[00:00:01] Speaker 00: Case number 20-5223 Ed Al, American Federation of Labor and Congress of Industrial Organizations versus National Labor Relations Board, a balance. [00:00:12] Speaker 00: Mr. Thomas for the balance, jurisdictional issues. [00:00:15] Speaker 00: Mr. Weiss for the balance, merits issues. [00:00:18] Speaker 00: Mr. Ginsburg for the appellee. [00:00:21] Speaker 06: Good morning, counsel. [00:00:22] Speaker 06: Mr. Thomas, please proceed when you're ready. [00:00:24] Speaker 04: Good morning, your honor. [00:00:25] Speaker 04: May it please the court, Paul Thomas for the National Labor Relations Board. [00:00:28] Speaker 04: This case presents a jurisdictional question of critical importance for the NLRB and the parties who appear before it. [00:00:34] Speaker 04: Namely, is this court's jurisdiction over challenges to rulemaking original or appellate? [00:00:39] Speaker 04: Under this court's decisions and Investment Company Institute and New York Republican State Committee, the answer is original. [00:00:46] Speaker 04: The NLRA's judicial review statute, section 10f, is ambiguous as to whether it covers rulemaking. [00:00:51] Speaker 04: And under those cases, ambiguities should be construed to avoid a bifurcated review process [00:00:57] Speaker 04: whereby some types of review go to the court of appeals and others to the district court. [00:01:02] Speaker 04: Accordingly, we asked this court to convert this case to an original petition for review. [00:01:06] Speaker 03: Mr. Thomas, can you tell me why the board has changed its position on this jurisdictional issue? [00:01:13] Speaker 03: And I think the board doesn't contest that rule makings, you know, challenges to rule makings have always previously been brought in district court. [00:01:22] Speaker 03: So why the, you know, what's caused the board to rethink this jurisdictional question? [00:01:28] Speaker 04: So first, the premise of your question is correct, Your Honor, the board has, [00:01:35] Speaker 04: Certainly, the prior prior challenges to rulemaking have proceeded in district court. [00:01:39] Speaker 04: I think the basis for the NLRB's change of views on this issue is largely down to the court's decision in New York's Republican State Committee and its re-emphasis on the [00:01:54] Speaker 04: the preferred avoidance of bifurcated judicial review proceedings. [00:02:00] Speaker 04: That case, I believe, issued after the most recent litigated NLRB. [00:02:04] Speaker 04: There've only been a few litigated NLRB rulemakings in the past, and it issued, I believe, after the most recent one of those was litigated. [00:02:10] Speaker 03: But even in that case, it says absent affirm indication that Congress so intended, right? [00:02:17] Speaker 03: So there might be a presumption, but the presumption only applies based on the text of the statute. [00:02:25] Speaker 04: That's correct, your honor. [00:02:27] Speaker 04: The presumption can be rebutted by a firm indication on the part of Congress that it intended for a bifurcated review structure to hold. [00:02:37] Speaker 04: And there are a number of this court's cases that find such a firm intent in the context of, for instance, statutes that specifically isolate rulemakings under certain provisions of the statutes and then implicitly exclude rulemakings under other parts of the statutes. [00:02:53] Speaker 04: That's not the statute that we have here. [00:02:55] Speaker 04: The statute that we have here by its terms applies to final orders of the board, but it does not say for instance final labor practice orders. [00:03:06] Speaker 04: So, in our view that the text of section 10 F the act does permit a finding that it applies to rulemaking, doesn't necessarily command a finding that applies to rulemaking so we're not going that far but it does permit a finding that applies to rulemaking. [00:03:19] Speaker 04: And the act context provides no firm indication of a congressional intent to bifurcate review. [00:03:26] Speaker 04: section the reason why when we know the reason why section 10 up was placed within section 10 of the act and the reason why is the reason that the supreme court articulated in the original afl case in 1940 which is that judicial review was placed in section 10 of the act in order to ensure that it could not be employed to to review certificates of election results which the congress found and it's discussed extensively in the act's legislative history [00:03:51] Speaker 04: the Congress found that courts were delaying certifications of unions under the precursors to Section 9 of the Act. [00:04:00] Speaker 04: And Congress wanted to avoid judicial review of those types of certifications. [00:04:05] Speaker 04: It was not considering judicial review of rulemaking when it structured judicial review provisions. [00:04:10] Speaker 04: And as this court articulated in New York Republican State Committee, there are a lot of statutes from that era of history, of congressional history, [00:04:19] Speaker 04: Don't directly address the issue of where rulemaking jurisdiction is to be located because Congress wasn't considering issue. [00:04:26] Speaker 04: And finally, not just them. [00:04:28] Speaker 06: Go ahead, please. [00:04:31] Speaker 01: Isn't the question not just rulemaking versus orders, but this provision that you rely on on direct review here in this court is in the whole part of the act that deals with unfair labor practices and it references unfair labor practices in a manner that really makes it appear that the direct review to us was limited to unfair labor practice cases. [00:04:58] Speaker 04: So it's certainly true. [00:05:01] Speaker 04: So there's two issues there, Your Honor, that I would like to unpack. [00:05:04] Speaker 04: So the first is the issue of where it's located in the statute. [00:05:07] Speaker 04: And that, I think, is addressed by the point that I was making regarding the desire of Congress basically to exclude judicial review of Section 9 certification proceedings. [00:05:17] Speaker 04: The second is the Act's venue clause, and that I will admit is the best argument that AFL-CAO has, is that the Act's venue provision does say the unfair labor practice in question. [00:05:30] Speaker 04: However, the Act has a highly flexible venue provision that provides for venue in a variety of different circuits. [00:05:40] Speaker 04: And in particular, it provides for review anywhere that the respondent resides or transacts business. [00:05:47] Speaker 04: It's actually very difficult. [00:05:48] Speaker 04: It's not impossible, but it's very difficult to come up with an unfair labor practice case that actually implicates the unfair labor practice in question venue provision and our view allowing the [00:06:03] Speaker 04: the mouse hole of a venue provision relating to a particular very narrow factual circumstance to contain the elephant of requiring that judicial review of rule makings be conducted in district courts is a bridge too far. [00:06:20] Speaker 06: Even if it doesn't practically, I take it that what you're saying now is it may not practically be implicated very often, but even if that's true, [00:06:29] Speaker 06: The language, I mean, as you sort of acknowledge, it doesn't even say we're in any unfair labor practice occurred. [00:06:38] Speaker 06: It's the unfair labor practice in question occurred, which makes it sound like that's the universe of things that are being contemplated is unfair labor practices. [00:06:45] Speaker 06: And then you'd look to see where the particular one in question occurred, and that gives you a venue to hold. [00:06:50] Speaker 06: Even if it's a practical matter, that particular prong of this may not come into play in every case, [00:06:58] Speaker 06: It appears to contemplate that that's the universe of orders that are being considered. [00:07:05] Speaker 04: So what I would say in response to that, Your Honor, is that the definite article in that section of the statute has never been interpreted literally. [00:07:17] Speaker 04: For instance, there are a number of cases where you might have multiple inter-labor practices occurring in multiple different venues. [00:07:26] Speaker 04: So I don't think that the choice of the definite article there has ever really been found to be of significance. [00:07:36] Speaker 04: But the key point that I want to reemphasize here in regards to the issue of the [00:07:48] Speaker 04: I guess in regards to the to the venue issue is that the we we don't think that the um venue provision is is like we agree that it's evidence in support of aflco's position what we don't agree with aflco on is that it's sufficient evidence to to be dispositive and to overcome the presumption the powerful presumption in favor of not bifurcating judicial review so we we agree that it points in the direction that they're saying points in which don't think the magnitude is sufficient to [00:08:18] Speaker 04: carry the day here. [00:08:20] Speaker 04: And if I just one final point, your honors, and I see my time has expired, which is that the the when you look at the overall structure of the act, it displays a clear preference by Congress to avoid the devoid policymaking by district courts on Labor Act issues. [00:08:40] Speaker 04: District courts are given very ancillary minor roles into the act that don't involve adjudication of [00:08:46] Speaker 04: questions on the merits of what is not permitted under the National Labor Relations Act. [00:08:50] Speaker 04: It would be an extremely anomalous result to find that those courts had jurisdiction over rulemakings, which would permit them to exercise a kind of jurisdiction that we don't think the 1935 Congress could ever have intended. [00:09:02] Speaker 03: Well, wasn't the APA, and the APA was enacted after the NLRA, right? [00:09:08] Speaker 03: Which ordinarily places review of rulemaking in district courts. [00:09:12] Speaker 04: That's correct, Your Honor. [00:09:14] Speaker 04: But I'm not sure whether that, I mean, one could argue that that actually plays in the favor of a finding that circuit court review should be permitted here because at the time of the act's passage, it wouldn't have been clear that judicial review in district courts was even necessarily available. [00:09:31] Speaker 04: Now, I know there was non-statutory review. [00:09:34] Speaker 04: I mean, that was before the merger of law and equity. [00:09:36] Speaker 04: I mean, it was a very different legal time period. [00:09:39] Speaker 04: But if anything, I think that might actually weigh in our favor. [00:09:45] Speaker 06: Okay. [00:09:45] Speaker 06: Unless my colleagues have further questions for you at this time, we'll hear from Mr. Weiss on the merits questions. [00:09:50] Speaker 06: Thank you, Mr. Thomas. [00:09:52] Speaker 05: Thank you. [00:09:56] Speaker 05: Thank you, Your Honors. [00:09:57] Speaker 05: Tyler Weiss on behalf of the National Labor Relations Board. [00:10:00] Speaker 05: May it please the court. [00:10:02] Speaker 05: With regard to the merits of this case, this matter concerns the procedures utilized by the NLRB in processing representation cases under section nine of the National Labor Relations Act. [00:10:13] Speaker 05: Consistent with the act and the guidance provided by the Supreme Court in cases such as Inland Empire v. Millis, the board has long established regulations governing the procedures to be utilized in representation matters. [00:10:25] Speaker 05: As recognized by the Supreme Court in AJ Tower shortly after the NLRA passed, these representation procedures necessarily involve the balancing of competing interests, such as accuracy in election results, efficiency in reaching final resolutions, and the speed in which these results can be reached. [00:10:44] Speaker 05: Here, the board reasonably exercised its judgment as it has on many other occasions in the past to modify its election procedures to better serve these competing interests. [00:10:54] Speaker 05: AFL-CIO's challenges to these rules ignore two key principles of administrative law. [00:10:59] Speaker 05: First, that these rules govern election procedures and change no substantive standards for what is required to obtain a certification from the board. [00:11:09] Speaker 05: And second, that it is the board and not AFL-CIO [00:11:12] Speaker 05: that is tasked with balancing the competing interests that inexorably occur in conducting board elections. [00:11:18] Speaker 05: Unless the court would like to proceed otherwise, I'd like to start with the notice and comment issue and the procedural nature of the board's rulemaking. [00:11:25] Speaker 05: So with respect to that issue, I think the best way to frame the board's rules is to look at them comprehensively and to ask three questions. [00:11:35] Speaker 05: First, what do the rules do? [00:11:37] Speaker 05: What the rules do in effect is they modify the procedures for board elections [00:11:42] Speaker 05: They reorder steps leading to certification, they change timeframes, and they adjust who is allowed to present positions to the agency. [00:11:50] Speaker 05: What they do not do is change any of the substantive standards required for obtaining the board certification. [00:11:58] Speaker 05: The second question is, why did the board pass these rules? [00:12:02] Speaker 05: And as the board exhaustively explained in its federal register entry, [00:12:05] Speaker 01: Mr. Weiss can you back up for a minute and just I don't know if you're able to shed any light on why the board decided in 2011 and again in 2014 to use notice and comment rulemaking and amending its representation procedures and I know that it in at least in 2014 it assiduously said it didn't think it was required to do so but but do you have any understanding of why that was done [00:12:30] Speaker 05: Your honor, to be honest, I don't have an answer to that direct question as to why the board sought notice and comment rulemaking other than to, again, highlight the point that you raised that even in 2014, the board did not feel that notice and comment was necessary. [00:12:44] Speaker 05: And then prior to both 2011 and 2014, the board had modified its representation case procedures on dozens of occasions and had never utilized notice and comment rulemaking in any of those cases. [00:12:59] Speaker 05: in prior matters. [00:13:01] Speaker 05: But beyond that, I can't speak to the 2014 board's motive and engaging in notice and comment rulemaking. [00:13:10] Speaker 05: But turning back to the agency's justification for why it passed these rules. [00:13:16] Speaker 05: These rules are justified by concerns of agency efficiency, uniformity, certainty of guidance to parties, and finality. [00:13:23] Speaker 05: They're part of a broader effort to organize and evaluate questions concerning representation [00:13:28] Speaker 05: in ways that are most efficient and most logical before the agency. [00:13:32] Speaker 05: If you look at the dozens of pages that the board drafted in the federal register, at no point is there any suggestion that these rules are passed to change outcomes in cases, change the substantive rights or the interests of the parties. [00:13:49] Speaker 05: And then the third question in looking at these rules is what are the effects? [00:13:53] Speaker 05: And in terms of the substance of the rules, the effects are nothing. [00:13:57] Speaker 05: As the board itself pointed out in footnote 17, prior rule changes dealing with timelines and similar issues addressed in these rules had no effect on union win rates. [00:14:08] Speaker 05: The rules here apply equally to certification elections and decertification elections. [00:14:13] Speaker 05: and apply equally to all parties. [00:14:15] Speaker 03: To the extent that these- Can I ask you a specific question about the certification timing change? [00:14:22] Speaker 03: There, the AFL-CIO talks about the right of recognitional picketing, which might be affected by the timing of the certification. [00:14:31] Speaker 03: Can you speak more to why that is not a substantive change? [00:14:37] Speaker 05: Certainly, your honor, and as we addressed in our briefing, we cited to a it's been long standing board precedent that the pendency of a representation case petition actually privileges, recognition of picking I believe the case is international hard carriers and then it was addressed. [00:14:57] Speaker 05: In our briefing, I believe in it. [00:14:59] Speaker 03: And by privileges, you mean that that such picketing can go on even while the certification is delayed. [00:15:05] Speaker 03: If the certification is delayed. [00:15:06] Speaker 03: So there's no substantive impact on the picketing. [00:15:10] Speaker 05: That's absolutely correct, Your Honor. [00:15:14] Speaker 01: Mr. Reese, you refer to these as certification case procedures. [00:15:20] Speaker 01: I think in the brief, it actually referred to them as election procedures. [00:15:23] Speaker 01: And it seems like there's a lot [00:15:25] Speaker 01: of daylight or different spin on them, depending on how you think of it. [00:15:32] Speaker 01: I mean, the challengers here refer to time for campaigning among potential members of a unit. [00:15:46] Speaker 01: They refer to the period of time under which they function represented by their chosen [00:15:54] Speaker 01: Union, and those are all things that are really at the heart of what the Act protects. [00:16:00] Speaker 01: So you can say it just has to do with timing, but they're talking about the timing of the very ultimate entitlements that the Act is about. [00:16:15] Speaker 01: Why isn't that a reason when we're obligated to construe exceptions to notice and comment rulemaking narrowly, why isn't that a reason to say, well, this isn't really limited to agency procedure? [00:16:29] Speaker 05: Well, Your Honor, a couple of points in response to that. [00:16:33] Speaker 05: First, I believe with regard to the time for campaigning issue, which I think generally attaches to the extension of time between [00:16:43] Speaker 05: the decision and direction of election and the election itself. [00:16:48] Speaker 05: That extension of time applies equally to all parties. [00:16:51] Speaker 05: It gives the union additional time to campaign and it gives the employer additional time to campaign. [00:16:56] Speaker 05: Now that's not the justification for the board's rule. [00:17:00] Speaker 05: The justification is that the board wanted to have more time internally to rule on requests for review before elections occurred. [00:17:09] Speaker 05: With regard to the, [00:17:12] Speaker 05: The second point, which I think attaches more to this. [00:17:14] Speaker 01: They talk about getting the member list, you know, and they do make this point that, you know, back in the 60s, five days was enough, even when we're dealing with paper records and U.S. [00:17:28] Speaker 01: Postal Service, surely five days is excessive when we're talking about an important period for contacting members. [00:17:39] Speaker 05: Yes, Your Honor, but a couple of points again in response to that. [00:17:43] Speaker 05: First is that given the corresponding extension in time between the petition being filed and the, or excuse me, the issuance of the decision and direction of election and the election, that the union actually has as much time or more time with that list between when they receive it and the election than they did [00:18:06] Speaker 05: under the prior rules. [00:18:08] Speaker 01: But it has a week less than the, or it has several days less than the employer. [00:18:13] Speaker 05: Well, the employer has that information by default, presumably. [00:18:17] Speaker 05: Exactly. [00:18:18] Speaker 01: Exactly. [00:18:18] Speaker 01: So the employer has the information ahead of the union, is what I'm saying. [00:18:23] Speaker 05: Yes, but that's the case regardless of the timeline of when the list is being provided. [00:18:29] Speaker 05: And I think it's important to look at the board's explanation for why the list [00:18:34] Speaker 05: why the time period for the list was extended. [00:18:36] Speaker 05: And that justification rests almost entirely on not having to rerun elections, which is an internal agency concern. [00:18:47] Speaker 05: What happens when there's inaccuracies in a voting list is that oftentimes the issue will be litigated. [00:18:54] Speaker 05: And then if those inaccuracies or issues in the list are substantiated, then the agency has to go back, do everything all over again, which obviously [00:19:03] Speaker 05: implicates substantial efficiency interests for the agency. [00:19:08] Speaker 01: And does the record identify any cases of that happening during the period under the shorter time? [00:19:19] Speaker 05: I apologize, Your Honor, not specifically, but the record does identify several cases in which the board [00:19:26] Speaker 05: uh, noted, uh, where employers had had difficulty, um, complying with the list, uh, given the short period of time, um, including, uh, I believe it was a 5,000 person bargaining unit with Harvard. [00:19:40] Speaker 05: Um, and then several other multi location units that are explained in the federal register. [00:19:46] Speaker 05: Um, and if I may, I'd like to, why does the rules on that? [00:19:50] Speaker 06: It's, it says absent extraordinary circumstances. [00:19:53] Speaker 06: So is that a, [00:19:54] Speaker 06: Is that an extraordinary circumstances caveat that was actually practically in use? [00:20:00] Speaker 05: I can't speak to the exact circumstances of the Harvard case in particular, whether that explicit exception was implicated in that list. [00:20:10] Speaker 05: My understanding is, and I may be mistaken, but I believe that the employer was able to comply with the list requirement. [00:20:25] Speaker 05: And I'd like to see that I'm out of time. [00:20:29] Speaker 05: So if the court would like me to address any of the other remaining issues in the case, I'd be happy to or I can continue. [00:20:37] Speaker 01: I'd like to hear about the statutory argument about the impounded ballots. [00:20:43] Speaker 01: Because as I read it, the rationale in the briefing and the rationale and the rule are quite different. [00:20:54] Speaker 05: Yes, your honor, there is some, I'll admit some daylight between what the board stated in the rule and what we have argued in briefing. [00:21:03] Speaker 05: But that being said, our arguments as to the meaning of section 3B are plain language arguments. [00:21:12] Speaker 05: They're arguments about what the statute of the text actually says. [00:21:16] Speaker 05: It's not a Chevron step two argument about deference being owed to the agency [00:21:22] Speaker 05: based off of its interpretation of the rule. [00:21:24] Speaker 05: What we're arguing is that the literal text of the statute, at least as our primary argument, that the literal text of the statute does not apply to what the board did here, that there is in fact no stay of an action taken by a regional director. [00:21:41] Speaker 05: And I think it's that word taken that carries all the weight in this case. [00:21:46] Speaker 05: Because if the statute said that [00:21:48] Speaker 05: If the statute prohibited stays of any action by the regional director, then you would have likely an issue because the impelment provision is affecting actions that are happening in the future. [00:22:00] Speaker 05: But when you add the word taken into the statute, the only natural meaning of that term [00:22:06] Speaker 05: is to apply it to actions that have already occurred. [00:22:08] Speaker 01: That's not the way that taken is used in that statute. [00:22:12] Speaker 01: That's a grammatical error. [00:22:14] Speaker 01: It's a past participle being used here to form the passive voice because it's like the actions that the regional director takes [00:22:25] Speaker 01: or actions taken by the regional director, it's just flipping the order of the sentence. [00:22:30] Speaker 01: And indeed, when you're talking about something like stay, typically, it's action that's either presently ongoing or upcoming. [00:22:39] Speaker 01: Because otherwise, if it's fait accompli, it's not really stay worthy at all. [00:22:45] Speaker 01: So it seems, actually, if we're looking at clear language, it seems like, and we had to choose a clear reading, it seems like a clearer reading is that taken is being used there in an adjectival [00:22:55] Speaker 01: form to allow the drafters to use a passive voice. [00:23:01] Speaker 01: And we've recognized that. [00:23:04] Speaker 01: I think the Supreme Court recognized that in the Penson versus Santander consumer, which I don't think a party cited, but it's 137, Supreme Court, 1718 at 1722. [00:23:15] Speaker 01: It's a 2017 case. [00:23:21] Speaker 01: explaining that it's technically a present tense when used that way. [00:23:28] Speaker 05: Well, thank you for that citation, Your Honor, and just a couple of brief points in response to that. [00:23:34] Speaker 05: The first is, in the event that the plain language doesn't answer the question presented by this issue, the board did explain briefly in its rule why the [00:23:48] Speaker 05: impoundment provision is not in fact to stay and that is because the, and this is actually at the deferred appendix page 210. [00:23:58] Speaker 05: There isn't a stay in this case because the election is going forward and that, you know, the regional directors continue to act. [00:24:06] Speaker 05: They're just, I believe that we're the, excuse me, the word the board uses [00:24:12] Speaker 05: is that it's simply postponing the count, is the board's. [00:24:17] Speaker 01: But it's the postponing of the count that is being, I mean, it's the count that's being stayed. [00:24:23] Speaker 01: And so that distinction on its face seems actually to actually make no sense at all. [00:24:31] Speaker 01: This is not a stay, it's just a postponement? [00:24:35] Speaker 05: In essence, that is what the board [00:24:37] Speaker 05: as said in its rulemaking. [00:24:39] Speaker 01: That's what I read it to be saying, and I didn't find that to be supportive of the rule. [00:24:46] Speaker 03: With respect to the board, though, the board would have the, the board has the authority to conduct elections itself, right, or it can delegate that authority to regional directors. [00:24:56] Speaker 05: That's correct. [00:24:57] Speaker 03: And so can they also, I mean, presumably since that authority to the regional director is only a delegated authority, they can also, the board can also condition how it delegates its authority to regional directors in the conduct of elections? [00:25:13] Speaker 05: That's absolutely correct, Your Honor, as was addressed by the Supreme Court in a case called magnesium casting that we cited in our brief, extensively discusses the 3B delegation by the board to regional directors. [00:25:28] Speaker 05: And just a practical point in response to Judge Pillard's questions, impoundment is something that occurs in board elections, regardless. [00:25:39] Speaker 05: It was the historical practice of the board for decades before the 2014 rules were enacted. [00:25:47] Speaker 05: In fact, under those rules, any time a request for review was filed, all ballots were impounded. [00:25:53] Speaker 05: Even under the 2014 rules, as the board discusses, [00:25:56] Speaker 05: ballots were being impounded at the end of elections to preserve important interests such as voter secrecy and ensuring that there wasn't a spoilage of the overall election based off of, for example, challenge voters. [00:26:10] Speaker 06: And so- When that happened, was that because the board was ordering that they be impounded? [00:26:17] Speaker 05: No, Your Honor. [00:26:17] Speaker 05: That was a product of the general counsel determining that impoundment was necessary. [00:26:24] Speaker 05: So the agency is bifurcated between [00:26:26] Speaker 05: the board and then the general counsel's office. [00:26:29] Speaker 05: And that was actually general counsel policy memo that directed the impoundment procedures under the 2014 rule. [00:26:37] Speaker 06: But not exercising board authority. [00:26:40] Speaker 06: So it's not an application of the statutory provision that says unless specifically ordered by the board. [00:26:46] Speaker 05: Well, I think that would depend on how the phrase the board is interpreted within the context of that statute. [00:26:54] Speaker 05: Sometimes the board [00:26:54] Speaker 05: is interpreted to mean the five member decision-making body. [00:26:57] Speaker 05: Sometimes the board is interpreted to mean other terms. [00:27:04] Speaker 03: How does the board, I mean, the general counsel is not the board, presumably. [00:27:10] Speaker 06: That's correct, your honor. [00:27:13] Speaker 06: So it's not an application of that provision. [00:27:16] Speaker 06: Because as you understand that provision, it doesn't, [00:27:21] Speaker 06: The general counsel is distinct from that. [00:27:23] Speaker 06: This was just the general understanding that was in effect, was that impoundment was just something that was available and it was being done. [00:27:32] Speaker 05: I believe that to be the case, Your Honor, if I'm understanding your question correctly. [00:27:36] Speaker 05: But I think the larger point that I wanted to make was simply a practical one, that impoundment is a necessary artifact of running representation elections in board proceedings. [00:27:48] Speaker 03: Did anyone challenge after 2014 the use of impoundment under the 2014 rule as being inconsistent with the statute? [00:27:59] Speaker 05: Not that I'm aware of, Your Honor. [00:28:00] Speaker 05: And in fact, under the board's historical practice, although I haven't done full research on it, I'm not aware of anybody making this particular argument in prior cases either, when there was an even broader impoundment provision that was in effect for decades. [00:28:16] Speaker 05: Those cases may exist, but I [00:28:20] Speaker 05: Thank you. [00:28:23] Speaker 06: Make sure my colleagues don't have additional questions for you, Mr. Weiss. [00:28:29] Speaker 06: Thank you. [00:28:31] Speaker 06: Thank you, Mr. Weiss. [00:28:32] Speaker 06: We'll hear from Mr. Ginsburg. [00:28:34] Speaker 02: Thank you, and may it please the court, Matthew Ginsburg, on behalf of the American Federation of Labor and Congress of Industrial Organizations. [00:28:42] Speaker 02: I'm, of course, happy to take any questions on jurisdiction. [00:28:44] Speaker 02: However, we brief the issue fully. [00:28:47] Speaker 02: And if there are no questions, I'd like to move directly to the merits as this court, whatever it decides on jurisdiction, will have to address the merits. [00:28:56] Speaker 02: If that's okay. [00:28:59] Speaker 02: Okay, great. [00:28:59] Speaker 02: So to begin, the district court was correct in its determination that notice and comment was required for the five provisions that we've challenged in this litigation. [00:29:09] Speaker 02: The challenge provisions all directly address how regulated parties engage in the primary conduct that's authorized by the National Labor Relations Act, how the parties seek employee support for or against certification of the union as the collective bargaining representative in board conducted elections. [00:29:26] Speaker 02: So in changing the rules in a manner that makes it more difficult for the union to win the election to win employee support and thus to obtain certification. [00:29:36] Speaker 02: Each provision encodes a substantive value judgment and alters the right and interest of the parties. [00:29:42] Speaker 02: And you can see this both from the very terms of what the board did in the rules themselves, as we've described in the briefing, as well as how the board has explained what it was doing. [00:29:51] Speaker 02: And I want to just, I may be limited in time in addressing each single rule, but I wanted to start with the rule concerning the determination of individual eligibility as a prerequisite to obtaining an election. [00:30:06] Speaker 02: So the board's rule says that normally every individual eligibility must be determined under the new rule, and that is not required by the National Labor Relations Act. [00:30:19] Speaker 02: Frequently, the status of individuals as supervisors or as in or out of the unit are non-determinative of the outcome of the election. [00:30:28] Speaker 02: And in those cases, which occur regularly, the parties typically resolve such issues in collective bargaining subsequently, if the union, in fact, wins the election. [00:30:39] Speaker 02: And of course, if the union doesn't win the election, then the issues are never resolved because they're not determinative. [00:30:46] Speaker 02: So in and of itself, the board has interposed an additional- Wait a minute, they're never resolved. [00:30:52] Speaker 01: So you end up having the- [00:30:55] Speaker 01: employer and the union effectively by agreement, including people in a unit that the law does not support should be included. [00:31:08] Speaker 02: Well, let me just step back. [00:31:13] Speaker 02: So the purpose of the act is to encourage and promote collective bargaining. [00:31:17] Speaker 02: And so there is a bias towards the parties working these issues out themselves. [00:31:22] Speaker 02: And as a practical matter, that's what they do. [00:31:24] Speaker 02: And so the question of whether, for example, an individual employee, to use the board's example from the reply brief mechanics, [00:31:31] Speaker 02: In a broader unit should or should not be included in the unit typically is I mean there are other mechanisms but typically is resolved by the parties and collective bargaining, if the inclusion of those I think their example was three or five mechanics is not determinative of the outcome of the election and that's. [00:31:48] Speaker 02: That's always been how, as a practical matter, it's worked. [00:31:52] Speaker 02: And I think part of what goes into that is the thought that the employer and the union are bargaining about the relationship around the bargaining unit and that individuals come and go. [00:32:04] Speaker 02: People leave employment, come to employment, and their particular status, depending on who the person is, may change. [00:32:10] Speaker 02: But what's really at stake ultimately in the bargaining is a definition of what the bargaining unit is and who is in and who is out. [00:32:18] Speaker 01: But aren't there employees whose status legally preclude them from being included like a manager or a supervisor and if somebody if there's a dispute over whether let's say cashiers are managers and the [00:32:34] Speaker 01: union gets voted in and the employer just says, I got other fish to fry, this way at least I'll be able to communicate with a broader number of workers through these pesky union representatives and they skip over that, then you're really having union representation for people who are not legitimately covered by the act. [00:32:58] Speaker 02: That is a possibility in the universe of possibilities. [00:33:02] Speaker 02: I think in most cases, the parties agreed to exclude supervisors because obviously if the employer really wanted to go to the wall on the issue, they could go to the board and have them declared ineligible. [00:33:15] Speaker 02: But again, what is at stake? [00:33:19] Speaker 01: Can individuals go to the board and say, I am a supervisor, I shouldn't be included? [00:33:23] Speaker 01: Or is that something that's only for the board to do? [00:33:26] Speaker 02: The parties would, I don't believe there would be any standing for an individual to go and say, I shouldn't be in a bargaining unit. [00:33:35] Speaker 02: So what's at stake here is that the board has interposed a new process, a new requirement that the petitioning party, oftentimes the union, must show in order to get to the election. [00:33:46] Speaker 02: And not only is this actually a substantive requirement that the union has to overcome to get to the election, but the board actually justifies the provision on a substantive basis. [00:34:00] Speaker 02: And this echoes what Judge Pollard, you were just referring to. [00:34:03] Speaker 02: saying that this is important because we have to resolve issues of supervisory status before the election to know who speaks for management. [00:34:11] Speaker 02: That's an issue of how the parties communicate with voters. [00:34:14] Speaker 02: And I guess I'm not here to say that might not in certain circumstances be an important issue to resolve, but that is a substantive basis for this change and one that ought to have been subjected to notice and comment how the board goes about [00:34:30] Speaker 02: determining when it is important to decide these issues prior to an election? [00:34:34] Speaker 01: We have a certain perspective, and I'm sure it's distorted since, as the briefing emphasizes, only 10% of elections go forward other than by agreement to procedures. [00:34:50] Speaker 01: But we've had cases that were litigating, for example, the question of who's a supervisor. [00:34:56] Speaker 01: And they took years, right? [00:34:59] Speaker 01: Because they go before the board and they go to us. [00:35:02] Speaker 01: And so in a case like that under this rule, would the election be on hold for all that time? [00:35:13] Speaker 02: Potentially. [00:35:14] Speaker 02: And that goes to the interplay. [00:35:15] Speaker 02: And maybe that's a good segue for me to move to the certification rule. [00:35:20] Speaker 02: which relates and which the court has asked my friend about as well. [00:35:26] Speaker 02: So the certification rule. [00:35:29] Speaker 06: Before you, I think this will facilitate the transition too, I think. [00:35:32] Speaker 06: But our decisions on the drawing the line between procedure and substance [00:35:38] Speaker 06: in this context, I think recognize that it's not a black and white principle, that there's fluidity there and you have to take into account some contextual considerations. [00:35:48] Speaker 06: But one common theme is that, one common recognition is that procedural changes can beget substantive consequences, but that still doesn't make them non-procedural. [00:35:59] Speaker 06: And the easy one that's substantive is when the ultimate substantive standard is in fact changed, everybody agrees that's substantive. [00:36:07] Speaker 06: And both on the one that you just talked about and the one that you're going to talk about, I don't think the ultimate substantive standard changed because the standard for issuing certification still remains the same. [00:36:20] Speaker 06: Now, the fact that certain issues have to be worked out in a different temporal space can have substantive implications. [00:36:30] Speaker 06: But the question that is in my mind is, how do we know whether this is a procedural change [00:36:37] Speaker 06: that has, because I think everybody also agrees that you can call these procedural changes. [00:36:41] Speaker 06: And then the question is, is it a procedural change that doesn't involve a change of the substantive standard, but still has the kind of substantive effect that would render it categorized as substantive rather than procedural? [00:36:54] Speaker 06: Because what you said so far, I think still doesn't deny that the substantive standard at the end of the day didn't change. [00:37:00] Speaker 06: What you're sort of saying is that this has substantive implications, and from your perspective, important ones, and it's just [00:37:07] Speaker 06: For our purposes, we have to figure out whether those kinds of substantive implications are enough. [00:37:13] Speaker 02: Yes. [00:37:14] Speaker 02: Okay, so I'm going to, so I'm going to quarrel a little bit with the question. [00:37:19] Speaker 02: I do think by requiring [00:37:22] Speaker 02: the board to determine individual eligibility issues in all cases, that that is a change to substantive standards. [00:37:29] Speaker 02: Because as I've explained, in the vast run of cases, those individual eligibility issues, when they're non-determinative, which they typically are, not always, but typically are, never are resolved by the board. [00:37:42] Speaker 02: So now they've said, you must do this. [00:37:44] Speaker 02: This is something new that was not true before. [00:37:47] Speaker 02: But even if I were to accept your premise that that could be categorized as a procedural change, [00:37:52] Speaker 06: Because I think procedural changes and it's just true that sometimes there are procedural changes that result in issues being decided that may not have been decided before because it's still a procedural change. [00:38:04] Speaker 06: Any timing issue can mean that an issue that would have been decided before isn't going to be decided now because somebody might be out of time under the old rule, but not under the new one or vice versa. [00:38:15] Speaker 02: I don't want to quarrel too much because I'd like to answer the other part of your question, but I will just a little bit more, which is that if the board were to have said before any election, we will order any election, we must determine the status of anyone the employer alleges to be a supervisor. [00:38:32] Speaker 02: I would argue that that was clearly a substantive change. [00:38:36] Speaker 02: It exists nowhere in the law. [00:38:37] Speaker 02: It's not about timing. [00:38:38] Speaker 02: It's about a substantive determination that must be made as a prerequisite to the election. [00:38:45] Speaker 02: And as I read the board's rule, that is, in effect, what they've done here. [00:38:48] Speaker 02: They say these individual issues must be determined before and give specifically the example of supervisors. [00:38:54] Speaker 02: So I'm quarreling. [00:38:56] Speaker 02: But to go to the second part of your question, the reason that even though one might characterize some of these provisions as procedural seen in a certain light, why they are substantive and should be subject to notice and comment rulemaking is because they all [00:39:12] Speaker 02: involve the primary conduct that's regulated by the act. [00:39:16] Speaker 02: So this is not about the timing of when a request for review must be filed or how many pages may be filed or whether a response is permitted, which are sort of the secondary aspects of the board's election procedure. [00:39:33] Speaker 02: These are the primary aspects. [00:39:34] Speaker 02: These are, can you get an election? [00:39:36] Speaker 02: What must be determined to get an election? [00:39:39] Speaker 02: When do you get the voter list, which provides the union, as the Supreme Court has said, with the equal access to speak to employees that the employer already has? [00:39:50] Speaker 02: What is the time period for campaigning between when the decision for election issues and when the election takes place? [00:39:56] Speaker 02: These are all the primary aspects of the process under the Act. [00:40:00] Speaker 01: Can you explain why three days on the voter list makes a difference? [00:40:05] Speaker 01: I understand that [00:40:07] Speaker 01: you care a lot about it, but from a distance, some of these, I have the impression from both parties that this is a much more intensely fought terrain than one might think. [00:40:22] Speaker 01: And it just, at least I would find it helpful to understand a little bit more about why that is. [00:40:29] Speaker 01: Not just the three days, but for example, the timing of the certification of election results as well. [00:40:35] Speaker 02: Yes. [00:40:36] Speaker 02: So on both, I'll take those in turn. [00:40:38] Speaker 02: So on the voter list. [00:40:40] Speaker 02: So obviously, as we've already been said, the employer has full access to the employees. [00:40:45] Speaker 02: What the employer may not know until soon before the petition is filed is that the employees are organizing a union. [00:40:51] Speaker 02: So as soon as that trigger occurs, the employer has [00:40:57] Speaker 02: it's the ability to campaign amongst its employees up and running, whereas the union is always playing catch up. [00:41:03] Speaker 02: And so you're talking about within a limited time period of the election campaign, the ability of the employer to get out ahead of the union in terms of communicating its message to employees. [00:41:16] Speaker 02: And in that sense, it's extremely significant. [00:41:19] Speaker 02: It would be as if in a political election, one party was said that you can't start campaigning until [00:41:24] Speaker 02: you know, five business days after the other party, we would, I think, all see that as being a significant impingement on the right of one party. [00:41:32] Speaker 03: Mr. Ginsburg, as you pointed out, the union has the advantage sometimes before the employer in terms of the employer may be unaware that employees are moving to organize or to unionize, right? [00:41:43] Speaker 03: So, I mean, there's a different advantage for the parties at different points. [00:41:50] Speaker 02: Again, not to be quarrelsome, but so the purpose of the voter list principally is that very typically the union does not have access to all of the employees or how to communicate with them. [00:42:00] Speaker 02: So they may have limited access, you know, depending on the workplace coming in and out of work, or there may be whole groups of employees who the union just isn't aware of until the list is turned over to the board and then the list is turned over to the union. [00:42:15] Speaker 02: So I take your point. [00:42:17] Speaker 02: I mean, the union, obviously, in order to file a petition has to be speaking with some of the employees. [00:42:21] Speaker 02: But to win an election, you need a majority. [00:42:24] Speaker 02: And as the court recognized in Wyman Gordon way back in the 60s, it's just given the structural setup for the union to have a fair opportunity to talk to the employees during the campaign period, they need this veteran list. [00:42:38] Speaker 02: It's extremely important. [00:42:40] Speaker 03: I'll also speak to the question. [00:42:42] Speaker 03: So with the election observer rule, can you on your view, does that does that change affect the union and the employers in a different way? [00:42:55] Speaker 03: Because it seems like a rule that applies equally to all parties. [00:42:58] Speaker 03: And I'm just wondering if you think that there is some kind of differential impact [00:43:05] Speaker 03: on the union from that rule. [00:43:06] Speaker 03: Because I think under some of our cases, at least when a procedural rule has different impacts, that can be a reason for considering it to be substantive. [00:43:16] Speaker 02: So without getting too far into the weeds, it does, and it does in different settings. [00:43:21] Speaker 02: I mean, the issue of whether or not the union can have a non-unit employee oftentimes comes up in elections where the employees are very scared to sit up there at the table and be visible. [00:43:39] Speaker 02: uh with uh with the in front of the employer and its management and so having the opportunity for example to have a former employee someone who's perhaps was you know left prior to the organizing campaign or or in some instances and a union staff member makes a difference and sends a message to the employees who are voting that this is a fair election that both sides get representation [00:44:03] Speaker 02: But I think the main point is we're not, we would have things like that to say to the board if they had put this out as a proposed rule for notice and comment. [00:44:13] Speaker 02: It is in fact a very detailed area of the law, of the board's law, but to just change that important substantive part of the election procedure. [00:44:24] Speaker 02: I mean, it's the final, it's the employees coming in to vote and who they see representing each party without even asking for notice and comment from the parties. [00:44:31] Speaker 02: was the violation here. [00:44:34] Speaker 02: I know my time's expired. [00:44:35] Speaker 02: If I could quickly speak to the certification issue. [00:44:39] Speaker 02: Yeah, please. [00:44:40] Speaker 02: Okay, so the issue with the certification is that by telling the regional directors that they cannot certify the election results while a request for review is pending, deprives the union firstly and most importantly of the statutory right to bargain with the employer. [00:45:00] Speaker 02: that that right under the statute attaches when the union is certified and of course that's what that's what this is all about is the opportunity to bargain with the employer. [00:45:12] Speaker 02: So that and that's a that's a right that can be enforced under the unfair labor practice provisions and so by preventing that it's it it pushes that down the road and that's extremely important because it's hard to bargain a first contract employees are scared they're looking to the union to see whether [00:45:28] Speaker 02: the employer is going to deal with the union, whether this was actually something worth fighting for and whether at the end of the day, they're going to get an enforceable agreement. [00:45:35] Speaker 02: So pushing it off. [00:45:37] Speaker 06: Does it prevent it? [00:45:37] Speaker 06: Because the argument that the board makes is the employer is always at risk in this situation. [00:45:45] Speaker 06: So it doesn't actually prevent it. [00:45:46] Speaker 06: Because if the employer doesn't, then it's at risk at the end of the day of being found to have been in violation. [00:45:52] Speaker 02: So just and I apologize for the to delve into the weeds of the doctrine, but there are very important weeds on particularly on this point. [00:46:01] Speaker 02: So the board is speaking of the duty to not make unilateral changes to existing existing working conditions and we agree that that attaches at the time of the election. [00:46:14] Speaker 02: But this is about bargaining a contract. [00:46:16] Speaker 02: This is the going forward, why people organize the union. [00:46:21] Speaker 02: And that right attaches at the point of certification. [00:46:23] Speaker 02: That is a different right. [00:46:25] Speaker 02: That's the key right in the statute. [00:46:27] Speaker 02: And so by pushing that down the road in every case, automatically under this rule, that is a substantive change to the basic right that's protected under the act. [00:46:38] Speaker 02: I wanted to quickly address the 8b7, the unfair labor practice for recognition and picketing in aid of bargaining. [00:46:47] Speaker 02: The argument, and I would just draw the court's attention to the text of 8b7 itself, that is a prohibition against unions. [00:46:55] Speaker 02: It says you may not pick it in order to require an employer to bargain with you, the union, unless you are currently certified where there has been an election in the previous 12 months. [00:47:06] Speaker 02: And so our point is that a union who is certified and the employer refuses to bargain can put up a picket line and say, come on, you've got to bargain with us. [00:47:19] Speaker 02: They can exercise their collective power to get the employer to the bargaining table under the clear text of 8b7. [00:47:27] Speaker 02: But if the union is not certified because there's been an election held in the prior 12 months, they are prohibited by the plain language of 8b7. [00:47:36] Speaker 02: The cases that the board cites are cases that have to do with recognitional picketing prior to the filing of a petition. [00:47:43] Speaker 02: Those are different cases. [00:47:44] Speaker 02: They're not on point. [00:47:45] Speaker 02: So our only point there, and again, our primary point has to do with the duty to bargain upon certification. [00:47:53] Speaker 02: That's really the meat of the matter. [00:47:56] Speaker 02: But I just want to clarify that point. [00:47:58] Speaker 01: And it doesn't care that if you bargain that whatever terms you get would then date back. [00:48:06] Speaker 01: Do they date back to the time of the election? [00:48:08] Speaker 01: No. [00:48:08] Speaker 02: I mean, no. [00:48:10] Speaker 02: I mean, the employer, I suppose, theoretically could agree to that, but that's not typically the practice. [00:48:15] Speaker 02: And again, it's both that literally the employees are not getting the benefit that they would achieve through a collective bargaining agreement, but it's also that it is [00:48:23] Speaker 02: very difficult for a union to maintain the cohesion during that period. [00:48:28] Speaker 02: If the employer can be going around saying, well, you're not even certified yet. [00:48:32] Speaker 02: We don't have to bargain with you yet. [00:48:34] Speaker 02: And that drags on and on and on. [00:48:36] Speaker 02: That's why certification is so important. [00:48:38] Speaker 01: So on the recognition of picketing, just to back up, you said that you can't pick it unless you're currently certified and that the cases that the board refers to about the pendency of a representation petition don't apply after there has actually been an election and before it's been certified? [00:49:00] Speaker 02: That's correct. [00:49:01] Speaker 02: And that's 8B7 subsection B. So it's a different subsection of the statute. [00:49:11] Speaker 02: I grant you this is not something that is prevalent in the case law, but it is in the statute. [00:49:20] Speaker 02: It is a right in the statute. [00:49:21] Speaker 02: And it goes to the fact that it's all key to the fact that certification is so important in order to commence bargaining. [00:49:31] Speaker 01: I think there were four categories. [00:49:36] Speaker 01: You talked about unilateral changes. [00:49:40] Speaker 01: unfair labor practices, recognition picketing and bargaining and maybe in the bargaining being the most important. [00:49:47] Speaker 01: And there, there's just no duty. [00:49:49] Speaker 01: No duty to bargain and any results of bargaining don't come into effect until bargaining has concluded. [00:49:58] Speaker 02: That's correct. [00:50:00] Speaker 02: And I again, I would really emphasize that is that is the key point. [00:50:03] Speaker 02: And just to go back to To what the board in the preamble said about the rule is they said this rule is all about shifting the risk. [00:50:12] Speaker 02: From the union to the employer. [00:50:13] Speaker 02: We don't think the employer ought to have to bargain. [00:50:16] Speaker 02: If there's any possible with the union. [00:50:18] Speaker 02: If there's any possibility that the the decision might later be overturned. [00:50:24] Speaker 02: Of course, the flip side of that is that, you know, the union then is not entitled to bargain with the employer. [00:50:29] Speaker 02: And throughout the board acknowledges it's very- I think you said it in a reverse way. [00:50:32] Speaker 01: It's shifting the risk to the union from the employer. [00:50:36] Speaker 02: Yes, if I may have misspoke. [00:50:37] Speaker 02: Yes. [00:50:38] Speaker 02: So shifting, yeah. [00:50:40] Speaker 02: Yes. [00:50:44] Speaker 02: My time is up, so I don't want to- I'm happy to address the 3B point and others, but I don't want to overstay my welcome. [00:50:53] Speaker 06: Make sure my colleagues don't have additional questions for you. [00:50:56] Speaker 06: Okay, thank you, Mr. Ginsburg. [00:51:00] Speaker 06: We'll hear rebuttal from the board. [00:51:01] Speaker 06: Mr. Thomas, I think your proportional allocation is one minute. [00:51:05] Speaker 04: Yes, Your Honor, although I note that the union didn't really make any particular points in its arguments. [00:51:12] Speaker 04: So I would just open the floor to the panel if there are any additional questions on the jurisdictional issue. [00:51:19] Speaker 01: I guess I had one for you, Mr. Thomas, which is, [00:51:22] Speaker 01: How is Section 10F ambiguous in any relevant sense? [00:51:30] Speaker 01: If it were ambiguous, then we read it in favor of going directly to the Court of Appeals. [00:51:39] Speaker 01: What is the argument that it is ambiguous, though? [00:51:41] Speaker 04: The reason why it's ambiguous is that the [00:51:44] Speaker 04: Key jurisdictional section of section 10f speaks only to a final order of the board granting or denying the relief sought. [00:51:53] Speaker 04: It does not require that that final order be in the context of unfair labor practice proceeding. [00:51:58] Speaker 04: There are, as we said, surrounding implications in the text and where it's located in the statute that might sort of imply that it applies to unfair labor practice cases. [00:52:08] Speaker 04: But the text itself, the key sentence there, does not limit it to unfair labor practice orders. [00:52:12] Speaker 04: And that's why we believe it's ambiguous. [00:52:17] Speaker 01: It seems I mean it's a little tricky and maybe you can help me think this through but it seems like the default rule is that you first go to the district court and that's just as a result of 1331 and we don't lightly remove jurisdiction without a clear legislative directive. [00:52:38] Speaker 01: But then we have this overlay rule in the New York Republicans case that says, you know, where there is a directive that you go to go initially to the Court of Appeals. [00:52:52] Speaker 01: And there's sort of ambiguity about the scope of it, you read it amply. [00:52:57] Speaker 01: And so I guess you're saying, so how do you get over the first of those though? [00:53:02] Speaker 01: It seems like ambiguity isn't enough to overcome the default rule that people seeking review of agency action go first to district court. [00:53:13] Speaker 04: So it may be helpful to think of it in terms of, for instance, a burden shifting statute or presumption shifting situation. [00:53:25] Speaker 04: So the initial presumption is that parties go to district court unless there is a provision in the statute that provides for direct review [00:53:34] Speaker 04: in the courts of appeals, but there's no dispute here that section 10 F is such a provision channels review of final board orders, certainly in the least in the unfair labor practice contracts that channels review to the courts of appeals and the only question is how broadly to interpret the scope of section 10 F. [00:53:51] Speaker 04: In that situation, in the situation where the only question is how broadly do we interpret the scope of a direct review provision that everyone agrees exists, the presumption is that the direct review statute applies unless there's a firm indication from Congress that it should not apply to a particular category of cases. [00:54:12] Speaker 06: Thank you, Mr. Thomas. [00:54:12] Speaker 06: Let me make sure colleagues don't have additional questions for you. [00:54:14] Speaker 06: Thank you, Mr. Weiss. [00:54:18] Speaker 06: We'll give you three minutes. [00:54:19] Speaker 06: And if I could just ask you, [00:54:21] Speaker 06: To make sure to address the point made by emphasized by the AFL, Mr. Ginsburg on behalf of the AFL, it would help me to understand the response to the point that the duty to bargain kicks in on certification. [00:54:34] Speaker 06: And that's what's largely at stake here. [00:54:39] Speaker 06: And that's why the shifting the certification has a significant substantive consequence because there's no duty to bargain in the absence of the certification to begin with. [00:54:51] Speaker 05: Yes, your honor, certainly, I'd be happy to respond to that. [00:54:54] Speaker 05: I think the most immediate response to that point is that an employer, looking at the position of the employer in these cases, so this issue comes up when an employer has filed a request for review challenging the validity of a bargaining obligation, or of a certification, excuse me. [00:55:16] Speaker 05: And in those circumstances, as the board notes, [00:55:20] Speaker 05: It doesn't make sense for the agency to enforce a bargaining obligation that presents the exact same issue that is being presented in a representation case. [00:55:31] Speaker 05: And so as the board explained for purposes of ordering its litigation and not having an unfair labor practice case raising the same issue as a request for review being present before the board at the same time, that simply as a matter of administrative convenience, it makes sense. [00:55:46] Speaker 05: An employer who has filed the request for review contesting a bargaining obligation [00:55:50] Speaker 05: It's simply irrational for them to bargain with the union while that request for review is pending with regard to the bargaining obligation. [00:56:00] Speaker 01: And with respect... Wouldn't those two cases, the unfair labor practice of... Can you have a situation where you have one case going to district court and one case going to court of appeals that are raising similar issues? [00:56:15] Speaker 01: employer refuses to bargain? [00:56:17] Speaker 01: No, because there's no obligation to bargain under your rule. [00:56:21] Speaker 05: Correct. [00:56:22] Speaker 05: Correct, Your Honor. [00:56:23] Speaker 05: And I know both of those issues in the first instance are going to come before the board. [00:56:30] Speaker 05: And so from the board's perspective, as it explained in its rule, it's simply along with, you know, removing the confusion from a certification that would later be [00:56:40] Speaker 05: revoked simply as a matter of administrative convenience and orderly litigation makes sense to decide the issue in the representation proceeding as opposed to allowing unfair labor practice and representation proceedings to proceed parallel to one another. [00:56:59] Speaker 05: And I think tying back outside of the bargaining context, I think there's a couple other points to make in response to the certification issue. [00:57:09] Speaker 05: The first is that outside of this specific bargaining obligation, virtually every other meaningful right that attaches to the union representation issue goes back to the election. [00:57:22] Speaker 05: It's not just limited to unilateral changes. [00:57:25] Speaker 05: As we've indicated in our briefing, there's other rights that attach, such as the right to request information, other important, I'm blanking on the other issues, but I know there are several others that we addressed in our briefing. [00:57:37] Speaker 05: So it's not simply the obligation to refrain from unilateral changes. [00:57:41] Speaker 05: There's many other substantive rights that flow back to the date of the election, regardless of when the certification issues. [00:57:49] Speaker 05: And as the board explained, issuing a certification while a request for review is pending is simply confusing because the board could turn around and revoke that same certification later. [00:57:59] Speaker 05: And that was a situation that had come up in several cases. [00:58:03] Speaker 01: Do we have any sense of the, [00:58:07] Speaker 01: the win-loss rate of these challenges. [00:58:10] Speaker 01: I mean, I do, you know, there is a waiting game, especially in low wage work where there's a lot of worker turnover for, you know, maybe advantageous with a very slim case for an employer to challenge representation. [00:58:24] Speaker 01: And, you know, just make the employees who [00:58:31] Speaker 01: stuck out there next to vote for a union, feel like, and what did I get for it? [00:58:35] Speaker 01: I'm not seeing anything, you know, months go by. [00:58:38] Speaker 01: Does the board have any sense of sort of on average, how often these challenges to representation succeed? [00:58:49] Speaker 05: I don't have that information, your honor. [00:58:53] Speaker 01: And that's not in the record of the rule at all. [00:58:56] Speaker 05: I do not believe so, your honor. [00:58:58] Speaker 05: Well, what is in the record is that the, [00:59:00] Speaker 05: rules, prior rule changes of a similar nature, have not affected the union's win rates in elections and achieving certifications. [00:59:10] Speaker 01: Right. [00:59:10] Speaker 01: But I took you to be talking about not the win-loss rate, but the confusion from a certification later evoked. [00:59:18] Speaker 01: And the question I have is sort of, well, does that happen a lot? [00:59:22] Speaker 01: Is that a big problem or not? [00:59:25] Speaker 01: And there's not anecdotal or descriptive [00:59:29] Speaker 01: information about that? [00:59:31] Speaker 05: I believe that's correct, Your Honor. [00:59:33] Speaker 01: The board was exercising its institutional expertise in terms of, you know, making a policy judgment about... But you're not aware of the grounds for that expertise, the substantive thinking behind that, other than the logic of it that you recounted? [00:59:50] Speaker 05: Well, it's the logic and the explanation that the board has placed in the Federal Register and obviously the deference that is due to the board in these areas. [00:59:59] Speaker 05: And if I may just respond very briefly on two more points. [01:00:05] Speaker 05: The first is with regard to the litigation of status issues in the pre-election hearing. [01:00:13] Speaker 05: Just a couple of brief points to highlight. [01:00:15] Speaker 05: The first is that oftentimes these issues actually do come back before the board through what's called the unit clarification procedure, where the parties are unable to resolve [01:00:26] Speaker 05: the status of individuals, then that issue simply comes back before the board. [01:00:31] Speaker 05: And so a lot of the board's motivation in making this rule was to just decide those issues upfront and not have them hanging around and having to decide them later. [01:00:41] Speaker 01: The second point that I wanna raise is- Who files a unit clarification, either the union or the employer? [01:00:48] Speaker 05: It could be the union or the employer, and I've handled these things, and even employees will file them in some situations. [01:00:55] Speaker 05: Oh, okay. [01:00:57] Speaker 05: And then the second point is just to correct another brief mistake by opposing council, which is that these rules don't, this rule doesn't require litigation of these issues in every instance. [01:01:11] Speaker 05: As the board explained, it's a normal, it's instructs the regions to normally litigate these issues, but also gives an option for deferral. [01:01:20] Speaker 05: And the converse was true under the 2014 rules that the issues [01:01:24] Speaker 05: were not always required to be deferred and that regions had, the regional directors had the discretion to have these issues litigated in certain circumstances. [01:01:35] Speaker 05: And then the final point I'd like to push back on briefly is the primary purpose argument that my opposing council made. [01:01:43] Speaker 05: In particular, I would direct the court's attention to a series of decisions involving the FCC and radio application cases in which [01:01:54] Speaker 05: the rules at issue were dealing with the denial of radio or TV application licenses, such as Ranger VFCC, Neighborhood TV VFCC, Kessler VFCC. [01:02:05] Speaker 05: And that's obviously one of, if not the primary duties of that agency. [01:02:10] Speaker 05: And so I don't think that's a meaningful distinction under the law of this circuit. [01:02:15] Speaker 05: And then the last point I'd like to make very briefly, with regard to the 3B argument and the space between [01:02:24] Speaker 05: to the extent that there is space between what we've argued and what the board wrote in their rule. [01:02:30] Speaker 05: You'll notice in the briefing that this was never an issue that was addressed in the lower court. [01:02:35] Speaker 05: And what I'm talking about in particular is the space, the alleged space between what the board said and what we said in our briefing. [01:02:42] Speaker 05: We never addressed that issue because it wasn't raised until respondents reply brief. [01:02:47] Speaker 05: The lower court made a Chevron step two finding [01:02:50] Speaker 05: We've argued Chevron step one and two throughout our briefing. [01:02:54] Speaker 05: And the only time that respondent made this argument was in its reply brief, in the final briefing in this case. [01:03:01] Speaker 05: And so we haven't had an opportunity to brief this case. [01:03:03] Speaker 05: We believe that it's waived under the circuit's precedent. [01:03:07] Speaker 05: I apologize for not raising that issue earlier, but I'd just like to flag that for the court as my final remark, unless there's other further questions. [01:03:17] Speaker 06: Okay. [01:03:18] Speaker 06: Thank you, Mr. Weiss. [01:03:19] Speaker 06: Thank you to all counsel. [01:03:21] Speaker 06: We'll take this case under submission.