[00:00:02] Speaker 00: Case number 19-1180 et al. [00:00:05] Speaker 00: Radnet Management Inc. [00:00:06] Speaker 00: doing business as Orange Advanced Imaging Petitioner versus National Labor Relations Board. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Cassetta Lammers for the petitioner, Ms. [00:00:15] Speaker 00: Beard for the respondent. [00:00:21] Speaker 05: You may start. [00:00:22] Speaker 04: Good afternoon, Your Honors. [00:00:23] Speaker 04: May it please the court, Caitlin Cassetta Lammers for Radnet Management Inc. [00:00:27] Speaker 04: doing business in this case as six separate entities [00:00:31] Speaker 04: Anaheim Advanced Imaging, Garden Grove Advanced Imaging, Orange Advanced Imaging, La Mirada Imaging, West Coast Radiology Irvine, and West Coast Radiology Santa Ana, who I will refer to as a consolidated group as the employers in this case. [00:00:47] Speaker 04: The employers come before the court today requesting that the court deny enforcement of the National Labor Relations Board's underlying orders and request that this court vacate the underlying representation proceedings in these cases. [00:01:05] Speaker 04: The two issues I'd like to spend the majority of my time on today are the fact that the board has certified an invalid and inappropriate unit [00:01:14] Speaker 04: in this case are multiple inappropriate units and that the board acted improperly when it chose to impound the ballots from six separate elections and to hold those ballots to be counted until after all six of those elections had occurred. [00:01:32] Speaker 04: There are other issues that are raised. [00:01:35] Speaker 02: Naya, let me ask about that last issue. [00:01:38] Speaker 02: Sure. [00:01:40] Speaker 02: It seems to me that if you're right, that the ballot should not have been impounded. [00:01:48] Speaker 02: And if the remedy is to invalidate the elections that are at issue, that either the first election or the last election still ought not to be invalidated. [00:02:03] Speaker 02: So if your theory is that the problem was [00:02:07] Speaker 02: every election after the first was denied the information of knowing the tally of the first, then fine, invalidate all of the ones after the first. [00:02:19] Speaker 02: But the first was untainted. [00:02:23] Speaker 02: On the other hand, if your theory is that the problem is any election is invalid when its tally is not done immediately, [00:02:35] Speaker 02: then the last election on the second day is fine because its tally actually was done immediately. [00:02:43] Speaker 02: So am I right that at least the first or the last election has to be valid? [00:02:49] Speaker 02: And why? [00:02:51] Speaker 04: Our argument is more so the former than the latter of the two situations that you posit, but I don't think it's necessarily true that a first election quote unquote must be invalidated. [00:03:02] Speaker 04: Rather, I think we have to take the step, the analysis back a step further and consider whether the regional director had alternatives that would have allowed for there not to be the succession of votes. [00:03:15] Speaker 04: Um, one after the other, wherein each of the votes could have been conducted at the same time. [00:03:20] Speaker 04: And we don't deny that the regional director would have some level of discretion to make a determination like that. [00:03:27] Speaker 02: What we are, why, why, why, and you're saying that if, if you went on the merits that the tally should have happened immediately after each election, are you more or less conceding that the first election, I think it was La Mirada. [00:03:43] Speaker 02: should nevertheless not be invalidated? [00:03:47] Speaker 04: That would require our position to be that the only issue with the way that the regional director sequenced the votes was the fact that the subsequent elections and the subsequent voters didn't have the ability to know what happened in the elections that happened prior. [00:04:04] Speaker 04: I think the issue is that once you send it back to the regional director and you say, Mr. Regional Director, you have some discretion, but in an ideal world, you would conduct these so that they don't fall in a chain. [00:04:19] Speaker 04: Then I think you have to say, well, I don't know that we can say that La Mirada shouldn't also be invalidated because the question is one of [00:04:29] Speaker 04: could the regional director have sequenced these and ordered them so that you wouldn't have had that problem at all? [00:04:35] Speaker 02: But your theory is that the real problem was in deciding to have all these elections at different times? [00:04:50] Speaker 04: No, the theory to be very clear is that the [00:04:55] Speaker 04: that the regional director in deciding to have the elections at different times abused his discretion when he had the elections at different times and didn't count the votes after each election. [00:05:07] Speaker 02: Let's assume I, and I'm not saying I do agree with you, but let's assume I agree with, with what you just said. [00:05:13] Speaker 02: It's fine to sequence them, but it wasn't fine to wait until the end to tally them all. [00:05:21] Speaker 02: Then [00:05:22] Speaker 02: And let's assume I think the reason is that it went against agency went against the board's regulations to the to the detriment of people in in the later elections who didn't have the information that they would have had. [00:05:35] Speaker 02: But so all that's good for you. [00:05:36] Speaker 02: And let's assume I I'm on board with all that. [00:05:39] Speaker 02: Tell me why I should invalidate the first election at Lombard. [00:05:43] Speaker 04: Because I think, again, when you send this back to the regional director and say your your discretion didn't extend this far, you need to give this another shot and doing it correctly that all the election should be reconsidered by the regional director. [00:05:59] Speaker 04: Perhaps now that he understands the limitation on his discretion, the region of the board would prefer to run all of the election simultaneously. [00:06:08] Speaker 04: I do believe that that decision ultimately is one that the board could continue to exercise discretion over. [00:06:14] Speaker 04: That's the only reason. [00:06:15] Speaker 04: Now, from the practical standpoint of what our argument is, our argument is yes, that it is the sequencing and the failure to count. [00:06:23] Speaker 04: That is a irreparable harm to the the. [00:06:27] Speaker 05: Can you explain to me the prejudice. [00:06:30] Speaker 05: I'm sorry. [00:06:30] Speaker 05: Just like what you've done. [00:06:31] Speaker 01: No, I was going to ask exactly. [00:06:32] Speaker 01: Oh, sorry. [00:06:34] Speaker 01: I was going to ask exactly the same question. [00:06:38] Speaker 04: Yeah, there are [00:06:40] Speaker 04: Two prejudices, and I think a third related point one prejudice runs to the employees as employees vote on whether they want to be represented by this union it's relevant to them with this bargaining strength of that union is amongst these employers. [00:06:56] Speaker 04: And in this region, I think there is a related prejudice to the union and to the employer. [00:07:02] Speaker 04: And of course, I represent the employer. [00:07:04] Speaker 04: So I would speak to the employers prejudice in terms of the employers free speech rights under the National Labor Relations Act to communicate with employees about what's happening in these various elections. [00:07:15] Speaker 04: involving similar groups of employees in the same union. [00:07:17] Speaker 04: And then I think, aside from the question of prejudice, there's also a question of the authority of the agency to conduct itself in this manner where doing so is arbitrary and capricious. [00:07:31] Speaker 01: Statutory interest, I assume, is just in a fair election, right? [00:07:37] Speaker 04: Statutory interest is in a fair election. [00:07:39] Speaker 04: However, the act does. [00:07:43] Speaker 01: What's unfair about structuring this in this way? [00:07:48] Speaker 01: I mean, you know, we have a presidential election in which [00:07:56] Speaker 01: media organizations agree that they won't release any East Coast results until the polls close on the West Coast, precisely to deny the voters on the West Coast the information you want, which is who won some related election. [00:08:16] Speaker 01: Nobody think that's unfair to that California voter can't find out who won the New York election before they have to vote. [00:08:25] Speaker 01: So why is this any different? [00:08:27] Speaker 04: Well, I think that points to one of the more central paradoxes in this argument, which is that the board had already affirmed, the regional director found, and the board has affirmed throughout, that these were separate voting units. [00:08:41] Speaker 04: So this isn't one big national election. [00:08:43] Speaker 04: This isn't one [00:08:45] Speaker 04: vote with multiple boxes that are all going to count as part of the same result. [00:08:50] Speaker 04: And in fact, the board does have a history of impounding ballots in those types of cases. [00:08:55] Speaker 04: What they don't have is any history of doing that, where you have separate bargaining units. [00:09:00] Speaker 04: And these are separate elections with separate bargaining units. [00:09:03] Speaker 01: Separateness counts against you. [00:09:06] Speaker 01: I mean, maybe my presidential election analogy is a little bit off. [00:09:12] Speaker 01: The more accurate [00:09:14] Speaker 01: thing if we focus on separateness is the California voters who are picking the governor of California don't know whom the New York voters picked to be governor of New York when they're voting. [00:09:29] Speaker 01: That's even more prejudicial. [00:09:31] Speaker 04: It's true and it's not true because I live in Georgia and the voters in Georgia knew what the election outcomes were when they went to the polls to decide about the voters and to run off elections. [00:09:43] Speaker 04: I think the point that we would be making is that there's no board precedent. [00:09:47] Speaker 04: that mimics or parallels what you're describing as the agreement between media outlets or reporting outlets. [00:09:55] Speaker 04: Nothing like that exists in the board's procedures. [00:09:57] Speaker 04: And in fact, they're directly to the contrary. [00:10:00] Speaker 04: What they are saying is you shouldn't do this. [00:10:03] Speaker 04: You absolutely should count votes immediately after. [00:10:06] Speaker 04: There's no good reason for the regional director not to have done that in these cases. [00:10:11] Speaker 04: And there are clear harms. [00:10:12] Speaker 04: You had employees whose names were included and offers of proof given to the board saying, yes, I would have liked to know that information. [00:10:19] Speaker 04: This goes to the question of this union strength. [00:10:22] Speaker 04: I see my time has already expired. [00:10:24] Speaker 05: Don't worry about that. [00:10:26] Speaker 05: Did you have more follow-up questions? [00:10:28] Speaker 01: Just one more, which is if we agree with you that [00:10:33] Speaker 01: Um, the voters have that interest in knowing what's happened in the other elections. [00:10:39] Speaker 01: Would it have been an abuse of discretion to schedule all the elections simultaneously? [00:10:45] Speaker 04: I don't think we would have been in a position to argue that, first of all, that's not what happened. [00:10:51] Speaker 04: So I'm speculating a little, but we would be, the employer would not be making this point about there being. [00:10:57] Speaker 05: Oh, we've lost your sound. [00:11:02] Speaker 01: You cut out. [00:11:08] Speaker 01: Can you hear us. [00:11:09] Speaker 04: I can hear you. [00:11:10] Speaker 04: Can you hear me. [00:11:11] Speaker 01: About 20 seconds ago. [00:11:14] Speaker 04: Okay, my apologies. [00:11:15] Speaker 04: It looks like it might have had to do with Bluetooth. [00:11:17] Speaker 04: Can you hear me now. [00:11:19] Speaker 04: Okay, great. [00:11:20] Speaker 04: So I think the point is that the regional director here acted to intentionally withhold information. [00:11:27] Speaker 04: He said, relying upon discretion, which was not unfettered, a system that acted to intentionally withhold information from voters and intentionally muzzle the party's [00:11:40] Speaker 04: to these various proceedings from speaking between. [00:11:45] Speaker 05: You made this general assertion that the prejudice to the employer. [00:11:49] Speaker 05: I don't know that you went with showing prejudice to employees, but so you represent the employer. [00:11:57] Speaker 05: And the prejudice to the employer you mentioned was using Muslim free speech rights. [00:12:05] Speaker 04: That's correct. [00:12:05] Speaker 05: Is there anything more particular in the record about what your employer wanted to say and wasn't able to say? [00:12:11] Speaker 04: I think that the offers of proof speak generally to the desire to communicate with employees about the results of the election. [00:12:19] Speaker 05: So you talked about sort of the union's strength or whatnot. [00:12:23] Speaker 05: So was the point to say the union lost two elections yesterday, they're not going to be that strong? [00:12:30] Speaker 05: Is that what the employer wanted to say? [00:12:32] Speaker 04: potentially within the confines of the National Labor Relations Act and what's considered lawful speech. [00:12:39] Speaker 05: I'm assuming your client wants to do lawful speech. [00:12:43] Speaker 05: So the difficulty for you is that the union won all the elections on the first day. [00:12:48] Speaker 04: No, they won all but one. [00:12:51] Speaker 04: What you're missing in the record, and if you look at the board's answering brief, [00:12:56] Speaker 04: You can see that there were elections that were held that are not at issue in this case, if you turn to page 12 of the answering brief. [00:13:03] Speaker 04: And you don't have the vote tallies for the other elections, but there were other elections that I believe were held on on both days. [00:13:11] Speaker 04: They're not at issue in this case because objections weren't filed, but there were other elections, some of which in which the employers prevailed. [00:13:20] Speaker 04: Which one was that? [00:13:22] Speaker 04: So if you look at page 12 of the answering brief, you'll see there are units A through, and then you'd have to turn to 13, you got A through J2. [00:13:31] Speaker 04: And the board here has listed out those units where the tally favored union representation in any other election where the union did not prevail is just listed as NA. [00:13:44] Speaker 05: Right. [00:13:44] Speaker 05: So the only one that might have been on the 24th would have been these professionals in Santa Ana, so it was a totally different unit? [00:13:51] Speaker 04: So a professional in Santa Ana, it would have come down to the question of a sonatone election, which is an election that's run by the board. [00:13:59] Speaker 04: The election says not only, the employees are asked not only, do you want to be in the unit, but do you want your unit to be combined? [00:14:06] Speaker 05: No, I'm just asking the folks at issue here, the MRI and radiology. [00:14:12] Speaker 04: Nuclear medicine. [00:14:14] Speaker 05: Thank you folks. [00:14:15] Speaker 05: They would have been in unit J2, right? [00:14:18] Speaker 04: So J to correct would have been nuclear medicine MRI. [00:14:24] Speaker 04: That would have been true for all, except I believe the Santa Hannah professionals. [00:14:27] Speaker 04: So J1 is the only one who wouldn't have had some contingent of employees who come under the question of the question of the supervisory or the, I'm sorry, the statutory guard analysis, which I'm happy to have. [00:14:43] Speaker 05: I'm confused and you know way more than I do. [00:14:46] Speaker 05: Let me try to phrase it simply. [00:14:48] Speaker 05: Did J1 include any MRI or nuclear medicine? [00:14:54] Speaker 04: No. [00:14:54] Speaker 04: I believe it would have been just nurses, because the reason it was separated out, we could confirm this with the decision and direction of election. [00:15:01] Speaker 04: But I believe it was just nurses, because they have to participate. [00:15:04] Speaker 04: Professionals have to elect to be included in a unit with technical employees. [00:15:11] Speaker 05: Second point you wanted to argue, I think. [00:15:15] Speaker 05: I don't mean to cut you off if you have more to say on this, but you did want to touch, I think, on the guard issue. [00:15:19] Speaker 04: Yes, and thank you. [00:15:20] Speaker 04: I'm happy to answer more questions about the question of impounding the ballots because I do think that it presents a legitimate issue for the board. [00:15:27] Speaker 04: However, I do want to make sure that I do mention the fact that the certified units violate the National Labor Relations Act because, of course, we don't even get to the question of the impounding of the ballots. [00:15:38] Speaker 04: If this court were to determine that section 93 of the act did not permit the board to entertain these petitions or certify these bargaining units. [00:15:49] Speaker 04: On that question, as you all know from reviewing the brief, section 93 of the act prevents non-guard employees from being combined in units with guard employees. [00:15:58] Speaker 04: 93 of the act also defines what a guard is. [00:16:02] Speaker 04: A guard is an employee who's employed to enforce against employees and other people rules that protect the employer's property and to protect the safety of persons, including other employees on the employer's property. [00:16:18] Speaker 05: And there's been law clerks are charged with, um, ensuring that they don't let anybody in and they don't see anybody else letting someone into secure areas of the courthouse. [00:16:33] Speaker 05: Um, and they, uh, they have security, at least one of them has a security button in their office to call for assistance. [00:16:41] Speaker 05: If there's a break in, they're charged with all kinds of responsibilities for maintaining confidentiality. [00:16:48] Speaker 05: of information for not disclosing information about, that affects my security. [00:16:53] Speaker 05: So they have a lot of responsibilities on ensuring safety inside the courthouse. [00:16:59] Speaker 05: Putting aside that Laura isn't gonna apply right here, but let's assume it does. [00:17:03] Speaker 05: Let's assume I'm an administrative law judge. [00:17:06] Speaker 05: Are they guards? [00:17:11] Speaker 04: I don't think they are. [00:17:12] Speaker 04: And of course, I would urge your employees and you if you were the employer to develop a full factual record before a determination would have been made on that. [00:17:20] Speaker 04: But I don't think they would be. [00:17:21] Speaker 04: And there's a distinction. [00:17:22] Speaker 04: The distinction is that you have security guards at the courthouse. [00:17:26] Speaker 04: And they're the individuals who are tasked with, in the first instance, the application of the security rules. [00:17:33] Speaker 04: Yes, it is. [00:17:34] Speaker 05: Where does the definition of security guards say that if there's [00:17:37] Speaker 05: So if your client had hired a security guard at one of these facilities, they just hired a security guard, then all of the technicians at issue here would suddenly not be guards anymore? [00:17:50] Speaker 04: I don't think that's true. [00:17:51] Speaker 04: I think it would weigh on the analysis because some of the instancy of the role of MRI technologists and nuclear medicine technologists would be removed. [00:18:00] Speaker 04: But I don't think that at the end of the day, you can avoid the fact that those individuals at those locations are tasked not generally, but very specifically with protecting the employer's property and also with protecting [00:18:16] Speaker 04: fellow employees and visitors from the harms that relate to their specific modality. [00:18:23] Speaker 04: So it is distinguishable. [00:18:24] Speaker 04: It's not a general obligation to safety. [00:18:27] Speaker 04: It's very specified. [00:18:28] Speaker 04: And the evidence of that is borne out by the records that was created. [00:18:33] Speaker 05: I'm trying to figure out, this guard definition could include almost everybody. [00:18:39] Speaker 05: Certainly, we know it's not limited to my most traditional sense of what a guard is. [00:18:45] Speaker 05: I got that the people at the metal detectors are guards, I get that. [00:18:50] Speaker 05: But it's a pretty malleable definition. [00:18:52] Speaker 05: So I'm trying, if you could articulate for me, not in facts here, but articulate the legal rule of the test that you would have us adopt that would distinguish why the technicians at issue here are guards in a way that my law clerks who get security training and briefing [00:19:13] Speaker 05: and have serious obligations about keeping court property as well as court personnel safe are different. [00:19:20] Speaker 05: Just what's the legal definition, the legal rule I could apply in future cases? [00:19:25] Speaker 04: Sure. [00:19:25] Speaker 04: And I think that the answer to your question has to distill down from board precedent, right? [00:19:31] Speaker 04: I mean, I could create a rule, but it would be self-serving. [00:19:34] Speaker 04: So I think what we have to do is actually look at what the board has decided and where they've drawn the lines. [00:19:39] Speaker 04: And where the board has drawn the lines, there are a couple of, I think, key points. [00:19:44] Speaker 04: And I think that in this case, these employees meet those key points. [00:19:47] Speaker 04: You have to show that they are specifically tasked with protecting property and protecting the people who are on. [00:19:57] Speaker 05: What does that mean? [00:19:58] Speaker 04: So I think that, you know, like a general security training where everybody is told like this is where the fire alarm is doesn't quite cut the mustard, but rather somebody who's received particularized and special training to say, for example, you cannot enter zone for because your pacemaker might fly out of your body. [00:20:17] Speaker 04: thereby injuring you and potentially other people, those are distinguishable. [00:20:21] Speaker 04: I think this relates back to the board tries to make a similar point and says everybody at the facility knows not to let someone in zone four. [00:20:28] Speaker 04: There's a really big difference between a janitor being told to close a door and an employee who knows it is their job. [00:20:36] Speaker 04: their specific job to make sure that Zone 4 is approached. [00:20:40] Speaker 04: As a nuclear medicine technologist, it is your job, your specific job, to make sure that radioactive isotopes that could literally poison the water supply of a town do not leave the hot lab within the nuclear medicine facility or department. [00:20:56] Speaker 04: So there's a particularized and specific [00:21:00] Speaker 04: safety function that these individuals fulfill. [00:21:04] Speaker 04: The other thing the board would question if you wouldn't mind. [00:21:06] Speaker 04: Sure, of course. [00:21:08] Speaker 05: And JA21201, it talks about allowing security personnel into the MRI area. [00:21:17] Speaker 05: Does that mean that VATNET does have its own security guards at some of its facilities? [00:21:22] Speaker 04: Is it the transcript from the hearing I assume you're referencing? [00:21:27] Speaker 04: Jay 201 refers to it. [00:21:31] Speaker 04: It may be the case that there are facilities that have security. [00:21:35] Speaker 04: These manuals apply not only to the facilities that issue here, but a broad number of facilities. [00:21:41] Speaker 05: I think this issue here have a security guard. [00:21:44] Speaker 04: There's no evidence in the record of that. [00:21:45] Speaker 04: And to my knowledge, they do not. [00:21:47] Speaker 04: I cannot recall that. [00:21:49] Speaker 05: You didn't put evidence into the record one way or the other. [00:21:52] Speaker 04: I don't recall that we did know the records quite extensive, but I don't recall. [00:21:56] Speaker 04: Um, and I was involved in the underlying proceedings, but I don't recall that they had, um, security personnel and, or any that had these, again, when we're talking about specific security functions, even if there were a security guard, it's my understanding from the evidence offered by dr. Vartani that those individuals wouldn't have access to many of these areas where these employees are tasked with policing, um, security. [00:22:21] Speaker 05: Thank you. [00:22:21] Speaker 05: Do my colleagues have any further questions? [00:22:23] Speaker 02: I have a follow up on that. [00:22:24] Speaker 02: Do you have JA-201 handy? [00:22:28] Speaker 04: I can make JA-201 handy, yes. [00:22:33] Speaker 02: While you're doing it, it refers to security guards and security personnel. [00:22:38] Speaker 02: Is your position that those references are to the techs or [00:22:50] Speaker 02: Because if not, I think the answer to Judge Milet's question has to be that there are security guards, the kind of security guards we think of when we think of security guards. [00:23:04] Speaker 04: I don't think that's accurate. [00:23:06] Speaker 04: I do see the reference you are both making to security personnel, police, and guard screening. [00:23:11] Speaker 04: And two points in response. [00:23:12] Speaker 04: One, it's not clear to me that these references relate to security personnel who are employed [00:23:19] Speaker 04: by a facility or on behalf of the facility. [00:23:23] Speaker 04: So for example, police officers might be outsiders who accompany. [00:23:27] Speaker 04: I note that it looks like part of this policy is about pediatric screening or maybe a minor is being accompanied in. [00:23:34] Speaker 04: So I don't think it's clear at all. [00:23:37] Speaker 04: The other thing I'll say is I'll note that the manual explicitly delineates the security function performed by the MRI technologists as opposed to those security personnel. [00:23:48] Speaker 04: It says the police and security guards have to be screened by the MRI personnel in order to enter. [00:23:54] Speaker 04: It is the function and the ever present duty of the MRI technologists to enforce the security of those zones surrounding their work area. [00:24:02] Speaker 04: And that's, you know, regardless of the presence of a security officer, that's their job. [00:24:07] Speaker 04: Their duties in that regard, they're ever-present. [00:24:10] Speaker 04: They run in the background of any image they're performing. [00:24:14] Speaker 04: The magnet is always running, the isotopes are always radioactive. [00:24:19] Speaker 04: It is indeed the case that these individuals do constitute guards, and therefore, this is another reason why this case [00:24:26] Speaker 04: the court must deny enforcement of the board's orders in these cases. [00:24:31] Speaker 04: I am happy to take more questions on either of those issues or any of the others that were raised by our briefing, but I am over my time. [00:24:40] Speaker 04: So I would ask for a moment on rebuttal and I'm happy to proceed as you wish. [00:24:47] Speaker 05: Any further questions? [00:24:48] Speaker 05: We'll give you two minutes on rebuttal. [00:24:50] Speaker 04: Thank you. [00:24:54] Speaker 03: Well, [00:24:56] Speaker 03: I'm Heather Beard for the NLRB, and we're asking you to enforce the board's orders in full. [00:25:01] Speaker 03: I can start with the guard issue, since if that's all right with your honors, given that that was what y'all were discussing. [00:25:07] Speaker 03: The first thing that I'd like to point out is yes, the board has given us guidance as to what the statutory language of 9b3 means. [00:25:15] Speaker 03: And it certainly is not, if there are other security guards, then we have a yes or no determination about these particular employees. [00:25:25] Speaker 03: And the key here is the board's decision, the board's decision in the Boeing case in which the principle is debated in our briefs is whether or not the person, the employee is employed as a guard to enforce against employees and other persons rules to protect property, et cetera. [00:25:47] Speaker 03: That has been interpreted by the board as meaning the regular duties of the employees [00:25:55] Speaker 03: have to be such that what they do that is guard like is not minor and incidental to their duties and what I don't want lost here is what the regional director and the board was looking at is that these employees regular duties are to scan patients for various diseases and in the service of doing those scans what they are doing is making sure [00:26:17] Speaker 03: that they do it in the best way possible for the patients and for the hospital. [00:26:24] Speaker 03: And in this instance, the record evidence, which again is the burden on the party trying to demonstrate that there should not, that these are guards, the burden there is to establish that they are guards employed as guards under the act. [00:26:40] Speaker 03: And here the record evidence does not demonstrate that they are [00:26:44] Speaker 03: acting in the ways that would constitute guards in a way that is anything other than minor incidental to what their main duties are that they're trained for, which is to do the scans of patients and to make sure that they get the best scan that they can for the doctor. [00:27:01] Speaker 05: As a guard, do you have to have authority over broader areas of the premises, [00:27:13] Speaker 05: employers premises than just where you are doing your other job as well? [00:27:19] Speaker 03: There's no delineated sort of standard. [00:27:23] Speaker 03: And in fact, the Bowen case makes clear that there are traditional guard like actions that employees are doing. [00:27:30] Speaker 03: In this case, we only have in the facts that these MRI technicians and the nuclear pet technicians [00:27:36] Speaker 03: They do sort of in their own area, they're making sure in the context of their duties with regard to diagnostics that they're keeping the diagnoses going and the scans going the way that they should. [00:27:47] Speaker 03: I'm not aware that it needs to essentially be either small part of the premises or a large part of the premises. [00:27:55] Speaker 03: The key here is whether or not it's looking at their regular duties. [00:27:58] Speaker 03: And again, there's language that's conjunctive about protecting the property of the employer. [00:28:05] Speaker 03: also as against other employees, coworkers. [00:28:09] Speaker 03: And one of the other things that on this record, again, the burden of proof being with the employer here is very paltry that a regular part of the duties of an MRI technician or nuclear technician here is to guard against employees who would be trying to come in and out with this sign on the door that says Level 4. [00:28:30] Speaker 03: And in fact, in that [00:28:32] Speaker 03: in that jurisprudence what the board has done. [00:28:34] Speaker 03: And that's why other employees like Judge Millett's hypothetical about your law clerks comes in. [00:28:38] Speaker 03: The board has consistently found the purilator case, for example, that where employees have duties with regard to security that are no greater than that of other categories of employees. [00:28:49] Speaker 03: For example, in this case, the manual does say that folks who are custodians and others besides the MRI and PET techs that are in that area have the responsibility to ensure that it is safe [00:29:02] Speaker 03: that that does not constitute then a guard of one particular unit here. [00:29:06] Speaker 03: And so what the regional director did here is important is based on the record that evidence that there was presented made the very reasonable determination here that there was no showing that these employees were guards such that they should be denied the representative of their choice, which is the union in this case. [00:29:26] Speaker 03: And so I'm certainly happy to take further questions on the guard issue. [00:29:30] Speaker 03: I do want to make sure I address all of your questions, however, on the tally of ballots. [00:29:37] Speaker 02: I was going to say before we turn to the tally, there's the allegation that someone, the election monitor at one of the sites was staring at the wall the whole time and reading the newspaper the whole time. [00:29:55] Speaker 02: I get that no union election is going to be in laboratory conditions, but on a spectrum of like laboratory conditions to unfair conditions, where on that spectrum would you put the one election monitor is not looking at the ballot box, but it is instead staring at the wall and reading the newspaper? [00:30:16] Speaker 03: Sure. [00:30:16] Speaker 03: Well, I certainly on that spectrum, I put it on the side of not warranting a [00:30:23] Speaker 03: Hearing, which is what we're looking at here if we accept this true what the proper was, which is what we, which is the responsibility of the regional director of the board here, the proper was that it appeared that that's what was happening not every single moment of the entire election, but I would put that on in a spectrum lower than. [00:30:41] Speaker 03: a laboratory conditions violated, particularly here where there was no proffer, that either the observer said that there was any problem, that there was any problem that was going on during that case, or that whatever positioning, it was a little confusing in the proffer, exactly what the positioning was alleged of the board agent would not be such that should there have been a problem or something brought to her attention that she couldn't address it right away. [00:31:07] Speaker 03: So it's not a good thing to sit and face the wall for sure. [00:31:11] Speaker 03: If that is, and again, that wasn't even, I don't think the specific proffer that it was for the entire time, it's that she, that the board agent was, you know, what seemed to be, I think, for the duration of the election. [00:31:24] Speaker 03: But we would absolutely hear what the board was saying is that even if granting that there was a hearing there, that was not something in this instance that was objectionable. [00:31:34] Speaker 03: Certainly the cases that there are sort of, [00:31:38] Speaker 03: setting forth what the parameters would be, involve cases, for example, where there was an altercation at the ballot box, which took the board's agent's attention away for a while, which you had nothing like that here. [00:31:50] Speaker 03: And so that's how we would answer that. [00:31:52] Speaker 02: I agree. [00:31:55] Speaker 02: Turning to the tally, assume that [00:32:03] Speaker 02: assume I think that there it's imaginable that the board could have made a reasoned explanation for doing the tally at waiting to the end of the two days through the tally for efficiency reasons, lack of of personnel and they just can't be in every place at every time. [00:32:22] Speaker 02: But in terms of the explanation, they buried that in a very short footnote that seems about as [00:32:30] Speaker 02: unelaborate as what this court found to be insufficient reasoning in the, I forget the real estate one, Nathan Katz. [00:32:43] Speaker 02: And then assume that I think this idea that a fair election requires you to keep information away from people is not [00:33:00] Speaker 02: assume I'm not persuaded. [00:33:03] Speaker 02: But I'm open to this being basically harmless. [00:33:07] Speaker 02: In fact, it seems like maybe it probably was harmless. [00:33:11] Speaker 02: So walk me through, I know you don't agree with my two assumptions, but assume those first two things, but tell me how we can still affirm or deny the petition. [00:33:23] Speaker 03: Sure. [00:33:24] Speaker 03: Well, with regard to [00:33:28] Speaker 03: Was it or was it not harmless? [00:33:29] Speaker 03: We don't have any evidence here or any proffer here other than a couple of employees would say they would have liked to have whatever the information was. [00:33:38] Speaker 03: And we would, of course, say that that isn't a demonstration that there was any harm. [00:33:42] Speaker 03: So I would agree with you there. [00:33:43] Speaker 03: But in terms of, I believe your first two assumptions were that it could be reasonable for administrative reasons. [00:33:51] Speaker 03: And I believe I agree with that. [00:33:53] Speaker 03: And I'd like to add to that the board's footnote I think that you're referring to. [00:33:57] Speaker 03: also does not take the place or supplant what the regional director said in terms of why this happened. [00:34:04] Speaker 03: And therefore, I would say to you that the way that the board a lot of times does its decisions in footnotes is to say, we agree with the administrative law judge or in this instance, the regional director. [00:34:14] Speaker 03: And then the footnote is sort of a supplementary as opposed to the only reason. [00:34:19] Speaker 03: And so I would say the robust nature of what the RD said is also included here [00:34:24] Speaker 03: in what the board was finding with regard to why it was administrative, number one, convenient, but also very important that I don't think we all discussed earlier. [00:34:36] Speaker 03: And I think this answers your question, Judge Walker. [00:34:37] Speaker 03: The problem with not doing it this way in the regional director's mind wasn't like in Nathan Katz, a general, oh, it would be unfair. [00:34:45] Speaker 03: It's we would like to prevent objections. [00:34:48] Speaker 03: And that is very important here because of the prospect of delay. [00:34:53] Speaker 03: What happens unfortunately in union elections that can take place with huge different units all over the place or in big or even in small units is that employers seek delay. [00:35:04] Speaker 03: They have every right to make every objection that they possibly can. [00:35:07] Speaker 03: But what this RD was doing that the board agreed with as well as the administrative efficiencies of doing this was let's limit objections that can take place. [00:35:17] Speaker 03: And in this instance, should there be dissemination in some manner of information that may or may not have been [00:35:23] Speaker 03: true varying objections I'm sure employer could possibly think of that would be objectionable. [00:35:28] Speaker 03: The regional director wanted to do administrative efficiency as well as let's limit the amount of objections or dissemination that could take place. [00:35:37] Speaker 03: And so choosing to do that [00:35:39] Speaker 03: There is no case law that has been cited that there is any sort of First Amendment or other right to know at one facility, particularly here the paradox. [00:35:48] Speaker 03: Let's flip it the other way. [00:35:49] Speaker 03: The paradox is the employer has been arguing these are separate individual units that should not do one election. [00:35:56] Speaker 03: So the board is treating them all separately. [00:35:58] Speaker 03: And as the RD said, paradox here is then that somehow, even though they're all separate for the employer, they now all have a right to know each unit what another unit that supposedly has no community of interest with the others is doing. [00:36:12] Speaker 03: And so, you know, sort of spinning it back to your initial hypothetical about La Mirada, the first one, [00:36:18] Speaker 03: At that first one, there's absolutely no effect on the one who goes first. [00:36:25] Speaker 03: And so we'd also say, given that the discretion the RD has and using the teaching of Nathan Katz, the RD acknowledged what this court said, which was, hey, explain yourself. [00:36:36] Speaker 03: And here we believe that the robust explanation that the RD gave, buttressed by what the board said, was absolutely within the regional director's broad discretion here [00:36:47] Speaker 03: fully explained and actually didn't result in any harm that can be seen from anything on this record. [00:36:53] Speaker 03: So here we do firmly believe his discretion was exercised in the way to balance addressing all the concerns, getting all the votes, getting everything done administratively efficiently and to [00:37:10] Speaker 03: to prohibit there being objections on this part. [00:37:14] Speaker 02: Nathan Katz didn't engage in any of this materiality, prejudice, harmless error analysis. [00:37:23] Speaker 02: What's your best argument for why we should? [00:37:27] Speaker 03: Sure. [00:37:27] Speaker 03: Well, I would say that in this particular instance, the argument would be that the board here was implementing its rules and regulations. [00:37:38] Speaker 03: And in implementing its rules and regulations, it gets broad discretion. [00:37:42] Speaker 03: And so when we're looking under, this wasn't briefed, but when we're looking at under administrative law and that sort of thing, if there's a decision, and even if that decision is in some way arbitrary, which again, we strongly view it as not here, then should there be harmless error, should the error be harmless, then that isn't reason to overturn something like the results of the election in this instance. [00:38:05] Speaker 03: And so here, we would say that the best argument is [00:38:08] Speaker 03: that merely because employees may want to know what happened in the other elections hasn't demonstrated that there was the standard to overturn an election being met here, which is that there was no free and fair election. [00:38:21] Speaker 03: And I think it's far from that in this case. [00:38:23] Speaker 03: And I think that should the court wish to apply harmless error, this is one of those agency decisions that is within the decision-makers discretion, but that is not [00:38:35] Speaker 03: done without explanation, without reason, or with any harm. [00:38:40] Speaker 03: So I think that would be the best argument. [00:38:44] Speaker 01: You have a regulation though, which seems to require the board to count and tally the ballots and make them immediately available to the parties. [00:39:03] Speaker 01: And that seems to reflect policy judgment that more information is better and information sooner is better than information that's later. [00:39:17] Speaker 01: So why shouldn't we invalidate this just on the ground that it's inconsistent with the regulation? [00:39:25] Speaker 03: And I believe your honor is referring to the provision of our. [00:39:30] Speaker 01: I'll give you the site 29 CFR 102.69 a seven, which says on conclusion of the election the ballots will be counted and a tally of ballots prepared and immediately made available to the parties. [00:39:53] Speaker 03: I would say that in the board, in this first instance, interpreting that regulation has under the independent rice case, as well as had the board explained why it was not doing so at the end of each individual one in Nathan Katz, this court left open the possibility that the board could do so by explaining its interpretation of that regulation, given all the discretion that the board must give delegate to the regional director for purposes of administering [00:40:22] Speaker 03: elections all across the country is that in this instance, that was the best way to most fairly vindicate the rights of both the employer and the union, and most importantly, the employees. [00:40:34] Speaker 03: And that would be why this court should not invalidate on the basis of simply that particular. [00:40:41] Speaker 01: The regulation says count the ballots and make the tally immediately available. [00:40:49] Speaker 01: Right. [00:40:49] Speaker 01: And they're pretty categorical. [00:40:53] Speaker 01: And it seems very hard to reconcile with any reasoning that, oh, gosh, we should hold back information because it might give rise to objections. [00:41:10] Speaker 03: Well, I understand your concern, Your Honor. [00:41:13] Speaker 03: I believe, however, that the interpretation of this regulation that the board has done, even in instances which I'm not [00:41:19] Speaker 03: sure that even the employer would disagree with, for example, in cases where there's a big multi-employer unit and they're doing an election. [00:41:26] Speaker 03: This kind of thing doesn't happen all the time, but it certainly does happen. [00:41:30] Speaker 03: And as Judge Walker was positing, certainly in an instance where there isn't any sort of harm that's been, you know. [00:41:37] Speaker 01: What you're talking about is a gloss on immediately to mean as soon as practicable, right? [00:41:46] Speaker 03: That's how, yes, that's how the board has interpreted its own regulation. [00:41:49] Speaker 01: Yes. [00:41:50] Speaker 01: So that brings us to your administrative efficiency justification. [00:41:56] Speaker 01: And as I understand it, we're talking about elections with 20 or 30 people voting per election. [00:42:07] Speaker 01: And at least as the facts on the ground in Irvine suggest, you have [00:42:16] Speaker 01: board officials and monitors from both sides on site. [00:42:22] Speaker 01: So the election's done and you're talking about counting 30 votes. [00:42:26] Speaker 01: What's so hard about that? [00:42:29] Speaker 03: Sure. [00:42:30] Speaker 03: I don't think there's anything that I would use the word hard about that, but I would say that given the fact that there would be representatives, that all of the other elections are overlapping in terms, not all of them, but some of them at the same time in same days, who could be president [00:42:45] Speaker 01: But at every site, there are representatives of both parties and there's a board official who's charged with ensuring that things go fairly. [00:42:57] Speaker 01: So why couldn't that board official just count the 30 votes when the election's done? [00:43:03] Speaker 03: I think what the regional director was thinking is given that we have so many of these, [00:43:10] Speaker 03: and given that there's the possibility of dissemination that could be in some way objectionable, and we could have delay should there be further objections, should there be many objections, the best way to be both, it's not just efficient, but also preclude there to be objectionable behavior with no risk of harm would be to wait until just the very next day after the last election. [00:43:36] Speaker 01: And what's the idea that dissemination could be objectionable? [00:43:41] Speaker 03: Sure. [00:43:42] Speaker 03: I'm sorry if I... Dissemination itself of something that is not objectionable isn't objectionable. [00:43:47] Speaker 03: I didn't mean to say that, Your Honor. [00:43:50] Speaker 01: What's the theory of harm that's consistent with the regulation that has a preference, if not a requirement, for making the tally available sooner rather than later? [00:44:03] Speaker 03: Sure, there can be a host of objections under board case law that parties can make to things that go on in elections. [00:44:10] Speaker 03: And one of the things, I mean, there's a lot of different precedents about when one party either says something that is true or isn't true, whether it's a forgery under the Midland standard, if it's not a forgery and there's the Van Dorn standard, which talks about whether or not it's still something is disseminated amongst the unit that is such that it can impact a free and fair election. [00:44:31] Speaker 03: a number of objections to various things that have happened at the election. [00:44:36] Speaker 03: For example, in this instance, I think you mentioned Irvine. [00:44:39] Speaker 03: There could be what the board agent has done. [00:44:41] Speaker 03: And to the extent that that conduct is or isn't objectionable, if it's spread out, if it is something that happens or didn't happen, and rumors can go around and affect the laboratory conditions of the election at different places, [00:44:56] Speaker 03: That's where the dissemination comes in. [00:44:57] Speaker 03: Dissemination of objectionable conduct can be a problem. [00:45:00] Speaker 03: And what the regional director was doing here is balancing 10 different elections on two days with the concern that there could be objections to this, what was going on. [00:45:14] Speaker 03: And given that there could be that risk in the discretion that the regional director had, the regional director made the determination upheld by the board that this was the acceptable way to run the election. [00:45:27] Speaker 05: Can I ask a tech? [00:45:28] Speaker 05: Are you done? [00:45:29] Speaker 01: Yeah, thanks. [00:45:30] Speaker 05: Just a technical question. [00:45:32] Speaker 05: Is the person who counts the votes, the board person who's there for the counting of the votes, the tallying of the votes, just the same person who's there on the scene? [00:45:40] Speaker 03: The board agent, that's correct. [00:45:43] Speaker 05: And if there are no further questions on the tally, I just had another question on another topic real quick. [00:45:51] Speaker ?: OK. [00:45:52] Speaker 05: What does it mean for a union to be affiliated with another union? [00:45:56] Speaker 03: Sure. [00:45:58] Speaker 03: My understanding is that if a union is affiliated with another union, there's been a vote of one union of their members to join with the other union. [00:46:15] Speaker 03: So I guess I should, this reveals my ignorance of exactly what it means, but what it means for purposes of this case is whether the employees know [00:46:23] Speaker 03: who it is that they are voting. [00:46:24] Speaker 05: This is why I'm asking the question, though. [00:46:26] Speaker 05: I'm pretty sure you just described affiliation. [00:46:28] Speaker 05: It sounds not like affiliation, but it sounds like merger. [00:46:31] Speaker 05: No. [00:46:31] Speaker 05: So affiliation just means we sometimes pool our resources and share common information and support each other in different ways. [00:46:43] Speaker 05: But we're still independent entities. [00:46:46] Speaker 05: One thing, if they become less independent, I just don't have any idea. [00:46:49] Speaker 05: And nobody bothered to explain what it was in either brief. [00:46:52] Speaker 03: Sure. [00:46:53] Speaker 03: Well, I'd first off say that in my limited knowledge, it certainly needs to be something formal in terms of the name. [00:47:02] Speaker 03: For example, when you have a union and then at the comma AFL-CIO, something like that, it is certainly formal, simply because union share resources and those types of things doesn't make a union affiliation. [00:47:14] Speaker 03: So that's what I'd say number one. [00:47:16] Speaker 05: And I'm sorry, could you repeat that question? [00:47:23] Speaker 05: Sorry, I don't remember all the names of the, is the union that was seeking to unionize these employees, and then it's supposedly affiliated with IAMAW, is the union that was elected, or at the end of the election, was the union that was elected still its own union and its own name? [00:47:43] Speaker 03: Yes, yes. [00:47:44] Speaker 03: That's always been the case. [00:47:45] Speaker 03: There's never been the machinist on any [00:47:49] Speaker 03: in any way on the paperwork in this case at all, which again, also distinguishes this case from the other cases on the paperwork. [00:47:57] Speaker 05: I'm just talking about in reality, this union, it's an independent union that maybe affiliation here just means some coordination or shared interests, or is it? [00:48:08] Speaker 03: Right, Your Honor, you know, I don't know all I'm sorry, I don't know all of those answers. [00:48:13] Speaker 03: And I think that illustrates why [00:48:15] Speaker 03: It's insufficient for the employer to get a hearing with regard to this, given that the employer would essentially be getting and asking questions to ascertain whether or not there was an affiliation that then the employees would have been concerned about such as not to vote. [00:48:33] Speaker 03: There are so many different steps along the way, which the board has said over and over, a hearing is not for [00:48:39] Speaker 03: um, to suss out that type of speculation. [00:48:42] Speaker 03: It's if, if assuming all the facts that they have, they have stated, is there a reason to overturn a fair, free and fair election? [00:48:48] Speaker 03: And there simply was nothing of the kind in this case. [00:48:51] Speaker 05: So affiliation is not, is there is not sort of a term of art in this, in the labor area here? [00:48:57] Speaker 03: I believe it's a term of art. [00:49:00] Speaker 03: That's my personal belief. [00:49:03] Speaker 05: There's a term of art. [00:49:03] Speaker 05: It should have a definition. [00:49:06] Speaker 03: Well, in this case for sure, [00:49:08] Speaker 03: Affiliation was never ever, a problem was never, as we point out in the brief, ever raised by the employer in this case. [00:49:16] Speaker 03: In fact, I believe they stipulated to the National Union of Healthcare Workers as the union, as the name on the ballot. [00:49:22] Speaker 03: And so to the extent there is any sort of problem, again, as I would say, that would have overturned the free course of this election, the burden would certainly have been on the employer to present facts that would, to present an allegation that would [00:49:36] Speaker 03: mean that there had been an affiliation. [00:49:39] Speaker 03: And I just don't think that there is such a proper here. [00:49:43] Speaker 05: No further questions. [00:49:44] Speaker 05: Well, if this is at Lammers or Lammers, Lammers, Tesla, my vision's not good enough on this little point to settle Lammers. [00:49:54] Speaker 05: I'm saying I apologize. [00:49:55] Speaker 05: I'm saying it wrong. [00:49:55] Speaker 05: We'll give you two minutes. [00:49:57] Speaker 04: You've got it perfectly right. [00:49:58] Speaker 04: I would like to use my two units to address some arguments raised by the board very briefly on guard status. [00:50:04] Speaker 04: The board has pointed you to Boeing. [00:50:06] Speaker 04: Boeing is an opposite. [00:50:07] Speaker 04: The reason is because in Boeing, the individuals at issue did not possess guard duties that they regularly performed. [00:50:15] Speaker 04: They only performed guard duties under the statute at certain points of time. [00:50:20] Speaker 04: I think it was when employee other employees were on strike or something like that. [00:50:23] Speaker 04: It wasn't a constant ever present guard duty. [00:50:27] Speaker 04: And I think the record will reflect quite clearly that these employees that issue do have to enforce their, you know, statutory guard duties in terms of exclusion from areas against other employees and that they do have greater responsibility than other employees. [00:50:42] Speaker 04: Moving next, very briefly, to the question of the Irvine election. [00:50:46] Speaker 04: I think the offer of proof is very clear, and it speaks for itself. [00:50:48] Speaker 04: I'd encourage you to look at it. [00:50:50] Speaker 04: The offers of proof are all in the appendix at 1031. [00:50:54] Speaker 04: They very clearly explain that the employer's election observer at Irvine literally watched the board agent for the entirety of a voting session sit with her back to the voting box and to the room. [00:51:07] Speaker 05: The fact that the board... That's just not what the proffer says. [00:51:11] Speaker 04: It says that she is in a position where she can't see. [00:51:15] Speaker 05: Sorry. [00:51:16] Speaker 05: Let me read the proffer to you. [00:51:17] Speaker 05: I think that'll be better. [00:51:18] Speaker 05: She was seated in a chair that faced a wall. [00:51:24] Speaker 05: Well, almost any chair in a room is going to face a wall. [00:51:29] Speaker 05: Doesn't say the ballot boxes in between her and the law. [00:51:32] Speaker 05: It says her back was turned to the entrance to the room in which the election was taking place, comma, [00:51:41] Speaker 05: the room in which the election was taking place in the ballot box. [00:51:46] Speaker 05: That could mean to me just as much that we're talking about the room that has the election in the ballot box, but it never actually, you think if her back was to the ballot box, it would have said her back was turned to the ballot box, not to the entrance to the room. [00:52:01] Speaker 05: It's very craftily articulated properly, I shouldn't say craftily, excuse me, very carefully, it seems. [00:52:09] Speaker 05: And I don't see, actually, you could read it one way, her back was to the ballot box, but you could read another one, because the one thing it calls out that her back was to was to the entrance to the room. [00:52:20] Speaker 05: And that sounds like a- Everything after that is defining the room, which room, the room in which the election was taking place in the ballot boxes. [00:52:26] Speaker 04: And that sounds to me like a substantial issue of material fact, upon which the board was obligated- Just by vaguely phrasing an offer- I don't think- [00:52:37] Speaker 04: With all due respect, I don't think it's vague. [00:52:39] Speaker 04: I think it raises a legitimate issue. [00:52:41] Speaker 04: What could she see? [00:52:42] Speaker 04: What couldn't she see? [00:52:43] Speaker 04: The offer of proof says she can't see the entrance. [00:52:45] Speaker 04: She can't see the ballot box. [00:52:46] Speaker 04: She can't see the contents of the room. [00:52:47] Speaker 05: It does not say she can't see the ballot box. [00:52:48] Speaker 05: That's your problem. [00:52:50] Speaker 04: I respectfully disagree. [00:52:52] Speaker 04: But I do understand. [00:52:54] Speaker 04: I think your point is well taken. [00:52:55] Speaker 04: Excuse me. [00:52:58] Speaker 04: My apologies. [00:52:59] Speaker 04: I'm sorry. [00:52:59] Speaker 05: Right. [00:53:02] Speaker 05: Where does it say her backs to the ballot box? [00:53:05] Speaker 04: I think that. [00:53:06] Speaker 04: That statement and I'm pulling up the offer free for myself here. [00:53:09] Speaker 05: I'm sorry. [00:53:13] Speaker 05: When I was 63 in the joint appendix is what I have unless there's something I have the wrong one. [00:53:17] Speaker 04: No, I think you probably have. [00:53:18] Speaker 04: I mean, that should be the only one. [00:53:39] Speaker 04: Her back was turned to the entrance in the room, to the room, the room in which the election was taking place, and the ballot box. [00:53:47] Speaker 05: Right. [00:53:47] Speaker 05: See, that's a clause, a comma, a clause there that's defining which room. [00:53:52] Speaker 05: The room with the ballot box. [00:53:55] Speaker 04: The room where the, the room where the election would be taking place in the room with the ballot box would be the same room. [00:54:02] Speaker 04: So in either event, her back is turned to the room where the ballot box is located. [00:54:13] Speaker 05: She's not even in the room where the election's taking place, is that what you're alleging? [00:54:17] Speaker 05: She's either in the room where the election, the election and the ballot box are in the same, the election is occurring and the ballot box are in the same room, right? [00:54:24] Speaker 04: Yes. [00:54:25] Speaker 04: If the election is occurring and the ballot box are in the same room, I will say, and this is, I don't want to- Wait, wait, wait, wait. [00:54:29] Speaker 05: I just want to clarify something here. [00:54:31] Speaker 05: Is the argument here that she wasn't even in the room? [00:54:34] Speaker 04: It's entirely possible, yes. [00:54:36] Speaker 05: Oh, no, no, no. [00:54:37] Speaker 05: It's your proffer. [00:54:38] Speaker 05: You had someone who's described what happened. [00:54:40] Speaker 05: Is that what you're talking about? [00:54:41] Speaker 05: I didn't read that at all. [00:54:42] Speaker 05: I thought it was that she was in the room, but her back was to the ballot box. [00:54:46] Speaker 05: That's what I thought you were talking about. [00:54:47] Speaker 04: All right, so here's what I can tell you about these elections. [00:54:52] Speaker 04: And this is extra record proof, so I understand you won't be able to consider it. [00:54:56] Speaker 04: These elections took place in very small employee break rooms. [00:54:59] Speaker 04: Sometimes there wasn't room for everyone to sit in the room. [00:55:03] Speaker 04: It is entirely possible that this reference is to someone who is seated where if they were turned in the right direction, they'd be able to see what was happening in the room, but they weren't actually in the room. [00:55:12] Speaker 04: I do understand that the offer of proof is what it is. [00:55:15] Speaker 04: And I do stand by our position that to the extent it is unclear, given the seriousness of the allegation that the hearing should have been held, I do, if you will allow me just a brief moment more, I do want to speak very briefly to the question of the impounding of the ballots. [00:55:31] Speaker 04: Very briefly. [00:55:33] Speaker 04: Okay, when the board when the board's appellate lawyer says, I think what the RD was thinking there to you in an oral argument. [00:55:42] Speaker 04: It's evidence that the board does not have a sufficient underlying rationale or basis for the action it took [00:55:48] Speaker 04: And in fact, the regional director did not give a robust explanation. [00:55:53] Speaker 04: He said two things administrative efficiency, which is arguably not a basis, but certainly is not one here for all the reasons we have discussed there were literally board agents at each of these spots who could have counted in some cases three ballots and left. [00:56:08] Speaker 04: So there's no grounds to make an argument about administrative efficiency, no reasonable grounds. [00:56:13] Speaker 04: And then this question of entirely speculative harm in this entirely paternalistic approach that the board is going to deviate from its own procedure. [00:56:23] Speaker 04: which is delineated in its rules to not and not follow that on the basis of some alleged speculative harm that finds no basis whatsoever in this record is is arbitrary. [00:56:34] Speaker 04: It's capricious, and it's a decision that cannot stand for all those reasons. [00:56:38] Speaker 04: The employers asked that these decisions be vacated. [00:56:41] Speaker 05: All right. [00:56:41] Speaker 05: Any further questions for my colleagues? [00:56:44] Speaker 05: All right. [00:56:44] Speaker 05: The case is submitted. [00:56:45] Speaker 05: Thank you, Council.