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Case number 20-1152 et al, National Hot Rod Association Petitioner versus National Labor Relations Board.

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Mr. Roberts for the petitioner, Mr. Francisco Fitzmaurice for the respondent.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:15] Speaker 01:
This is Charles Roberts.

[00:00:16] Speaker 01:
Good morning.

[00:00:17] Speaker 01:
May it please the court.

[00:00:18] Speaker 01:
I'm here on behalf of the National Hot Rod Association.

[00:00:22] Speaker 01:
Let me start by saying that the National Labor Relations Board conducts hundreds and hundreds of representation elections each and every year.

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And having appeared before the board for more than 40 years, I can say they generally do a bang up job, a class A job.

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Unfortunately, in this case, this is one of those rare cases

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where in Alcantara the regional office in New York just simply dropped the ball in its supervision of this national mail ballot election.

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Specifically it sat on requests from two employees for duplicate ballots for four and five days, thereby ensuring that they could not cast a ballot in a timely fashion.

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Now this was an election that was decided by a single vote.

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So if either one of those two employees was disenfranchised under the board's precedence, then that would be a basis for denying enforcement to the board's order.

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Now, when we first presented this case, it was our initial belief that this was negligence on the part of the board or the regional office, that they had simply provided an incorrect phone number or one that was not regularly monitored.

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That was based on the testimony of one of the employees as to what he was told by one of the supervising board agents.

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But now in this court, and this is the first time the boards had to take an official position on it because they weren't really a party down below.

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So they've taken the position that they did, in fact, monitor this phone number, which in our view makes it their failure even more egregious in the sense that it was a conscious decision, apparently, not to respond to these requests.

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Now, let me kind of frame the legal issues.

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I mean, there's no question based on the board's precedents and this court's decisions in Antelope Valley that in a disenfranchisement case, the employer or the party that's objecting has to show two things.

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One, it has to show that there was some election irregularity that is attributable to either the board or a party.

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And two, it has to show that a determinative number of voters were possibly disenfranchised.

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It's not certainty of disenfranchisement.

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It's the possibility of disenfranchisement.

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And it's an objective test.

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Now, the board's position in this case appears to be that there was no election irregularity at all.

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And we find that position to simply be untenable.

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We start with the fact that there was basically a 17-day window period.

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The ballots were mailed out on November the 15th.

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They were to be counted on December the 2nd.

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So you had a 17-day window period.

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And the notice of election

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told employees that if they had not received a ballot by November 22, to contact the board immediately.

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The record reflects that on the following morning, November 23, which was the day before Thanksgiving, at 11 56 AM, employee Robert Logan left a voicemail on this particular number that had been provided requesting a duplicate ballot.

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Based on the board's representation that it monitored the phone number, it apparently consciously refused or declined to send a ballot out that same day, even though it sent out three duplicate ballots to other employees the very same day, two of whom were able to return timely ballots.

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Now, the following day was Thanksgiving, and then on Friday, December the 25th,

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Another employee, Paul Kent, left a voicemail at 11.32 a.m.

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requesting a duplicate ballot.

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And employee Logan, not having heard anything back at 3.21 p.m., made a second request for a duplicate ballot.

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Again, no action was taken on these on Friday, November the 23rd.

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fifth.

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Over the weekend Logan attempts to find out phone numbers and emails and eventually obtains a phone number which he contacts apparently on Monday and is able to reach the board agent.

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At that day they send out

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a ballot to him, but by now we're November the 28th.

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He's in Michigan, the regional offices in New York, and the chances of him receiving a ballot in a timely fashion have been severely diminished.

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And in fact, he does not receive it in a timely fashion.

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Strangely, even though they sent him a ballot that day, they waited until the next day, Tuesday the 29th, to send Kent a ballot.

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So here we have, it's hard, there's just no way you can say this is not an election irregularity attributable to the board.

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And what's frustrating is it's wholly unexplained.

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There's never been any explanation.

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If there were some justification, we should have heard it by now.

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But basically, so what you have is they sat on these requests for four and five days, thereby preventing a reasonable opportunity for these two employees to cast ballots.

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And then we get to the second stage of it, which is were they possibly disenfranchised?

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As I said earlier, we know that Logan, if they had sent him a ballot on the 23rd, two of the three employees who got ballots that day or were sent ballots that day, one in Missouri, one in Nevada, were able to return ballots in a timely fashion.

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So we know that Logan

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could have voted were highly likely that he could have cast a timely ballot if he'd been mailed one that day.

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Even on the 25th, the day before the weekend after Thanksgiving, you're still seven days from the election.

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It's certainly reasonably possible that Kent could have received his ballot in a timely fashion.

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What we have here is basically an unexplained failure on the part of the board.

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It's the exception.

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It's not the rule in these board cases.

[00:06:56] Speaker 03:
Mr. Roberts, could I ask you just a- As far as you're concerned, can- Yes, Your Honor.

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Mr. Roberts, am I oversimplifying your case by simply saying that the case, as far as you're concerned, the case can turn just on Logan.

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correct loan.

[00:07:14] Speaker 01:
That is correct.

[00:07:14] Speaker 03:
Because Logan, let's see, the notice from the regional office said that employees who don't receive a ballot by a certain date must communicate immediately.

[00:07:27] Speaker 03:
He did that twice to the designated phone number.

[00:07:30] Speaker 01:
Yes.

[00:07:31] Speaker 03:
So in your view, is that, does that, that results the case?

[00:07:34] Speaker 01:
Yes, I do.

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If you agree with me on Logan, there is no need to address the other.

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I mean, a single vote.

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Nor is there any need, in your view, to go beyond the fact that the board gave him two numbers, he called one of them twice, got no response.

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End of the matter as far as you're concerned?

[00:07:57] Speaker 01:
Yes, I will just say quickly that to the extent that they that the judge should have called the other number.

[00:08:04] Speaker 01:
There was no need to and the board's position is they knew they had already received his voicemail leaving another voicemail would have been pointless so we think he complied with what was what was the agreement, the notice didn't say had to call them both.

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right?

[00:08:21] Speaker 01:
It said either or, but the judge said he should have done more.

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And we dispute that position.

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But yes, Logan Logan is the most clear cut of the ones.

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And I think he's determined to in and of himself.

[00:08:36] Speaker 00:
I just if we if we find for you on the voter disenfranchisement issue, do we need to reach the second issue?

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about whether the board abused its discretion and not opening the ballots?

[00:08:52] Speaker 01:
Well, the only difference would be in remedy, your honor, because on the on the first issue, the remedy, as I see it, is deny enforcement.

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The board then has to revoke the certification and hold a rerun election on the second issue.

[00:09:06] Speaker 04:
In theory.

[00:09:08] Speaker 04:
Council, I think Judge Rao

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ask you whether you do you need to even discuss the second issue if we decide in favor of you on the first issue well the only my only point was is that on the remedy on the second issue could be if the court ordered to order the board to open those three ballots which could in theory

[00:09:34] Speaker 01:
shift the vote to where it's no longer.

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Determinative in which.

[00:09:39] Speaker 04:
But counsel don't isn't your correct answer.

[00:09:42] Speaker 04:
If we decide, as Judge title pointed out, if we decide in favor of you with respect to Logan isn't that the end of the case.

[00:09:51] Speaker 01:
I'm happy with that result.

[00:09:53] Speaker 01:
I will stand on that, Your Honor.

[00:09:55] Speaker 00:
Happy that you're winning, isn't it?

[00:09:57] Speaker 01:
It is, Your Honor.

[00:09:59] Speaker 00:
Mr. Roberts, I think that there may be some difficult exhaustion questions with respect to the second issue, which is one of the reasons I asked whether we need to even reach the second issue.

[00:10:12] Speaker 01:
I will gladly, I hate to say waive the second issue, but certainly stand on the first issue and take the position that if the court were to rule in our favor, we certainly have no request that you visit the second issue.

[00:10:29] Speaker 01:
Only if you obviously.

[00:10:30] Speaker 03:
And I just understand it.

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I just want to understand your point about that.

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And I don't want to push this any further than we need to.

[00:10:37] Speaker 03:
But I understood your argument on that being that if they open those, you might win the election, right?

[00:10:44] Speaker 01:
That is the point, Your Honor.

[00:10:46] Speaker 01:
But again.

[00:10:47] Speaker 03:
But then let me follow up on what Judge Rao said.

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She mentioned exhaustion.

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Did you raise this issue with the board?

[00:10:55] Speaker 03:
It's opening the bounds.

[00:10:57] Speaker 01:
It's raised in the objections that were filed.

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The objections pointed out that there were still 17 challenged ballots that had yet to be opened.

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In essence, there was no final tally of ballots on December the 2nd.

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There were 17 challenged ballots, 15 of which were opened

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eight months later, and in our objections, we asserted that that was in a ground that they could be opened along with those ballots.

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We did not, in Alcander, we did not subsequently, after the objections, go back to the region and say, hey, you need to reopen these at the same time.

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So we did not reiterate

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the request, but the request was made in the objections, which are in the record.

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I don't have the page numbers before me, but they are in the joint appendix.

[00:12:01] Speaker 01:
All right.

[00:12:01] Speaker 03:
All right.

[00:12:02] Speaker 03:
Well, thank you.

[00:12:04] Speaker 03:
Any other questions, Judge Brown, Judge Stillman?

[00:12:07] Speaker 03:
No.

[00:12:07] Speaker 03:
No questions.

[00:12:08] Speaker 03:
OK.

[00:12:08] Speaker 03:
We'll hear from the board then.

[00:12:13] Speaker 02:
May I please the court?

[00:12:14] Speaker 02:
My name is Brady Francisco Fitzmorris.

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I represent the National Labor Relations Board.

[00:12:19] Speaker 02:
We could hear seeking enforcement of its order, finding that the company violated section 85 and one of the acts when it refused to recognize and bargain with the union after a majority of its television production employees voted in support of the union in a mail ballot election.

[00:12:35] Speaker 02:
I'd like to start off.

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There are just a few points I'd like to clean up based on Mr. Roberts' argument that I think could bear correcting.

[00:12:45] Speaker 02:
A point was raised that the board admitted in briefing that it monitored the phone line and intentionally sat on.

[00:12:51] Speaker 03:
Could you just go back to the beginning, could you just instead of cleaning up these spots, could you just respond to his final point that this case turns on Logan himself, Logan.

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quote, Logan did exactly what the notice said.

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He quote, communicated immediately, very next day.

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He called one of the two numbers.

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There was no response.

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Mr. Roberts says, that's it, ends the case.

[00:13:16] Speaker 02:
Sure, I'm happy to do that.

[00:13:17] Speaker 02:
So as to Logan and all the employees, the issue here is whether- No, no, just Logan.

[00:13:24] Speaker 03:
Just stick with the facts of Logan.

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He called the board's designated number twice, got no response.

[00:13:31] Speaker 02:
He did.

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On November 23rd, Wednesday, the day before Thanksgiving, he left a voicemail requesting a duplicate ballot be sent to him.

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He did so again on Friday the 25th.

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That's correct.

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Now, what the board found was that under the circumstances that Mr. Logan was aware of, the urgency of the election and the count being scheduled to take place the following week, he didn't do everything he could have.

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He didn't follow every avenue available to him to request a duplicate ballot.

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The second phone line was available to him and he did not call that but the the notice did not say he had a call both of them That's correct.

[00:14:07] Speaker 02:
The notice used the word or giving the local phone line as well as the national phone line However, you know in the stipulated election agreement that the parties voluntarily agreed to the parties agreed that you know These requests should be in by five o'clock on about Tuesday, November 22nd.

[00:14:25] Speaker 04:
Wait a minute council.

[00:14:26] Speaker 04:
Wait a minute.

[00:14:27] Speaker 04:
Wait, just a second

[00:14:29] Speaker 04:
Look, you suggest that he should have done the extraordinary thing of calling the second number, but why would that have been any good when you've admitted in your brief that you monitored the first number?

[00:14:45] Speaker 02:
So as to the first number, you know, the board's position is that it was the company's burden to prove that that line was not monitored and the company didn't.

[00:14:49] Speaker 02:
Wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait,

[00:15:00] Speaker 02:
Well, what we wrote in our brief was that the evidence did not prove that that line was unmonitored and that there's evidence suggesting that the line was in fact monitored.

[00:15:10] Speaker 02:
Another employee.

[00:15:11] Speaker 04:
Oh, that's enough.

[00:15:12] Speaker 04:
I read your brief as stating that it was monitored.

[00:15:17] Speaker 04:
So why in God's name can you take the position that he should have called another number?

[00:15:23] Speaker 04:
You already received his request.

[00:15:28] Speaker 02:
Of course, the board did receive his request and responded to it on Monday, November 28th.

[00:15:34] Speaker 04:
Five days later.

[00:15:36] Speaker 02:
Yes, that's correct.

[00:15:38] Speaker 02:
Which is, you know, given the weekend on the holidays to business.

[00:15:41] Speaker 04:
The only point I'm making is the second number argument that you're making doesn't make any sense when you admit you received his request at the first number.

[00:15:51] Speaker 04:
Well, with respect to that, when you did that, council leaped on it.

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because you were hoist on your own petard.

[00:16:02] Speaker 02:
Your honor, notwithstanding that quip, I have to respectfully disagree that it wouldn't matter.

[00:16:08] Speaker 02:
Mr. Logan was under the circumstance where he knew that he had waited until the absolute last day he could expect to receive the ballot, and then the following day made a request.

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He didn't talk to anyone.

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He was not aware at that time that the request would be received or processed, and rather than call the other number available to him,

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decided to wait and then call the same number again the following business day on Friday.

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So I don't think it's an extraordinary request or burden to ask someone to call a second phone number.

[00:16:39] Speaker 02:
And the board found that- Why?

[00:16:40] Speaker 04:
What good would that do when you monitor?

[00:16:42] Speaker 04:
You received his first number.

[00:16:45] Speaker 04:
I don't see your position.

[00:16:47] Speaker 04:
He could have got the chairman of the National Labor Relations Board's phone number in Washington and called that too.

[00:16:54] Speaker 02:
I think my point is that

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A second phone number would have gone to a different person who may have answered the phone, and he may have had a conversation.

[00:17:00] Speaker 04:
So in other words, you're basically admitting the first person he talked to was incompetent?

[00:17:07] Speaker 02:
No, I'm not, Your Honor.

[00:17:08] Speaker 02:
He didn't speak to anyone on the 23rd or the 25th.

[00:17:11] Speaker 04:
Well, he left a voicemail.

[00:17:13] Speaker 04:
Somebody read it, and somebody did nothing.

[00:17:16] Speaker 02:
No, that's not right, Your Honor.

[00:17:18] Speaker 02:
What the board did was, after receiving that voicemail, on Monday the 28th, sent out the duplicate ballot to Mr. Logan.

[00:17:25] Speaker 02:
The council for the company stated that on the 23rd, the region sent out three duplicate ballots, but for some reason didn't send out Mr. Logan's.

[00:17:33] Speaker 02:
It is true that the region sent out three duplicate ballots on the 23rd, but the record does not disclose when those duplicate ballots were requested.

[00:17:42] Speaker 02:
So it's not the fact, the record does not show that on the 23rd, the board received three requests and Logan's and decided only to respond to those three and not Logan's.

[00:17:52] Speaker 02:
It may have been the fact that those three requests were made previously, and there may have been a lag of one or two business days.

[00:17:58] Speaker 02:
I don't know, that's not shown in the record.

[00:18:00] Speaker 03:
But the broader point here is that no matter what the- A few minutes ago, you said that you thought it was relevant that Logan waited to the last minute, right?

[00:18:12] Speaker 03:
That's what you said.

[00:18:13] Speaker 03:
But the notice says employees who did not receive a bail by November 22, by November 22.

[00:18:22] Speaker 03:
should communicate immediately.

[00:18:24] Speaker 03:
That's what he did.

[00:18:26] Speaker 03:
There's nothing that suggests he needed to act, that it was irresponsible for him not to try to get a ballot on November 19th and November 20th, is there?

[00:18:36] Speaker 02:
You're absolutely right, Your Honor.

[00:18:37] Speaker 02:
I don't mean to suggest that.

[00:18:40] Speaker 03:
So then that's not relevant, right?

[00:18:42] Speaker 02:
Well, no, it is relevant.

[00:18:44] Speaker 02:
Why?

[00:18:44] Speaker 02:
What I'm saying is two things.

[00:18:46] Speaker 02:
One, the board made clear that it was not

[00:18:49] Speaker 02:
going out of its way to fault Mr. Logan in the pejorative sense.

[00:18:52] Speaker 02:
And that's language from a board case for sale.

[00:18:56] Speaker 02:
But at the same time, the board recognized that as you get closer and closer to the election, it becomes more and more urgent.

[00:19:02] Speaker 02:
And it makes sense, it only makes sense to do everything you can to request the duplicate ballot.

[00:19:10] Speaker 03:
But look, you mentioned the agreement also.

[00:19:14] Speaker 03:
Now, the agreement and the notice are different.

[00:19:18] Speaker 03:
I can see your point if we were already in the agreement because that says that employees who didn't get a ballot should contact the region's office by no later than November 20.

[00:19:31] Speaker 03:
You might've had a point then, but the notice says, if you don't get it by November 22, contact us immediately.

[00:19:42] Speaker 03:
I just don't see how it's at all relevant that he waited until that date.

[00:19:48] Speaker 02:
Yeah, you're absolutely right, Your Honor, that notice doesn't have that time, but it wouldn't have made a difference.

[00:19:55] Speaker 03:
So then what's left of the board's argument here?

[00:19:59] Speaker 03:
He called a number twice.

[00:20:01] Speaker 03:
It's either that he should have called the other number, but as Judge Silverwood points out, the board has conceded that it wasn't monitored.

[00:20:08] Speaker 03:
So what's left?

[00:20:10] Speaker 02:
No, Your Honor, the board has not conceded that either phone line was not monitored.

[00:20:13] Speaker 02:
I have to make that clear.

[00:20:14] Speaker 04:
No, no, no, no, no, no, no, no, no.

[00:20:15] Speaker 04:
It's worse though, you conceded it was monitored.

[00:20:19] Speaker 04:
So in other words, you- That's what I meant.

[00:20:22] Speaker 03:
I misspoke.

[00:20:23] Speaker 03:
Sorry, I misspoke.

[00:20:24] Speaker 03:
Right.

[00:20:25] Speaker 02:
So what happened here was Mr. Logan on the 23rd called the phone number at the region to request a duplicate ballot.

[00:20:33] Speaker 02:
Even if the board had sent, had received that voicemail and the very instant sent out a duplicate ballot, it would not have made a difference.

[00:20:41] Speaker 02:
Mr. Logan's

[00:20:42] Speaker 02:
Original ballot was sent out on November 15, the same day that the original ballots went out to each and every one.

[00:20:48] Speaker 02:
He didn't even receive his original ballot or the duplicate ballot until after December 2, the day of the official ballot count.

[00:20:56] Speaker 02:
So his situation can be chalked up solely to the vagaries of mail delivery.

[00:21:02] Speaker 02:
And the courts have held uniformly that the vagaries of mail delivery are not a reason to overturn an election.

[00:21:09] Speaker 02:
I would also point to the Third and Second Circuit cases

[00:21:12] Speaker 02:
noting that perfection is not what's required in an election.

[00:21:16] Speaker 02:
If that were the case, employees might never achieve their choice of representative.

[00:21:21] Speaker 02:
There are always going to be certain things that pop up here and there.

[00:21:25] Speaker 02:
It's very unfortunate that Mr. Logan didn't receive either of his ballots in time to vote.

[00:21:30] Speaker 02:
And the board noted that that's regrettable, of course.

[00:21:34] Speaker 02:
However, it's not a basis for overturning the results of this election, where 73% of the employees in the unit

[00:21:41] Speaker 02:
did cast timely ballots.

[00:21:44] Speaker 02:
The board successfully processed 21 requests for duplicate ballots, and many of those employees cast timely ballots.

[00:21:51] Speaker 02:
So to overturn the results of the election would be to take away all of those employees' choice of representative.

[00:21:57] Speaker 02:
I see that I've gone over time here.

[00:22:00] Speaker 02:
So unless there are other- Anything else?

[00:22:02] Speaker 03:
Judge, check around just so anything else.

[00:22:05] Speaker 02:
No.

[00:22:07] Speaker 02:
No.

[00:22:07] Speaker 02:
The board thanks the court for its time, and we ask that it enter judgment

[00:22:11] Speaker 03:
Thank you.

[00:22:13] Speaker 03:
Mr. Roberts, you can take a minute if you would like it.

[00:22:17] Speaker 03:
Do you want to say something?

[00:22:19] Speaker 03:
I won't count this against you.

[00:22:20] Speaker 03:
What about this argument about the vagaries of mail delivery?

[00:22:23] Speaker 01:
That was what I was going to respond to.

[00:22:25] Speaker 01:
The possibility is not the certainty.

[00:22:30] Speaker 01:
And the fact that the original ballot wasn't received until after the time, after the deadline, says nothing about whether the second ballot would have been delivered on time.

[00:22:40] Speaker 01:
As I say, two of the three people who were mailed ballots on the 23rd returned them, one from Missouri, one from Nevada.

[00:22:49] Speaker 01:
We cannot say that

[00:22:51] Speaker 01:
delivery to Michigan would not have been made in a timely fashion.

[00:22:55] Speaker 01:
Logan was obviously interested.

[00:22:57] Speaker 01:
He was clearly making the effort.

[00:22:59] Speaker 01:
And basically all we have to show is that there was a reasonable possibility that he could have voted and that's, the vagaries don't come into it.

[00:23:11] Speaker 01:
We would ask that the board's order be denied enforcement.

[00:23:14] Speaker 01:
Thank you.

[00:23:15] Speaker 03:
Okay.

[00:23:16] Speaker 03:
Thank you very much.

[00:23:16] Speaker 03:
The case is submitted.