[00:00:01] Speaker 07: Case number 18-1037 at out. [00:00:04] Speaker 07: Pennsylvania Interscholastic Athletic Association Inc. [00:00:08] Speaker 07: Petitioner versus the National Naval Relations Board. [00:00:11] Speaker 07: Mr. Baskin for the petitioner. [00:00:13] Speaker 07: Mr. Weiss for the respondent. [00:00:15] Speaker 07: Mr. Schultzfeld for the interviewee. [00:00:52] Speaker 02: I'm Maurice Baskin, representing the PIAA, which is the state standard-setting body for high school and middle school athletics in Pennsylvania. [00:01:02] Speaker 02: We ask the PIAA to be a private employer of high school lacrosse officials, but we maintain those officials are independent contractors and that PIAA is actually a political subdivision under the Act. [00:01:17] Speaker 02: So for both reasons, the board order should be denied enforcement. [00:01:20] Speaker 02: Second, the independent court issued the board decision cannot be enforced by this court because the board openly relied on a legal standard that this court rejected in the FedEx case. [00:01:33] Speaker 00: It seems to me, actually, that what the board did was rely on the restatement standard that our court in Lancaster Symphony has since reaffirmed and is the standard. [00:01:49] Speaker 00: You know, I understand that there was some crisscross, you know, between whether the FedEx 1 standard was a substitute or was a supplement or an interpretation, but the board here applied the 10 factors. [00:02:03] Speaker 00: The part is a briefness under those factors. [00:02:06] Speaker 00: So, and I get that there's a little bit of analogy to the way the board did it in FedEx 2, but it doesn't seem like it was a whole cloth wrong standard. [00:02:20] Speaker 02: Well, let me push back on that one, then. [00:02:23] Speaker 02: The FedEx sounded FedEx no less than 17 times in its opinion. [00:02:27] Speaker 02: It's FedEx. [00:02:28] Speaker 02: The FedEx sounded out and rejected by the Court. [00:02:31] Speaker 02: It also, the FedEx standard that the Board created goes beyond the restatement. [00:02:36] Speaker 02: It creates a new independent business test. [00:02:39] Speaker 03: That's what I'm – what I don't understand is what is it about the [00:02:45] Speaker 03: FedEx standard that they cited, or about the FedEx case that they cited, that you think is wrong, and then how that hurts you. [00:02:54] Speaker 03: Sure, and because it's not FedEx, it's a line of cases. [00:03:01] Speaker 03: What is it about FedEx you think is wrong that they rely on? [00:03:07] Speaker 03: about their FedEx decision. [00:03:09] Speaker 03: It's the question of supervision. [00:03:11] Speaker 02: I apologize because there's multiple – it's the way they address each factor. [00:03:15] Speaker 03: Oh, all right. [00:03:16] Speaker 03: But our case did not address any of that. [00:03:18] Speaker 03: Our case addressed the entrepreneurial opportunity question. [00:03:23] Speaker 03: That's the only extent to which our FedEx was overturning their FedEx. [00:03:31] Speaker 02: But actually, the court in FedEx 1 and 2 cited all of the restatement factors that [00:03:38] Speaker 02: relying on this entrepreneurial activity issue. [00:03:42] Speaker 02: In fact, FedEx took issue with the way the board had handled the issue of supervision, the issue of relying on evaluations instead of day-to-day, the actual supervision of the work, the fact that the agreements were negotiated on our second FedEx case actually totally rewrote [00:04:02] Speaker 03: what the board had been doing with respect to all factors and not just entrepreneurial activity. [00:04:08] Speaker 03: I'm sorry, I was going to crack in. [00:04:10] Speaker 03: It's not anybody's fault. [00:04:14] Speaker 03: You think that the FedEx case of ours that vacated there [00:04:21] Speaker 03: I'm going to call, I don't know, let's get numbers here. [00:04:24] Speaker 03: You pick a number, FedEx 1, 2, 3, which one are we talking about now? [00:04:28] Speaker 03: The one that you don't like is FedEx Board 4. [00:04:32] Speaker 03: There have been two FedEx boards, but unfortunately. [00:04:40] Speaker 03: The first one, which we overturned, and then the second one, which we overturned. [00:04:45] Speaker 03: You think that the problem with that case that we found was not only having to do with entrepreneurial opportunity but everything. [00:04:55] Speaker 03: But all the factors under the common law test. [00:04:59] Speaker 03: But many of the factors that the board said in our case was the same as our previous case and so we're not going to have a different rule for what appears to be identical. [00:05:12] Speaker 03: Isn't that all we said when we vacated? [00:05:15] Speaker 03: The Court went the other way. [00:05:19] Speaker 02: We, in our brief, and it happened to have been in the brief in FedEx 2, challenged the Board's application of all the factors. [00:05:26] Speaker 02: But I would also add that if the Court – if the Court has read as saying we're just repeating what we said in FedEx 1, it was in FedEx 1 that the Court took issue with the Board's application of many of the – went through all the factors. [00:05:41] Speaker 02: And, yes, that was a big one. [00:05:44] Speaker 02: that the board had given to supervision, the independence of the supervision, the understanding of the parties, the over-reliance in evaluations, all of those things were part of FedEx 1 and by extension FedEx 2. [00:06:00] Speaker 02: But it may be easier to summarize, you know, what's wrong with this if we just go through [00:06:06] Speaker 02: This is not too fairly conflicting views. [00:06:08] Speaker 02: When you take whatever standard restatement or whatever the board is saying, the application of the tests is proof of someone who sells. [00:06:19] Speaker 02: It's exaggerating the evidence of day-to-day control. [00:06:22] Speaker 02: They are not what is very [00:06:28] Speaker 02: authority, including in this Court's FedEx, C.C. [00:06:31] Speaker 02: Eastern, and North American Valley lines, to mention a few. [00:06:35] Speaker 02: And the board thinks analysis when it reaches each of these points. [00:06:39] Speaker 02: For example, the critical factor of supervision. [00:06:42] Speaker 02: These officials get no supervision at the games. [00:06:45] Speaker 02: There's no one in New York looking at the video replays. [00:06:48] Speaker 02: There's no one in the stands. [00:06:49] Speaker 02: There's no one in the [00:06:51] Speaker 02: Unlike the Lancaster Symphony, where you have a dictatorial conductor micromanaging every aspect of the musician's performance on stage, there's no one there. [00:07:03] Speaker 02: Other than these officials who are high-level and productive, the instruction, call them as you see them. [00:07:09] Speaker 02: That is the essence of an independent, skilled specialist who is brought in. [00:07:15] Speaker 02: Because T.F. [00:07:17] Speaker 02: is not the presence of officiating games. [00:07:20] Speaker 02: They're a standard-setting body. [00:07:22] Speaker 02: They're there to certify and create a pool of officials from which the schools, the public schools mostly, who are the members, they are and do the cleaning. [00:07:33] Speaker 00: Yeah, but that's very helpful. [00:07:35] Speaker 00: So, I mean, in the FedEx board, they held that the dress and safety standards favored employee status. [00:07:46] Speaker 00: And whereas in FedEx 1, we had acknowledged the dress and safety inputs, but said that they did not lay in favor of employee status. [00:07:58] Speaker 00: And so then you're saying when FedEx board [00:08:02] Speaker 00: sees that differently and then this board relies more on FedEx board if that's intention. [00:08:08] Speaker 02: Correct. [00:08:09] Speaker 00: So you said that PIA is not in business. [00:08:14] Speaker 00: Who pays PIA? [00:08:15] Speaker 00: Where do they get their revenue stream? [00:08:16] Speaker 00: Is that the schools? [00:08:18] Speaker 02: Members pay dues. [00:08:19] Speaker 02: Actually officials pay dues. [00:08:21] Speaker 02: It's an association of all the different constituencies. [00:08:24] Speaker 00: You said members. [00:08:24] Speaker 00: That's member schools. [00:08:26] Speaker 02: whose budgets are prepped and the difficult, something devastating impact of this decision, upsetting 30 years of precedent, actually 100 years that the organization has been in place, is going to be very disruptive. [00:08:40] Speaker 02: That's what the amicus of the Federation High Schools is concerned about. [00:08:44] Speaker 02: We're concerned about it. [00:08:49] Speaker 02: professionalism where there's millions of dollars to justify regular employment status of umpires or the like, who, by the way, work hundreds of games in a season compared to here, it's 20 hours of work on average, 70 percent of which are paid by the thrills, not the PR. [00:09:11] Speaker 02: So there's supposed to be an employment [00:09:13] Speaker 02: except for a two-week period of what amounts to three playoff games. [00:09:19] Speaker 02: That's not enough to make someone retiree under wrong lines or without precedent. [00:09:24] Speaker 00: There's at least one case, maybe it was the Title VII case, that separated the period during which the officials are paid by the schools and the period during which the officials are paid by the PIAA analog and said they were employers during the latter. [00:09:40] Speaker 00: Can you explain? [00:09:43] Speaker 02: for two weeks. [00:09:46] Speaker 02: They said they were closed for the whole season, which is still a minimal amount of time, much less than Lancaster Symphony, where they had an average of 150 hours of music played per year, on which they were played hourly, not flat fees, because if the performance went wrong, they got paid extra here. [00:10:04] Speaker 02: It's a flat fee payment. [00:10:06] Speaker 02: And that's a payment that's supposed to be an important factor. [00:10:08] Speaker 02: The board said, well, in fact, [00:10:11] Speaker 02: situation where they're not in the middle at all. [00:10:14] Speaker 02: The officials ought to pursue other careers, including as an analog blue agent and to work for other organizations, referring, officiating at other types of games. [00:10:29] Speaker 03: The board said there wasn't evidence that they were refereeing other games for money. [00:10:34] Speaker 03: I think in your brief you cited some part of the record where somebody said that they were. [00:10:39] Speaker 03: Can you talk about that? [00:10:42] Speaker 02: Yes, we definitely – there was a very clear testimony to that effect, which is – I know we cited it in our reply brief, and on the issue of the absence of supervision – not on supervision. [00:11:01] Speaker 03: I'm asking about their ability to work to roughen other games. [00:11:09] Speaker 03: that they do so is specifically. [00:11:12] Speaker 03: That's just the ability that they actually do do it. [00:11:15] Speaker 02: Yeah. [00:11:16] Speaker 02: They actually do it. [00:11:16] Speaker 02: That's the testimony. [00:11:17] Speaker 02: The question was asked, do they really do this? [00:11:20] Speaker 02: He said, absolutely. [00:11:21] Speaker 02: He gave examples of rec leagues and AAU events, college games. [00:11:28] Speaker 03: Can you just tell me where in the Joint Appendix? [00:11:29] Speaker 03: Yes, and it looks like I'm going to run back. [00:11:34] Speaker 03: I will do that. [00:11:39] Speaker 03: What about the insurance that they provide during the period when they're being paid by the states? [00:11:46] Speaker 03: I'm sorry? [00:11:47] Speaker 03: What about the insurance? [00:11:48] Speaker 02: It is awkward. [00:11:52] Speaker 02: medical insurance, health insurance, they get liability insurance. [00:11:58] Speaker 02: And that's just a factor that is inconclusive. [00:12:01] Speaker 02: It's less than what most employees get. [00:12:03] Speaker 02: They don't get other types of benefits. [00:12:04] Speaker 02: They don't get vacations and these kinds of things. [00:12:08] Speaker 02: So it seems like a relatively minor factor. [00:12:12] Speaker 02: you know, made it a big deal. [00:12:15] Speaker 02: The officials supplied the stadium. [00:12:17] Speaker 02: So it's uncontested. [00:12:18] Speaker 02: The board here recognized that as a strong factor. [00:12:22] Speaker 02: They said, well, the PIA supplies the stadium. [00:12:25] Speaker 02: But that's not true. [00:12:26] Speaker 02: The stadiums are supplied by the schools, the public schools. [00:12:30] Speaker 02: And at the end, the thing is held in a public stadium. [00:12:34] Speaker 02: Hershey, I think, was the venue for the 2015 playoffs. [00:12:39] Speaker 00: Let me ask you. [00:12:40] Speaker 00: You said, you know, PIA is not a [00:12:42] Speaker 00: doesn't have deep pockets and that this is really a stress on the organization. [00:12:51] Speaker 00: Can you put this in context? [00:12:53] Speaker 00: What else other than just the right to organize and be represented in what I imagine would not be highly complex negotiations? [00:13:02] Speaker 00: What else is, as a practical matter, at stake here? [00:13:07] Speaker 00: And I'm thinking, [00:13:09] Speaker 00: Partly, really, of just adjacent areas of law. [00:13:13] Speaker 00: What? [00:13:14] Speaker 00: Is that? [00:13:15] Speaker 00: Title VII, workers' comp, you know, responding on superior liability. [00:13:19] Speaker 00: Well, that's what I was saying. [00:13:22] Speaker 00: You know, I know this isn't the legal issue before us, but the context might surely be helpful to know. [00:13:29] Speaker 02: Yes. [00:13:29] Speaker 02: It's ungrateful. [00:13:30] Speaker 02: So they've been sued under the fairer understanding set by these officials. [00:13:35] Speaker 02: Now, talking to the training sessions, whether they should be, you know, paid, the seminars they go to to say current on the rules, all of that [00:13:45] Speaker 02: Right at the first page or second page of the complaint, it says, well, the National Labor Relations Board has just held that they are employees. [00:13:51] Speaker 02: So by extension, let's go away. [00:13:54] Speaker 02: Where the money is going to come from to deal with that is beyond, well, anyone. [00:13:58] Speaker 02: And it's all because completely upsetting the understandings of all concerned, including the officials who testified, every one of them, that understood they're considered to be independent contractors. [00:14:10] Speaker 02: where the board rejected what this Court has repeatedly held. [00:14:14] Speaker 02: The board said, well, it wasn't fully negotiated on equal terms, and it was taken as you leave it. [00:14:20] Speaker 02: FedEx 1, C.C. [00:14:22] Speaker 02: Eastern, and NAVL all said that is irrelevant to the consideration for an independent contractor. [00:14:28] Speaker 02: On that issue alone, the board decision should not be enforced. [00:14:32] Speaker 02: Because you have the right, you say, to enforce it on reasons that articulate. [00:14:39] Speaker 02: There are articulate reasons that are invalid under this Court's precedent. [00:14:43] Speaker 02: And I'm eating my rebuttal, but I want to be sure to mention that another area that the board completely dropped the ball did not drop the ball because they let the regional director decide it. [00:14:54] Speaker 02: That's the political subdivision issue. [00:14:55] Speaker 02: And on that point, I want to make one point and reemphasize what's in the briefs. [00:15:00] Speaker 02: There's no case where the [00:15:01] Speaker 02: board of the entity was consisted overwhelmingly of public officials and publicly appointed officials, which is the case here. [00:15:11] Speaker 00: But that's what we're talking about. [00:15:13] Speaker 00: I'm a public official, but when I coach my kids' soccer, I'm not doing that ex officio as a representative of Article III courts. [00:15:22] Speaker 00: I'm doing that as a parent, and so it just seems there's a missing link there. [00:15:26] Speaker 00: The fact that many of these folks are teachers or [00:15:31] Speaker 02: if you will, by looking at Article 6 of the Constitution of – which is J.A. [00:15:38] Speaker 02: 60. [00:15:39] Speaker 02: Because it is very precisely spelled out with input from Congress, by the way, which adds to the mix, because they designated certain people to be there. [00:15:49] Speaker 02: Not because they – like La Crosse, it's – these are board, not the officiators, not the coaches, although they are also involved. [00:16:00] Speaker 02: representatives of the school boards through the School Board Association, through the principals, the coaches, the athletic directors. [00:16:08] Speaker 02: They are all required to be on the board. [00:16:11] Speaker 02: Eight of the examiners, one-sixth out of the 31 board members in 2015, and this was brought through a new hearing, are representatives and are employees of the public schools. [00:16:23] Speaker 02: And I would call your attention to Section 2A of Article 6, [00:16:31] Speaker 02: They're supposed to be replaced, although they have discretion to let them stay around, at the discretion of the committee that put them on board, which, again, consists of school representatives. [00:16:45] Speaker 02: and stay through the end of the year, but there is the provision there that we cannot fail because there are parents who happen to work for the school board, except for two who are specifically designated as such, and one designated from the private schools, but the only [00:17:03] Speaker 02: employees and the board has failed to recognize that. [00:17:06] Speaker 03: And your concern about lawsuits, if we hold that you're a state agency, won't that make you subject to suits under 1983? [00:17:17] Speaker 03: Which you wouldn't be subject to if you're a private entity. [00:17:21] Speaker 02: Well, the state has already addressed these issues. [00:17:25] Speaker 02: The state agencies and courts have rejected the notion that the officials are employees, something that the board has overlooked. [00:17:33] Speaker 02: Chairman, this is about... No, no, no. [00:17:34] Speaker 03: I'm talking about if the entity that you represent, which is the CIA, is regarded as a state agency. [00:17:42] Speaker 03: then it could be sued under 1983 for a whole host of things that people sue state agencies and state officials under 1983. [00:17:52] Speaker 02: But that's the dilemma here. [00:17:53] Speaker 02: They are being treated as a state agency, for example, under the right to know laws. [00:17:57] Speaker 02: They are already subject to these suits, and now they're being sued from both directions. [00:18:01] Speaker 03: So there are cases that have held under 1983 that this association is a state actor? [00:18:08] Speaker 03: No, not under 1983. [00:18:09] Speaker 03: because they haven't done anything wrong. [00:18:11] Speaker 03: They haven't been sued for that yet. [00:18:14] Speaker 03: Sometimes you can be sued even if you didn't do anything wrong. [00:18:17] Speaker 03: Right. [00:18:17] Speaker 02: Well, I wouldn't sue for anything. [00:18:19] Speaker 02: Under the This situation is the state has already declared that these officials are not independent. [00:18:31] Speaker 02: in other contexts, there should not be a need for this if the 30 years of precedent is approved. [00:18:38] Speaker 00: You're talking about responding to superior suits, but what about suits directly for, you know, the content of PIA's training, whatever? [00:18:44] Speaker 00: They could be more vulnerable to suit under pursuit action, you know, Establishment Clause or First Amendment, content-based, whatever. [00:19:01] Speaker 02: recognize as a political subdivision and as an act of the Labor Relations Act. [00:19:06] Speaker 02: And the defense to these other claims would be, well, that's as to the National Labor Relations Act. [00:19:11] Speaker 02: So we'll deal with what else comes later. [00:19:14] Speaker 02: The other solution is to recognize that these folks, these officials, are independent contractors. [00:19:21] Speaker 02: Under either approach, the board has dropped the ball. [00:19:25] Speaker 02: I'd like to reserve a couple more minutes for rebuttal. [00:19:28] Speaker 02: Thank you. [00:19:39] Speaker 01: I just have to respond in order to the number of mischaracterizations made by Petitioner. [00:19:46] Speaker 01: First of all, with regard to the quote-unquote [00:19:51] Speaker 01: Your Honor, the test for independent contractor status under the National Operations Act is the common law test of agency. [00:19:58] Speaker 01: That's what both the Board and this Court are required to comply, to apply under the Supreme Court's opinion in United Insurance. [00:20:06] Speaker 01: And that's what the Board applies to, completely consistent with this Court's recent opinion in Lancaster Symphony Orchestra. [00:20:13] Speaker 01: Just to clarify, [00:20:14] Speaker 01: The board did in the board's FedEx 2 decision, responding to this court's opinion in FedEx 1, the board felt that it needed to clarify some of its own precedent, existing precedent as to certain considerations it takes into account. [00:20:32] Speaker 01: that are considered along with the restatement common law factors. [00:20:35] Speaker 01: And in doing so, it – it organizes those under this – the heading of whether individuals are operating independent businesses with entrepreneurial opportunities for gain or loss. [00:20:48] Speaker 01: And so, for example, under that subheading, it considered traditional entrepreneurial opportunity. [00:20:53] Speaker 01: It considered whether individuals can work for other employers. [00:20:56] Speaker 01: It considered whether they have the properties to extend their work. [00:20:59] Speaker 01: whether they can make decisions such as hiring assistants. [00:21:04] Speaker 01: And in Lancaster Symphony Orchestra, this Court endorsed all of those considerations and, in fact, cited and quoted the Board's decision in FedEx 2. [00:21:12] Speaker 01: So the actual text here, at the end of the day, did become about test of agency, and that's what the Board thought, completely consistent with this Court's precedent, going back 30 years to, for example, this Court's decision in city capital, Orlando. [00:21:26] Speaker 01: And as we point out, [00:21:30] Speaker 01: the various factors consistent with prior decisions of this Court or the Supreme Court. [00:21:35] Speaker 03: If we could talk about the application in this case, what about the problem raised by opposing counsel that they're only paid for two weeks and only for, it's an hour at a time, right? [00:21:58] Speaker 03: I don't mean the whole season. [00:22:01] Speaker 03: I take it it's only for the playoffs that they're paid by the PIA. [00:22:08] Speaker 03: How long is that? [00:22:12] Speaker 01: It's a handful of games. [00:22:14] Speaker 01: It's less than the majority of the season. [00:22:17] Speaker 01: And that's when the officials are paid directly by PIA. [00:22:23] Speaker 01: Even during the record season, PIA [00:22:26] Speaker 01: an employer, and it's not dispositive that during the regular season, the officials are paid by the number of schools. [00:22:34] Speaker 01: One example of a similar [00:22:47] Speaker 01: And then they made it off of the things paid by customers. [00:22:52] Speaker 01: They were not paid correctly by the employer in that situation. [00:22:56] Speaker 01: And this court affirmed the board's finding that those individuals were employees under a certain type of employment relationship. [00:23:04] Speaker 01: So the purpose of the independent conflict, excuse me, in the Act is not to limit coverage of the Act. [00:23:16] Speaker 01: It was meant to apply to different types of informal relationships as long as there is a common law agency relationship. [00:23:32] Speaker 01: that these officials aren't supervised based on what they do during games. [00:23:38] Speaker 01: The calls are not subject to on-field review, but that's not only as implications for the games themselves. [00:23:44] Speaker 01: So, for example, an official makes a bad call. [00:23:48] Speaker 01: The team, the ROM [00:23:59] Speaker 01: possible disappointment. [00:24:00] Speaker 01: In fact, if you read the official's manual and the Constitution and by the extensive regulations that P.A. [00:24:07] Speaker 01: maintains, they explicitly say if an official makes a sufficient number of bad or incompetent calls on the field, they're subject to disciplinary removal. [00:24:17] Speaker 01: In addition, [00:24:29] Speaker 01: And the fact that there's no on-field supervisor, again, is not dispositive. [00:24:35] Speaker 01: I would point to the Supreme Court's opinion, United Insurance, where you had insurance agents who went out into the field. [00:24:42] Speaker 01: They had no supervisor with them. [00:24:44] Speaker 01: But at the end of the day, before we review their work reports and also complaints from customers, and those exact considerations the Supreme Court held were indicative of a lack of attendance and of employee status. [00:24:59] Speaker 01: And that is – it's not generating revenue. [00:25:06] Speaker 01: That's simply not true. [00:25:09] Speaker 01: This entity generates millions of dollars. [00:25:16] Speaker 01: significant non-profit corporation in the state of Pennsylvania. [00:25:20] Speaker 01: And, furthermore, even if it was not for that degree of revenue, these type of policy considerations are simply irrelevant, because Congress's intent in creating independent contractor exclusion was to have the court and the courts apply to come a law of agency. [00:25:36] Speaker 01: Not only this court are supposed to take into account policy considerations, even assuming that there are any records supporting [00:25:49] Speaker 00: So just to help us think about, I sort of was grouping factors 2, 8, and 10 together, and maybe I'm failing to appreciate the nuances, but it seems like whether the period of contractor is engaged in a distinct occupation or business, or it's the same [00:26:06] Speaker 00: occupational businesses, like when the plumber shows up at the McDonald's, you know, is the plumber's in one business, the McDonald's is in another, and it supports the fact that the plumber is an independent contractor, not an employee. [00:26:17] Speaker 00: Whether the work is part of the regular business of the employer, again, you know, is somebody who's, you know, doing longer work for my small firm, [00:26:27] Speaker 00: in the same legal field as the firm that I'm running, that would tend to favor an employee relationship, and whether the principalizer is not in the same business, it seems to me it's kind of going to the same question. [00:26:38] Speaker 00: And that factor here, I take it that Mr. Baskin says, you know, PIA is in the business of standard setting, the officials are in the business of officiating at games, and your response is? [00:27:02] Speaker 01: to its customer member schools, and one of the main reasons that the schools pay dues to PIF is sort of the grand distinction that the petitioner draws in its brief simply cannot be complicated. [00:27:16] Speaker 01: You could always draw a distinction like that. [00:27:18] Speaker 01: For example, you could say, you know, Walmart is in the business of operating sufficient supply chains, and its employees kind of stop growing up in the business of selling retail goods. [00:27:38] Speaker 01: to do something in your McDonald's. [00:27:40] Speaker 01: That's clearly in a different business. [00:27:42] Speaker 01: But here, people are in the business of offering officials to this number of schools, and in fact, it's not simply a neutral intermediary, but it's involved at all [00:28:00] Speaker 01: continuously issues rural interpretations and trains the officials on those changing rural interpretations. [00:28:07] Speaker 01: It supervises the officials for the reasons we explained. [00:28:10] Speaker 01: It has extensive [00:28:25] Speaker 00: What are the strongest factors of all of these factors? [00:28:29] Speaker 00: I mean, entrepreneurial opportunity would seem in a way similar, well, would seem to favor employee status. [00:28:36] Speaker 00: Other factors that really stand out for you, without just going through them sequentially? [00:28:41] Speaker 01: Right. [00:28:46] Speaker 01: Instrumental tools, the board. [00:28:49] Speaker 01: Conclusive. [00:28:52] Speaker 01: is the right to control the means and manner of work. [00:28:55] Speaker 01: Because here, these extensive regulations that it requires officials to comply, it extensively threatens officials that if they're not in compliance, they put potential discipline. [00:29:09] Speaker 01: So there's really extensive oversight. [00:29:11] Speaker 03: Wouldn't that happen with any independent contractor? [00:29:15] Speaker 03: If they were independent contractors and they didn't do a good job on the field, they wouldn't be rehired [00:29:22] Speaker 03: for another game or for the next day, why is this post-hoc discipline or review sufficient to make them employees? [00:29:57] Speaker 03: doing the work or when these officials are on the field. [00:30:00] Speaker 03: So I think the key distinction... Well, you might not hire him again if he violated, I don't know, District of Columbia regulations regarding the way in which the pipes were fitted. [00:30:10] Speaker 03: That would be a reason that you would not rehire him again. [00:30:14] Speaker 03: Certainly not. [00:30:16] Speaker 03: The results of the work, he wouldn't have... [00:30:45] Speaker 03: In the FedEx cases, which would take the proposition they were ultimately held to be independent contractors, correct? [00:30:55] Speaker 03: Correct. [00:30:55] Speaker 03: They couldn't wear UPS labels on their clothes or on their cars. [00:31:00] Speaker 03: They couldn't drive a car that didn't have a FedEx label on the car. [00:31:06] Speaker 03: They had to take the label on, and if they wanted to do something else, they would then take it off. [00:31:12] Speaker 03: They, I assume, I can't remember the case exactly, although I did participate in it pretty heavily, I believe they had to wear something that indicated they were FedEx. [00:31:21] Speaker 03: That was for the, in a way, for the security of the customers, even though they were independent contractors. [00:31:27] Speaker 03: So, clothing alone can't be the answer. [00:31:30] Speaker 03: Yeah, absolutely. [00:31:31] Speaker 03: I'm not even sure how it cuts. [00:31:48] Speaker 01: But because of the further circumstances of that case, this court had an independent conflict. [00:31:54] Speaker 01: Exactly. [00:31:58] Speaker 01: except was ignoring or was not providing sufficient way to entrepreneurial opportunity, which comes from some of the other factors. [00:32:06] Speaker 03: What about the argument that Council will make when it comes back up on rebuttal and showing me the pages of the Joint Appendix where somebody testified that in fact they are able to get paying jobs as refs? [00:32:20] Speaker 03: Yes, Your Honor. [00:32:46] Speaker 01: So he did not come back yet, but any of the officials in this case had. [00:32:52] Speaker 01: So, and some of you are referring to P.S. [00:32:57] Speaker 01: in general, but I'd just like to emphasize for the court that this case only involves a unit of approximately 140 lacrosse [00:33:20] Speaker 01: The very next line is expressly asking about the cross. [00:33:33] Speaker 03: You think that it wasn't – I'm looking at JA-30. [00:33:36] Speaker 03: Do you think that it wasn't present in the mind of the person who was answering that these were questions about the cross? [00:33:48] Speaker 01: Just to go on, on the next page. [00:34:02] Speaker 03: 31, do you know of any that have jobs or careers beyond officiating lacrosse? [00:34:11] Speaker 03: Yes, absolutely. [00:34:14] Speaker 03: Do you know any that you could tell us about? [00:34:17] Speaker 03: Well, Lacrosse, I don't know, but Mr. Seneca, he's a registered, he's an attorney. [00:34:25] Speaker 03: All right, I'll hold this until I have a chance to ask. [00:34:34] Speaker 01: is also eminently reasonable, but my first point would be that, you know, the Quote certainly owes deference to the Board's readings of the facts, and I think it's fair to read that as not being a concrete example. [00:34:45] Speaker 03: I'd also point out – I'm sorry. [00:34:47] Speaker 03: Did the Board reference this particular back-and-forth? [00:34:51] Speaker 03: Not specifically. [00:34:53] Speaker 01: There was insufficient evidence, and that relates me to my second point, which is, you know, [00:35:03] Speaker 01: because it is an exclusion to the definition of euphoria in Section 2-3 of the Act. [00:35:09] Speaker 01: So to the extent that [00:35:23] Speaker 01: making, because even if the Court assumes that these individuals could work for other employers, the more important point is what this Court held at Lancaster Symphony Orchestra, and it was what the Board has consistently held, which is that the mere ability to work for other employers if you're a part-time employee is, quote, miniscule evidence of entrepreneurial opportunity, and that's the only evidence in the record. [00:35:46] Speaker 01: This consolation and consideration to this fact of the matter weighs the weight of employee [00:35:52] Speaker 00: No, there seems to be some kind of – people view this factor differently. [00:35:57] Speaker 00: The question I thought in FedEx – in our FedEx one was, is the – is the nature of the way you do this job something that admits a – or [00:36:11] Speaker 00: yields to entrepreneurial effort. [00:36:14] Speaker 00: So you could subcontract, you could do work faster and smarter, you could sort of figure out ways to do the delivery work, in that case, or hear the refereeing, that would be entrepreneurial. [00:36:26] Speaker 00: For example, one might imagine a ref who would say, you know, I will come and give a rules talk to your school for 15 minutes before the game if you hire me to do that, or I will [00:36:41] Speaker 00: you know, whatever, do special things that make me a more popular coach to be hired. [00:36:46] Speaker 00: And, you know, they can't substitute someone else. [00:36:50] Speaker 00: It's hard to see a lot of entrepreneurial opportunity, but the part-timeness and the fact that they also work as an attorney, I think you're right, under Lancaster Symphony, that's not the test. [00:37:00] Speaker 00: Otherwise, every single part-time job would be independent contractor job. [00:37:06] Speaker 01: That's correct. [00:37:07] Speaker 01: reasoning and this cross-reasoning, and to go to your bonfire. [00:37:11] Speaker 01: The Symphony Orchestra made that point, that thankfully is to use your language, whether an individual can work smart or just hard, to make more money. [00:37:21] Speaker 01: And as the Board noted here, that's simply not the case for these officials, and that has implications for that, including the fact that, for example, they're paid back. [00:37:29] Speaker 01: Well, that's true. [00:37:30] Speaker 01: This is not the sort of piecework situation where, say, you're producing widgets, and if you come up with a more efficient technique to produce widgets, you can make more money. [00:37:40] Speaker 00: I'm going to ask you – sorry, the question that I asked Mr. Bassam, which is, what else is at stake here from your perspective? [00:37:52] Speaker 00: It just seems like a curious case. [00:38:11] Speaker 01: There's some of the officials in Episcopal, you know, making less money, you know, making $100 a game or something along those lines. [00:38:33] Speaker 01: And that seemed to be one of the motivating factors. [00:38:39] Speaker 01: I think the relevant question to the court is that they support. [00:38:43] Speaker 00: I'm not asking that so much as, you know, the agency, the employer, employee versus contractor has a lot of other footprints in the law and whether there are any areas that you administer where there are analogous inquiries where this is either supported or would spill over to them. [00:39:13] Speaker 01: It was a similar situation just in terms of the formal relationship. [00:39:18] Speaker 01: I think Lancaster City Orchestra is a very personality even though there are distinctions. [00:39:23] Speaker 01: In that case where you have skilled individuals who can choose when or when they don't work and they come in for a relatively brief out of the year and have relatively brief assignments. [00:39:37] Speaker 01: I also thank you now. [00:39:38] Speaker 01: Supreme Court seminal case on this question is a very mild situation where you have individuals who go out into the field, and they are not supervised when they're making the key decisions. [00:39:49] Speaker 01: In that case, it was negotiating and selling insurance policies to individuals, which took a certain amount of expertise. [00:39:57] Speaker 01: There was no supervisor sitting over their shoulder telling them whether what they were doing was right or wrong. [00:40:03] Speaker 01: But the Supreme Court very clearly held that the fact that the employer never [00:40:08] Speaker 01: maintain some kind of back end review and, in fact, would consider customer complaints very similar to the school events during the regular season here. [00:40:18] Speaker 01: But that was – that was – showed employee stats. [00:40:23] Speaker 01: In fact, here we also have the postseason where it's even more clear because P.A. [00:40:28] Speaker 01: cuts off the schools in time and actually directs the officials directing. [00:40:33] Speaker 01: And I see that [00:40:35] Speaker 01: If there's any questions about the political sun division issue, I'm happy to answer them. [00:40:41] Speaker 03: What about Mr. Baskin's point that under Article 6, Section 2A, B, C, et cetera, et cetera, these are many members of the board are representatives of associations of [00:41:00] Speaker 03: And are employed by the state as school administrators, school teachers, school coaches, et cetera. [00:41:11] Speaker 01: Yes, well, I think if you read the PA application closely, there's no individuals [00:41:28] Speaker 01: simply insufficient evidence as to the school employment of these individuals, and certainly nothing in the Constitution itself requires public school employment. [00:41:39] Speaker 01: Now, one appointment from the Secretary of Education and a provision that references a second appointment [00:41:58] Speaker 01: of City University of New York case. [00:42:02] Speaker 01: In that case, you have an entity affiliated with a public university, and the majority of the members on the board of directors happen to be employees of the public university. [00:42:13] Speaker 01: But what the board explained in that case is that they [00:42:20] Speaker 01: a third party entity becomes a third party entity and they simply happen to also be public employees. [00:42:26] Speaker 03: That does not mean that they are... Well, but I will ask Mr. Baskin so he's prepared on the public employee part, but he also pointed out that they have to be employed. [00:42:36] Speaker 03: That's required by the Constitution, right? [00:42:41] Speaker 03: Well, they need to be a public school. [00:42:46] Speaker 01: There's no question. [00:42:47] Speaker 01: They need to be a public school. [00:42:48] Speaker 01: And there's also the provision which says even if they're [00:42:52] Speaker 01: board until the next round of elections. [00:42:55] Speaker 01: And what's important is it goes to this broader point again, that simply because you're a public employee while you're serving on this extracurricular board, that does not make you responsible to public officials in the meeting of the Hawkins County Prong, too. [00:43:11] Speaker 01: Because the public institutions have no more important to this [00:43:20] Speaker 01: while you're on this board. [00:43:22] Speaker 01: They have no authority to remove you from the board. [00:43:25] Speaker 03: So that simply is not... Well, they can remove you by removing you as an employee. [00:43:30] Speaker 03: Well, they can. [00:43:32] Speaker 03: If you get fired from your public school employment, you remain the board of directors of PIA for next round of elections. [00:43:38] Speaker 03: That discretion of the PIA. [00:43:42] Speaker 03: familiar to this PIA board of directors. [00:43:45] Speaker 01: An individual school cannot force an individual off of the board of directors if it wants them off and if it disagrees with the decision-making as unlikely as that scenario is in the first place. [00:43:59] Speaker 00: This may be a question more for Mr. Baskin, but is the relationship between PIAA and the National Federation of High School Associations a volunteer? [00:44:09] Speaker 00: Like, has PIAA chosen that, or has the High School – the Federation of High School Associations hired PIAA? [00:44:17] Speaker 01: My understanding is that the National Federation of High [00:44:41] Speaker 01: he stepped because it's a voluntary relationship that he entered into. [00:44:48] Speaker 01: So there's only notes that this hot duty dictates anything regarding the officials who are at issue in this case. [00:45:01] Speaker 01: Unless there are any further questions, I believe the interview was three minutes. [00:45:05] Speaker 01: Follow me. [00:45:08] Speaker 03: Yeah, can I just ask one more question? [00:45:09] Speaker 03: Sure. [00:45:10] Speaker 03: Again, on this question of the membership under the Pennsylvania statute, which requires the Association to adopt certain things with respect to the Board, ensure that the membership of its Board of Directors include the following. [00:45:26] Speaker 03: It says one member representing school boards of directors who is an elected member of a school board of directors. [00:45:32] Speaker 03: Doesn't that suggest public or private school boards? [00:45:38] Speaker 01: That's the one you're talking about. [00:45:53] Speaker 01: and interest groups needed to have representatives. [00:45:55] Speaker 01: So, for example, it needed to be an interest group representative of the Public School Board Association of Pennsylvania. [00:46:03] Speaker 01: But as we explain it... [00:46:07] Speaker 01: similar to P.A. [00:46:09] Speaker 01: itself. [00:46:09] Speaker 01: It does not mean that the employer is right with no evidence and just actually bothered because it did not make this argument before the board that the state has an actual appointment of individuals and there are consequences to the board. [00:46:25] Speaker 01: P.A. [00:46:25] Speaker 01: explicitly that the state is not involved in the appointments of the employers making that is that even though the state has no involvement in the appointment, [00:46:36] Speaker 01: who are appointed not by the state, may be public school employees. [00:46:42] Speaker 01: But again, it's simply not the case under Hawkins County in this corresponding decision in the MMC, where this court affirms an inquiry as whether you are appointable by, movable by, public officials. [00:46:55] Speaker 01: So it does not matter if you happen to be a public employee if you are not appointed to the extracurricular board by [00:47:04] Speaker 01: you know, your public employer itself, which is not the case here. [00:47:09] Speaker 03: Okay, thank you. [00:47:10] Speaker 03: I think you're right. [00:47:11] Speaker 03: We did forget that we have an intervener. [00:47:13] Speaker 03: Sorry about that. [00:47:14] Speaker 03: I apologize for not mentioning it. [00:47:16] Speaker 03: Oh, no, it's my fault. [00:47:19] Speaker 03: Mr. Schwarzwald? [00:47:25] Speaker 03: If you think DNL will be adequately handled, you don't have to say any more. [00:47:30] Speaker 06: There are a few things I'd like to comment about and try and stay within my time limit, Your Honor. [00:47:35] Speaker 06: First of all, as was just being pointed out by counsel for the board, these groups that appoint members of the PIAA board are not public bodies. [00:47:44] Speaker 06: They are associations that have been formed of athletic directors or whatever by their own means for their own purposes, but they're not public purposes, they're not public bodies. [00:47:55] Speaker 06: So we don't think under Hardin County that [00:47:57] Speaker 06: there's any real argument that this PIA should be treated as a public body. [00:48:04] Speaker 06: So we think that that is clear. [00:48:08] Speaker 06: There was a question, two other things I'd like to address. [00:48:11] Speaker 06: One question was, what is at stake here? [00:48:14] Speaker 06: I mean, if you look, [00:48:17] Speaker 06: particularly at the amicus brief that was filed, the Association of Minor League Umpires, which is a local union of the Office of Professional Employees International Union, the same union that's seeking to organize these employees. [00:48:31] Speaker 06: And they represent referees, excuse me, umpires all the way through baseball except for professional baseball. [00:48:39] Speaker 06: But in that brief, they pointed out all the other sports [00:48:43] Speaker 06: that have the cases that indicate that these people are represented even though they are very much like these officials. [00:48:52] Speaker 06: They work part-time. [00:48:53] Speaker 06: The people that work football on weekends often have other careers and jobs, and these are other things that they do. [00:49:00] Speaker 06: And they point out [00:49:02] Speaker 06: Baseball is, of course, the umpire's association in baseball. [00:49:06] Speaker 06: Football, the NFL officials, arena football, soccer, the NBA basketball and golf, officials in all those different spirits are organized. [00:49:19] Speaker 06: and are treated as employees even though they have the same right that these officials have, which is they control the game and make the decisions about what is going on in the field. [00:49:31] Speaker 03: Do any of them have a short time of being paid by the association? [00:49:36] Speaker 06: Well, for example, the NFL people work on weekends. [00:49:40] Speaker 06: They may work more games, but that's because it's a sport with a longer season than this particular across season. [00:49:48] Speaker 06: In this case, there are a number of officials who work more than one sport, some as many as eight different sports. [00:49:55] Speaker 06: So over the course of a year, they may work a great deal under PIA's auspices. [00:50:01] Speaker 06: But each sport has its own season, which is set by PIAA. [00:50:07] Speaker 00: And the unit that's seeking representation is the lacrosse officials, not a broader unit. [00:50:13] Speaker 06: Well, that's right. [00:50:13] Speaker 06: But the lacrosse officials are one unit. [00:50:17] Speaker 06: You know, if a position is upheld, one can organize officials in other sports. [00:50:25] Speaker 06: And there are individuals who do take part in more than one sport as officials. [00:50:33] Speaker 03: Are there any, I'm sorry, just to go back to this question, I appreciate the point about weekends, but how many games are we talking about where they're actually paid by the PIA? [00:50:44] Speaker 06: The season, I think, if you're across, is like eight. [00:50:48] Speaker 06: eight weeks and there's maybe two or three games a week. [00:50:52] Speaker 06: I think the number I remember is between 20 and 24. [00:50:56] Speaker 03: But those aren't one where they're directly paid, right? [00:50:58] Speaker 03: Those are ones where the schools are paying. [00:51:00] Speaker 03: How many where they are directly paid? [00:51:03] Speaker 03: Well, those are, I think, [00:51:06] Speaker 06: Those are just the finals and I think there's no more than three, perhaps four games. [00:51:11] Speaker 06: I'm not sure how many steps it takes. [00:51:13] Speaker 03: One of the examples that you gave, are there others where the association that has been held to be the employer only actually itself pays for two or three games? [00:51:26] Speaker 03: Well, these are longer professional seasons. [00:51:31] Speaker 03: Usually they are longer seasons. [00:51:32] Speaker 03: Well, this is a longer season also. [00:51:34] Speaker 03: That is to eight weeks, but it seems unusual. [00:51:38] Speaker 03: And I'm just really asking whether it is unusual that for the vast bulk of the season, the payment comes from the schools. [00:51:46] Speaker 03: I understand the point, but I'm just asking as a fact question. [00:51:49] Speaker 03: Are there others where for all but two games the payment comes from the school rather than from the association? [00:51:58] Speaker 06: Well, the payment comes from the school because PIAA has mandated that. [00:52:04] Speaker 03: I understand that argument as well. [00:52:06] Speaker 03: I just want to, as a fact question, are these others that you're talking about, baseball, football, et cetera, are they paid by the school or are they paid by the association? [00:52:14] Speaker 03: In PIAA itself? [00:52:16] Speaker 03: Or any other example that you wanted, yeah. [00:52:19] Speaker 06: I believe in PIAA itself because of the way it is mandated. [00:52:23] Speaker 06: I see. [00:52:23] Speaker 06: that the schools do the payment except when it gets to the final state eliminations. [00:52:30] Speaker 03: And do you know with respect outside of Pennsylvania whether that's the way this is done? [00:52:35] Speaker 06: If you're talking about scholastic, scholastic officials have a series of different kinds of operations across the country, and I don't know enough about the details to know exactly what it is, but as I said, PIA specifically says the schools are to pay. [00:52:52] Speaker 06: That could be changed, in our view, under PIA's authority. [00:52:57] Speaker 06: And if we negotiated, we would probably want to change that. [00:53:00] Speaker 06: But that's something that it seems clear to us PIA has the authority to do because they told the schools you're to pay. [00:53:08] Speaker 06: That's done on their order and their specific statements. [00:53:14] Speaker 04: Thank you. [00:53:17] Speaker 03: Thank you. [00:53:18] Speaker 03: Mr. Baskin will give you another two minutes. [00:53:20] Speaker 03: Thank you. [00:53:21] Speaker 03: Can you just begin, if you wouldn't mind, by addressing those pages or what other pages you have from the joint appendix on the question of whether [00:53:32] Speaker 03: whether they actually do work outside of the lacrosse camps. [00:53:36] Speaker 02: Yes. [00:53:36] Speaker 02: Well, the Council for the Board correctly identified the pages that completely miscarried the testimony, which you actually caught on to. [00:53:46] Speaker 02: And I'm just looking at the question is, officials, are they officiating IPA events? [00:53:53] Speaker 02: Yes, they are. [00:53:54] Speaker 02: Do they sometimes do that? [00:53:55] Speaker 02: See, they're not. [00:53:56] Speaker 02: Absolutely. [00:53:57] Speaker 02: And then he lists a series of events [00:54:00] Speaker 02: to his knowledge, and specifically are they talking about La Crosse? [00:54:04] Speaker 02: Of course they are. [00:54:05] Speaker 02: He's going to testify about La Crosse. [00:54:07] Speaker 02: That's in line 21 on that page, talks about playing what happens if they go to Ohio or Pennsylvania. [00:54:14] Speaker 03: What about, I'm sorry, what about, again reading closely, it says absolutely they could officiate, they could officiate. [00:54:25] Speaker 02: Do you know of any that have jobs or careers beyond officiating lacrosse? [00:54:32] Speaker 02: Yes, absolutely. [00:54:34] Speaker 02: He doesn't complicate. [00:54:36] Speaker 02: I think the use of the word [00:54:40] Speaker 02: is the testimony in the record, then, I should add, not disputed by anybody. [00:54:46] Speaker 02: The union was right there with their officials. [00:54:48] Speaker 02: Nobody got a third of the testify to say, no, we're not allowed. [00:54:51] Speaker 02: We don't do it. [00:54:52] Speaker 02: In fact, the only testimony, the only record evidence is right here, and it's clear and undisputed. [00:55:00] Speaker 02: So to pretend that they are not able to do this is simply false. [00:55:15] Speaker 02: 37 and 95. [00:55:16] Speaker 02: Ninety-five is the actual schedule. [00:55:19] Speaker 02: You can count the days that they have just stated. [00:55:22] Speaker 02: And it's just this short round of playoffs. [00:55:24] Speaker 02: To distinguish it, two leagues, four games. [00:55:27] Speaker 02: And then, of course, not four games. [00:55:29] Speaker 02: It goes down to one game at the end, starting with a round of 16. [00:55:35] Speaker 02: And not the professional leagues. [00:55:37] Speaker 02: All these leagues are referenced by the amicus brief. [00:55:40] Speaker 02: I was almost going to call your attention to them in my argument. [00:55:42] Speaker 02: Because compared to them, they're [00:55:44] Speaker 02: That's what I'm saying. [00:55:48] Speaker 02: And I don't know where this concept came from, that the PIA is fresh with cash. [00:55:52] Speaker 02: There's no evidence of any type in the record about that. [00:55:54] Speaker 02: Where we have the baseball leagues, the NFL and the like, operate. [00:56:00] Speaker 02: And when you look at them, they have seasons where the Monty Myers case, which is cited, the report's in the record, that they work something like 150 games with two days off for the entire summer. [00:56:14] Speaker 02: That's completely false. [00:56:15] Speaker 02: what's going on in this case. [00:56:16] Speaker 02: These are high school and middle school athletics, a public service that the PLA is performing. [00:56:24] Speaker 02: And to compare it to professional really shows why this model that the board is now developing after 30 years of well-settled understandings under the Big East case, which even after it was professional, because it was college, but it was operational. [00:56:39] Speaker 02: This is a much stronger case even than the Big East situation. [00:56:44] Speaker 02: And I would [00:56:45] Speaker 03: Can I just pause over that? [00:56:47] Speaker 03: Do you know of any other [00:56:52] Speaker 03: Secondary school officials, anywhere else in the country who are regarded as employees for NLRA purposes? [00:57:01] Speaker 03: I did not lose information about certainly nothing. [00:57:05] Speaker 02: This is the first time it's ever happened at the board. [00:57:07] Speaker 02: And we have the unique history of the NFHS, which indicates that this would be a sea change around the country. [00:57:14] Speaker 02: So they clearly are concerned. [00:57:16] Speaker 02: Had an attempted look at all the other laws, particularly since the board was saying they don't count. [00:57:20] Speaker 02: They certainly should count for something in Pennsylvania. [00:57:24] Speaker 02: So I can't swear to it not [00:57:28] Speaker 02: guided by what the NFHS has said, which is that it really – the only implication one can take from that is it is not happening elsewhere. [00:57:36] Speaker 02: It should not happen elsewhere. [00:57:38] Speaker 02: That's why this case is improved. [00:57:42] Speaker 02: And it is certainly the first time that it's happened with the board. [00:57:46] Speaker 02: I want to come back to the notion of the 200 private schools that are on the PIA membership. [00:57:53] Speaker 02: Unmentioned is that there are 1,400 [00:57:57] Speaker 02: schools, of which 85 percent of them are public schools. [00:58:04] Speaker 02: As a result, not a single private school is on the board, was on the board in 2015 when this case went through, one member who was required to be on the board because of the legislation. [00:58:18] Speaker 02: This is all a function of the very formation of PIAA. [00:58:22] Speaker 02: It was started by all the public schools to keep them straight. [00:58:26] Speaker 02: Then there was a limited exemption to allow certain qualified schools, private schools, to come in, but they have always been a small minority. [00:58:36] Speaker 02: So when he then went into it, there's no telling why. [00:58:41] Speaker 02: that they're not really there because they're public employees or public officials. [00:58:45] Speaker 02: To the contrary, that's exactly why they're there. [00:58:47] Speaker 02: They're put on by a district committee, which itself consists of – and you have to go through all the rules in the Constitution to figure this out. [00:58:56] Speaker 02: It's a little convoluted. [00:58:57] Speaker 02: But there is testimony about it in the hearing as well. [00:59:01] Speaker 00: So district committees are themselves public bodies? [00:59:05] Speaker 02: Yes, they have designated per-interpretions, again dominated by the committees of the membership, districts of the membership. [00:59:14] Speaker 02: The membership is 85 percent. [00:59:16] Speaker 00: Oh, so they're not governmental bodies, they're committees of the membership. [00:59:26] Speaker 02: of the number of its – of representatives from the district to the board. [00:59:31] Speaker 02: And as a result of that, the public schools have a controlling interest guaranteed regardless of these additional constituencies that have been added in over time. [00:59:44] Speaker 03: section that you refer to the Constitution, the Pennsylvania School Boards Association, the Pennsylvania School Boards Association again, Pennsylvania Association of School Administrators, Pennsylvania Association of Secondary School Principals, the Pennsylvania State Athletic Directors Association. [01:00:02] Speaker 03: Are those public bodies? [01:00:08] Speaker 02: not tax-exempt organizations like PLA itself, but they're not consistent entirely of the different constituencies. [01:00:18] Speaker 02: They are representative just as they would have standing to sue under representation of the interests of, for example, school boards. [01:00:26] Speaker 03: Well, would they be regarded as public entities of Pennsylvania or just private entities that have members who are [01:00:39] Speaker 00: Not all, not all. [01:00:41] Speaker 00: They're the schools, and most of the schools, as we know, are public, but the membership are the schools. [01:00:47] Speaker 00: The criterion is not publicness. [01:00:50] Speaker 00: The criteria is being a secondary educational institution, right? [01:00:56] Speaker 02: Representative of the school boards. [01:00:58] Speaker 02: School boards are public. [01:01:02] Speaker 03: So by analogy, there is a National Association of Assistant U.S. [01:01:06] Speaker 03: Attorneys, every member of which is an Assistant U.S. [01:01:09] Speaker 03: Attorney and therefore a federal official. [01:01:11] Speaker 03: But no one thinks that the National Association itself [01:01:15] Speaker 03: is a federal agency or any other kind of agency. [01:01:18] Speaker 03: Is this analogous or not analogous? [01:01:22] Speaker 02: that they are public bodies themselves, but that they represent public bodies, and that, therefore, they are bound to select public officials and employees of public officials. [01:01:34] Speaker 02: The school boards that are overriding the public school boards, you just cannot ignore them. [01:01:40] Speaker 02: The board should not ignore the realities of the situation. [01:01:43] Speaker 02: And they say it again today. [01:01:44] Speaker 02: The only public official is this state official who's designated with school boards. [01:01:50] Speaker 02: officials also, and the employees who are members of the PIA board are required up the chain to these screw boards. [01:01:59] Speaker 02: So that's another avenue of the pregnant. [01:02:03] Speaker 02: And I would probably do the Northland Community Health case, another board case, in which 216 board members of an otherwise private entity were appointed by local boards of supervisors. [01:02:16] Speaker 02: And the – and sort of the analysis of the [01:02:20] Speaker 02: The board has it, and they just were deliberately obtuse in the decision, which was not the board's decision. [01:02:27] Speaker 02: It was only the regional director. [01:02:29] Speaker 02: The board itself never will. [01:02:31] Speaker 02: They did not grant the request for review on that point. [01:02:33] Speaker 02: There are purposes that's effectively affirming it, though, right? [01:02:36] Speaker 02: But they did not wrestle with the statutory issue, which we cited the case that says they're supposed to do that. [01:02:42] Speaker 02: If they haven't, you should have a minimum remanded to let them do it. [01:02:47] Speaker 03: I don't think this is important. [01:02:50] Speaker 03: But if the board affirms a judgment of an ALJ and the ALJ wrestles with this issue, that would be sufficient in terms of wrestling. [01:03:03] Speaker 03: We don't require the board itself to do the wrestling. [01:03:06] Speaker 03: There's a difference. [01:03:07] Speaker 02: The old general position decision exceptions are fact, and the board must consider those. [01:03:12] Speaker 02: In a request-for-review situation through the regional director in an election, it's discretionary of the board whether to grant the review. [01:03:20] Speaker 02: And only then do they get a brief on the merits. [01:03:23] Speaker 02: So they did not address the merits. [01:03:25] Speaker 02: Even though we dropped the law, we informed the regional director, they did not grant the request-for-review. [01:03:31] Speaker 02: So they can't now claim that they considered this seriously. [01:03:36] Speaker 02: And if you read his very well-reasoned opinion, he hit spirit rightly on this issue of what are you talking about in the public officials? [01:03:44] Speaker 02: The entire record of the PLA consists of public officials and employees of public officials. [01:03:49] Speaker 03: So, and the vast majority of the 85... Let me just ask, do you have more questions? [01:03:55] Speaker 03: Okay, why don't you have eight minutes? [01:03:56] Speaker 03: I appreciate your time. [01:03:57] Speaker 03: All right, thank you. [01:03:58] Speaker 03: We'll take the matter under submission.