your brief, but can you help us by distinguishing the cases on which Fresco relies

[00:14:28] Speaker 01:
local 28 and Bernhardt brothers where the board did treat the equivalent of maids and supervisors.

[00:14:37] Speaker 02:
Certainly, Your Honor.

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In those two cases, the board found that the maids at issue responsibly directed other members of the crew.

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Those are distinguishable on the facts and they're also eclipsed by a change in the law.

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The way

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primarily that they're distinguishable on the facts is that, as the board reasonably found here, that in those cases the mates oversaw meaningfully larger crews.

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So, for example, the deckhands are really the most pertinent point here.

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In Local 28 and Bernhardt Brothers, those crews had four decans per crew, whereas here, the company, Brasco, only has normally one decan.

[00:15:21] Speaker 01:
Why does that make a difference?

[00:15:22] Speaker 02:
It matters, Your Honor, because when the mate oversees a larger crew, he exercises a greater degree of discretion in determining who will perform a given task.

[00:15:35] Speaker 01:
Why isn't it still the same kind of ad hoc

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you know, reactive instruction on discrete tasks.

[00:15:42] Speaker 01:
It's not a responsibly direct anymore, so then.

[00:15:44] Speaker 01:
Well, Your Honor.

[00:15:46] Speaker 01:
Or it is, and so is the mate's duty in this case.

[00:15:50] Speaker 02:
No, Your Honor.

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So the thing is that the, Your Honor, the ad hoc, the question of ad hoc and discrete tasks, that goes to whether it constitutes assignment authority.

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That's to be distinguished as the board made clear in Oakwood from direction authority.

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So an ad hoc instruction to perform a discrete task

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may not amount to assignment under 211, but may amount to direction under 211.

[00:16:12] Speaker 02:
But that direction, as this court has agreed in cases like 735, Putnam Pike, and last month's decision in Allied Aviation, that direction does not amount to supervisory authority unless it both requires the use of independent judgment and also is responsible.

[00:16:31] Speaker 01:
And is there evidence of independent judgment and responsibility in those cases that's missing here?

[00:16:40] Speaker 02:
Well, Your Honor, I don't recall the analysis on independent judgment, frankly, being very detailed or thorough in those cases.

[00:16:49] Speaker 02:
But the change in the law in Oakwood, the board revised the interpretation of responsibility.

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And what it found is that in order for direction to be responsible within the meaning of Section 211,

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The putative supervisor must face the prospect of adverse consequences based on the poor job performance of the directed employee in the directed tasks.

[00:17:15] Speaker 01:
Do we apply a new board interpretation that the board arrived at after the events in question to conduct that occurred in the earlier time?

[00:17:28] Speaker 01:
I know that Roscoe has not disputed that, but I'm a little bit surprised about that.

[00:17:32] Speaker 02:
Well, Your Honor, first, as you point out, Brasco hasn't disputed that.

[00:17:35] Speaker 02:
But moreover, when the board remanded the second time to the regional director, that was the day after Oakwood had been issued, the Oakwood trilogy.

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And the board instructed the regional director to take further appropriate action, including reopening the record, if appropriate.

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The regional director at that time, in light of Oakwood,

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Issued a show cause notice and invited the parties the union and the company to show cause why the hearing should be reopened and Neither party took the RD up on that offer Your honor, let's see, where should I turn next I guess in terms of responsible direction the company, you know in its brief remarkably it fails to say something about the later evidence subsequent evidence

[00:18:23] Speaker 02:
Certainly, Your Honor.

[00:18:24] Speaker 02:
Well, the board acted within its broad discretion in the rulings that it made concerning the company's belated assertions of changed circumstances.

[00:18:33] Speaker 04:
Am I wrong when I ask you, you didn't make the same point that the intervener makes?

[00:18:41] Speaker 02:
any concerning unit clarification you know or did you did i miss it you're right and i think it may get the board didn't address address that point in in its decision that the point they made was it notice evidence is relevant to the situation in nineteen ninety nine well you're right certainly i certainly do agree with that point and i think that the board uh... made it made that clear in its june two thousand fifteen decision order when discussing the special circumstances exception to the no litigation rule it pointed out that

[00:19:11] Speaker 02:
Courts have upheld the principle that change circumstances arising with certification have been held irrelevant.

[00:19:21] Speaker 02:
And we cite a number of board and court decisions in our brief that support that principle.

[00:19:28] Speaker 02:
I'm running out of time here, Your Honors.

[00:19:32] Speaker 02:
I guess that unless the Court has other questions for me, which I'm very happy to answer, I would respectfully ask that the Court enforce the Board's order in full.

[00:19:39] Speaker 03:
Thank you.

[00:19:42] Speaker 03:
Council for Intervener.

[00:19:48] Speaker 05:
and made police according to Jim Coppice for the Masters, Meats, and Pilots.

[00:19:53] Speaker 05:
The only issue in this case is the validity of the certification from the 2000 election.

[00:19:59] Speaker 05:
The union's status as the exclusive representative was established at that point.

[00:20:04] Speaker 05:
In order to defend its refusal to bargain, the company has to establish that that certification was invalid.

[00:20:11] Speaker 05:
And they really make almost no effort to do that.

[00:20:14] Speaker 05:
In that argument today, they make no effort

[00:20:16] Speaker 05:
to do that.

[00:20:16] Speaker 05:
There's certainly substantial evidence to support the board's conclusion that the Mates, the only contested position, were not supervisors at the time of that election.

[00:20:28] Speaker 05:
The company spends a lot of time talking about intervening changes in the law and the new evidence.

[00:20:33] Speaker 05:
It's all irrelevant

[00:20:35] Speaker 05:
But seeing as how they only raised the change in the lie in their reply brief, we didn't get a chance to address that, and I'd like to briefly just dispel any confusion on that score.

[00:20:46] Speaker 05:
At the time of the hearing in this case, the testimony was that most of the maids held a master's license.

[00:20:53] Speaker 05:
And the reason for that is that people progress through these different positions.

[00:20:57] Speaker 05:
They become licensed mates, and then they become licensed as a master so they can assume the role of captain of the vessel.

[00:21:04] Speaker 05:
The captain of the vessel is an appointment on the vessel.

[00:21:08] Speaker 05:
There has to be a captain in charge.

[00:21:10] Speaker 05:
There has to be a captain in charge by the company's own policy.

[00:21:13] Speaker 05:
There has to be a captain in charge by the Coast Guard regulations, one single person in charge of the vote.

[00:21:19] Speaker 05:
The mate is not that person.

[00:21:21] Speaker 05:
The maid's responsible for steering the boat while the captain is off duty, present on the boat and still in charge.

[00:21:28] Speaker 05:
But the maid is not in charge of the boat and never has been and isn't to this day.

[00:21:37] Speaker 01:
So what is it Mr. Carpeth that you're referring to when you say they have the master's license they can assume

[00:21:42] Speaker 01:
the role of captain on the vessel, but then you say the Coast Guard regulations and company policies say they're not assuming that role, or that means they're looking to... Well, the Coast Guard regulations...

[00:21:52] Speaker 05:
So what's in evidence here, and what we've been able to discuss, because they raised the point at the beginning, if you look at Supplemental Appendix 53, they describe the captain as the master of the vessel.

[00:22:04] Speaker 01:
Right.

[00:22:04] Speaker 01:
I follow that.

[00:22:04] Speaker 01:
You just had said something that was slightly confusing to me.

[00:22:07] Speaker 01:
You said that most maids hold a master's license so they can assume the role of captain on a vessel.

[00:22:12] Speaker 05:
So eventually they might get a promotion.

[00:22:14] Speaker 05:
They can get appointed captain.

[00:22:15] Speaker 05:
You can't get appointed captain without a master's license.

[00:22:18] Speaker 05:
It's a prerequisite to getting the job and that's why if you look at Joint Appendix 109, the testimony back in 2000 was that most of the maids held a master's license.

[00:22:32] Speaker 05:
They would never get to be captain if they didn't hold a master's license while they had the role of mate.

[00:22:37] Speaker 05:
But that doesn't mean that because they hold the license, they're the captain.

[00:22:42] Speaker 05:
They're not.

[00:22:42] Speaker 05:
They're just the maid.

[00:22:44] Speaker 05:
And it's the captain who is the supervisor, and the maid is not a supervisor.

[00:22:49] Speaker 01:
So all this time the union has had no ability to bargain, 15, 17 years?

[00:22:54] Speaker 05:
No, they've refused to bargain, period.

[00:22:58] Speaker 04:
So that was my question, Mr. Copas.

[00:23:00] Speaker 04:
I totally get your point that the question is what happened in 1999, whether they were supervisors then.

[00:23:07] Speaker 04:
But we're 18 years later here and I don't think Brusco is responsible for any of these delays.

[00:23:13] Speaker 04:
These are all delays caused either by the boards taking years to decide a case or because of these intervening Supreme Court cases.

[00:23:20] Speaker 04:
So here we are like 18 years later and

[00:23:25] Speaker 04:
How do we think about that problem?

[00:23:27] Speaker 04:
Or is that not a problem?

[00:23:28] Speaker 05:
Well, you know, it is a problem.

[00:23:29] Speaker 05:
It is a reason.

[00:23:30] Speaker 05:
It's a problem that we run into all the time.

[00:23:33] Speaker 05:
You know, what do we do about that?

[00:23:33] Speaker 05:
It could be three years in one case, five years in another case.

[00:23:36] Speaker 05:
It's unfortunately 18 years here.

[00:23:39] Speaker 05:
But the truth of the matter is, when you've got that much time between the election and when the employer finally starts to bargain, it is a problem.

[00:23:45] Speaker 05:
But a solution to the problem is not to say, well, the employer then never has to bargain, because they'll just defy what they did here.

[00:23:54] Speaker 05:
What's the solution?

[00:23:55] Speaker 04:
The point is to do everything faster, right?

[00:23:57] Speaker 05:
Yeah, I mean, if everything got done faster and more simply and with less... But this one just seems so unusual.

[00:24:04] Speaker 04:
You've received a case quite like this one.

[00:24:06] Speaker 05:
I mean, this is a long time.

[00:24:08] Speaker 05:
You know, unfortunately, I deal with a lot of cases that have variations on this.

[00:24:11] Speaker 04:
Did you file a case in the first case?

[00:24:12] Speaker 04:
I can't remember.

[00:24:12] Speaker 04:
Did you file a brief in the first case too?

[00:24:15] Speaker 04:
Pardon me?

[00:24:16] Speaker 04:
Did you file a brief in the first case the first time?

[00:24:18] Speaker 05:
No, no, we were not in the case.

[00:24:20] Speaker 05:
So you were here then with me, huh?

[00:24:21] Speaker 05:
I mean, I could have been.

[00:24:22] Speaker 05:
I was practicing.

[00:24:23] Speaker 05:
I know you were.

[00:24:24] Speaker 05:
So I'm wondering where you were back then.

[00:24:27] Speaker 05:
Probably attending to some other sad old place.

[00:24:33] Speaker 05:
And what's the court has for that?

[00:24:34] Speaker 05:
So there's nothing we can do about that.

[00:24:36] Speaker 04:
The question was 1999.

[00:24:38] Speaker 04:
We just have to keep focused on that question and hope the board does everything faster in the future.

[00:24:48] Speaker 05:
I mean, if everything moves faster and if the court keeps it in mind, I suppose, when it's reviewing the board decisions, I mean, all that's going to happen

[00:24:56] Speaker 05:
now is that the union and the employer will finally sit down and bargain.

[00:25:00] Speaker 05:
And if there have been changes that are relevant to what should be on the contract or who should be in the unit, they can bargain about that.

[00:25:07] Speaker 01:
And if these employees don't want to be represented by the union at this point, would they have a remedy as well?

[00:25:13] Speaker 05:
Yeah, they can.

[00:25:13] Speaker 05:
After bargaining, it's had a reasonable chance to succeed, and it's not succeeded to their liking.

[00:25:18] Speaker 05:
They can decertify the union.

[00:25:20] Speaker 05:
And the union's not going to get anywhere without their support anyway.

[00:25:22] Speaker 05:
So there's no danger of that.

[00:25:26] Speaker 01:
Thank you.

[00:25:27] Speaker 05:
Thank you.

[00:25:31] Speaker 06:
Just a few points.

[00:25:33] Speaker 06:
I think the danger is that we'll be bargaining for supervisors that will be in the unit with the people that they supervise.

[00:25:39] Speaker 06:
And that is a danger of affirmance here.

[00:25:42] Speaker 06:
On the issue of the 1999 record, as opposed to the changing circumstances, I would point out that- Why is it a danger when the standard process

[00:25:54] Speaker 03:
in these board cases is that they do drag out.

[00:26:00] Speaker 03:
And there was a little unusual situation in this case, both because of political refusal to appoint nominees to the board and then the whole problem that the Supreme Court had to address.

[00:26:14] Speaker 03:
So these are things beyond this court's control, obviously, and your control in one sense.

[00:26:22] Speaker 03:
But there are remedies available.

[00:26:25] Speaker 03:
And meanwhile,

[00:26:31] Speaker 03:
The board has simply said, we're not going to re-litigate these cases all over again, as though nothing happened back in 1999 and 2000.

[00:26:39] Speaker 03:
Well, Your Honor, on the issue- What's unreasonable about that?

[00:26:42] Speaker 06:
Well, I think just, I mean, the delays here have been astounding, unprecedented.

[00:26:47] Speaker 03:
And the fact of the matter is- No, no, but what I'm getting at is the regional director rules, the board rules, the board remands, the regional director rules, the board remands.

[00:26:58] Speaker 03:
That's standard administrative procedure.

[00:27:00] Speaker 03:
We had some politics get in so the board couldn't get people that it needed in order to be able to act lawfully.

[00:27:07] Speaker 03:
It took time to get that resolved.

[00:27:09] Speaker 03:
Then the appointments had to be made.

[00:27:11] Speaker 03:
People had to be confirmed.

[00:27:12] Speaker 03:
I mean, you know, move slowly.

[00:27:15] Speaker 03:
And your client, as opposed to the people who voted for the union, has benefited.

[00:27:24] Speaker 03:
You haven't had to bargain all these years in that sense.

[00:27:28] Speaker 03:
So it's not as though you've been bargaining all these years, sort of wasting your efforts.

[00:27:35] Speaker 06:
Well, Your Honor, really, if I could just go back to this issue of 1999 versus now, when the board first was confronted with our request to offer new evidence, their response was, and this is at Joint Appendix or Department of Appendix 407, was that

[00:27:53] Speaker 06:
we should have submitted a motion to reopen the record, and then they made the point that the representation hearing was closed because there had been a decision, which was a Noel Canning decision, which was void.

[00:28:06] Speaker 06:
But that was their point.

[00:28:07] Speaker 06:
They never made the point that the record is frozen as of 1999.

[00:28:11] Speaker 06:
They just said that we should have moved to reopen the record more promptly.

[00:28:15] Speaker 06:
So I think

[00:28:16] Speaker 06:
The court should really focus on the reasons given by the board for the failure to consider a new evidence, not just simply the notion that we're frozen in time in 1999.

[00:28:26] Speaker 06:
That's all we can put up.

[00:28:27] Speaker 06:
That's never been their position.

[00:28:28] Speaker 06:
Then in their additional decisions in 2015,

[00:28:32] Speaker 06:
They then came up with the idea, again, that we should have moved to reopen the record while it was open.

[00:28:37] Speaker 06:
And one of the dissenting board members said, well, we did try to get in the evidence while the representation hearing was open.

[00:28:43] Speaker 06:
So I think that, procedurally, we should be allowed to put on this new evidence because of that fact.

[00:28:48] Speaker 06:
Also, it's uncontradicted here on the merits of this case that when the mates are in charge of the watch, they run the boat, and they stand in the shoes of the captain.

[00:28:56] Speaker 03:
So can I just ask you a question on that?

[00:28:58] Speaker 03:
Suppose the evidence had been admitted, all right?

[00:29:03] Speaker 03:
That doesn't mean you win, if you understand what I'm getting at.

[00:29:07] Speaker 03:
In other words, the board still could have said, ah, yes, we see the Coast Guard has changed its licensing procedures, and consequently, some of the duties of the mates have changed.

[00:29:18] Speaker 03:
And the board was very careful here to say, on this record, on these facts, we're not saying anything more broadly, et cetera.

[00:29:27] Speaker 03:
It could have said, we're just not going to reopen this case and allow you to

[00:29:32] Speaker 03:
make a new case based on subsequent events.

[00:29:35] Speaker 06:
But Your Honor, this was, in essence, like a summary judgment motion.

[00:29:39] Speaker 06:
And we were asking for the opportunity to be heard on the new evidence that had developed.

[00:29:44] Speaker 03:
I'm just trying to carry through that if you got the opportunity, it doesn't necessarily mean that the board would have determined that to have changed anything about 1999.

[00:29:54] Speaker 03:
That's what I'm trying to get at.

[00:29:56] Speaker 03:
It's true.

[00:29:56] Speaker 03:
The business itself has changed.

[00:30:00] Speaker 03:
over this course of period, as you point out in your brief.

[00:30:04] Speaker 03:
So a lot of things have changed.

[00:30:06] Speaker 06:
You're right, that's all true.

[00:30:08] Speaker 03:
And the board has discretion, doesn't it?

[00:30:11] Speaker 03:
The board could have said, we're going to hear your evidence and we are going to reconsider this because, as you point out, there are only two of the 39 employees left.

[00:30:20] Speaker 03:
And it's not where the employer has tried to finagle some change of circumstances.

[00:30:25] Speaker 03:
It's all beyond your control.

[00:30:27] Speaker 06:
What I would point out though is the board never said that the evidence that we were positing was irrelevant, nor did it contest the fact that it might have been dispositive if it was considered on the issue.

[00:30:37] Speaker 06:
It simply said that we didn't act promptly, and in light of the delays, I think the idea that we didn't act promptly really kind of rings hollow, and I think... So as you know, we held a lot of board cases in abeyance.

[00:30:51] Speaker 03:
during this problem period.

[00:30:53] Speaker 05:
Correct.

[00:30:53] Speaker 03:
So there's a lot of delay that we see in a lot of cases.

[00:30:57] Speaker 03:
But that's not only the type of administrative cases we see with a lot of delay.

[00:31:01] Speaker 03:
I mean, these petitions before FERC takes forever to get resolved.

[00:31:07] Speaker 06:
But, Your Honor, the delays here, many of the years, the first there was a four-year delay.

[00:31:12] Speaker 06:
That had nothing to do with the null canning issue or the appointment issue.

[00:31:16] Speaker 06:
The board, its own rules say that it's supposed to expedite, to the greatest extent possible, representation hearings, and then there's a four-year delay.

[00:31:24] Speaker 06:
Then there's a six-year delay.

[00:31:25] Speaker 06:
Then there's more delays because of the null canning.

[00:31:27] Speaker 06:
So again,

[00:31:29] Speaker 06:
The evidence was never or the position of the board.

[00:31:32] Speaker 06:
And I think this is what I would like to leave the court.

[00:31:34] Speaker 06:
The position of the board has never been that the record is frozen in 1999.

[00:31:37] Speaker 06:
The position simply was we should have made a motion to reopen earlier.

[00:31:42] Speaker 03:
Thank you.