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Case number 22-1312 et al.

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GHG Management, LLC, doing business as Windy City Cannabis, doing business as Curly Wheat Street Petitioner versus National Labour Relations Board.

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Mr. Baskin for the petitioner, Mr. Soder for the respondent.

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Morning, Council.

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Mr. Baskin, please proceed when you're ready.

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Morning.

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Maurice Baskin appearing on behalf of Cureleaf, Weed Street.

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That's to save time for rebuttal of the company petition for review of the National Labor Relations Board's certification of a union election by a one vote margin.

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And it was an election plagued by multiple ballot handling irregularities.

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committed by the Chicago region of the board handling the election.

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This case really on appeal boils down to what is the standard that the board should have used to resolve the outcome of the case.

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And this court in the national hot rod case found the correct standard is clear.

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That's the quote from the panel in voter ballot handling cases of the board.

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and the clear standard is if the board itself causes an irregularity and the number of voters possibly disenfranchised possibly disenfranchised affect the outcome in an election no certification of the result is appropriate and the court quoted

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from same cases that we quoted from in filing the request for review.

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That's the Garda case and the Wolverine dispatch case, both of which dealt with ballot handling.

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That is the most sacrosanct part of the election process.

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That's why the standard is possible.

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disenfranchisement, not the standard that the board applied in this case.

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This court has repeatedly called the board to account when they announced the policy and then failed to follow it and don't overrule it, they just ignore it.

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And in a case on very, very similar facts, they ignored the policy, they ignored their own policy, they applied a case called Guardsman, which has nothing to do with ballot handling.

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It has to do with a pre-election.

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The employer wanted to do a pre-election speech, and they didn't give him the right time.

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Totally different scenario.

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Mr. Baskin, I'm going to take a minute of your time because I want to just set out my version of what happened is correct.

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All right.

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On the side of the voters, and that's Ms.

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Ratten in this case,

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On March 4th, which was the last day, according to the notice, that if you didn't get a ballot, I'm going to take this off.

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I can hear myself.

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That if you didn't get a ballot, you had to request one.

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All right.

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Even the board in its footnote four says at the beginning of March, she requested that duplicate ballot.

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She actually had done more than that.

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She'd called twice.

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She hadn't left messages.

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She'd even asked for the cell number.

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of the board agent.

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She was that intent on getting her vote in.

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So on the fourth, at least it's clear from my reading of the record that she makes the request.

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It then takes the board six days to mail it.

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She gets it on the 15th.

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She has a conversation with the board agent and she tells that board agent, I'm sending it in today.

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That's to me the most important fact in the whole case or one of them.

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Anyway, and so she waits for the next day and until the 18th.

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Now, there was no reason for her to think that it would take more than five days for it to get there because it took the ballot five days for it to get to her.

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It takes triple that time, 15 days, one day after the election.

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That's her side of it.

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Then you look at what the board agent did in this happy Monday email.

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And she says, and this is on the 22nd of March.

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And she says to the parties, so we've received ballots from all at least that have told me they've sent their ballots in.

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That is not true with respect to Ms.

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Rhett, who told her on the 15th, or the 16th, I'm sending it in today.

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She actually sent it in on the 18th.

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So, but then she goes on this board agency to say, thus, we'll be going forward.

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In other words, completely leaving one person in this determinative one vote election out of the equation.

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Then when the vote is taken and it's 11 to 10, the next day they get Ms.

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Ratten's ballot.

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And I believe the company had

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asked for, after the count, the employers representative emailed and said, please preserve any late arriving ballot envelopes.

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Okay, so they get Ms.

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Ratlin, who had sent it three weeks before.

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Now the board agent says, well, I'd like to correct what happened.

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Then she says the three voters ballots that were received on Friday, March 19th,

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that at that point they had then received a ballot from each voter that had contacted her.

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That is not true because Ms.

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Bratton doesn't get counted until, or doesn't get counted at all, but doesn't get received until the day after the election.

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And then she, the board agent goes on to say, I'd like to correct what I said way back.

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And,

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I don't see how that's relevant.

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In other words, when she says, well, what I meant was I received ballots of the people who had told me to confirm that I got the ballots.

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And to me, that is irrelevant.

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If there's nothing in the record, that board agent would have followed up if she hadn't got, which she did not get.

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She never got the ballot from Ms.

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Bratton.

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So the fact that,

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She tries, the board agent tries to say, well, what I meant was I got it from everybody who asked me to confirm.

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That's not relevant unless when she didn't get it, she called, kept a tally and called and said, Ms.

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Ratten, I haven't gotten your ballot yet.

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And then when you look at Hot Rod, that it's only the possibility here, there was disenfranchisement of the one voter that made a difference.

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I'm finished.

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Well, you have you have stated accurately the facts of this case.

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X through a discussion of those facts, and I would just say what you've highlighted in that recitation is the multiple irregularities that the board was for which the board was responsible.

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The six day delay in sending the replacement ballot National hot rod was only a five day.

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So it's worse here, extending the balloting when it appeared that ballots were delayed and then misrepresenting whatever word you want to use.

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Statement was false.

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by the way, in her emails to the parties that she said she had not, you know, that all the ballots had been received from people who had contacted her.

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That was simply false.

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And her attempt to clarify is not a clarification at all and frankly is simply irrelevant.

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Beyond that, they knew the mails were running slowly and did nothing more to prevent further disenfranchisement.

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Even a one-day movement

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would have prevented disenfranchisement here.

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So the test is, was there a possibility of disenfranchisement caused by the board irregularities?

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This is a slam dunk case.

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The only way they avoided that was to ignore their own tests and to say, well, you have to show actual prejudice, although actually we did, to say you had to show beyond a reasonable doubt.

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We actually have that too, but we should not be there.

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This case stops with their failure to, and they don't acknowledge guard Wolverine, let alone National Hydro.

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They just move on and say, well, let's apply this guard smart case, which has nothing to do with facts here.

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In order to prevail, you don't need to show.

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And I don't understand you to be saying that the board representative who sent those communications was acting in any bad faith.

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No, I was intentionally misrepresenting something.

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Your point is that it just turns out to have given an incorrect impression.

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Well, everything had been received when in fact there was some.

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You know, the board said it was confusing.

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I think it's more than that.

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Maybe more than an incorrect impression, but it is not.

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I mean, it's a flat out statement that something happened.

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That did not happen and he knew it.

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She knew it.

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So but it is not necessary to our case.

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It is an irregularity.

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That's the standard.

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And did it have the possible effect of disenfranchising employee and a one vote election?

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Critical one vote.

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Not that she was the only vote that was not counted because there was another witness who testified that she had submit ballot and was never received.

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But you know, we're focusing on

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This particular voter, but mail delays were another aspect of our request for review.

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And as the dissenting opinion of the board said, taken together, it's an insurmountable case against the board finding and certifying this election.

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So I'll reserve the rest of my time for rebuttal.

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Unless you have a question.

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Yes.

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Do we know how far away Ms.

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Bratton lived?

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I mean,

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This is in Chicago and it isn't as if, this may not be in the record, it isn't as if that ballot had to travel clear across the country.

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No, it did not.

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She was definitely in the Chicago area.

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I don't have her address.

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But it was definitely within reason for her to think that her ballot would get there on time.

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And if the board had not delayed in sending the ballot to her, it would have.

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I mean, almost certainly, which is, again, not the standard.

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It's whether it possibly would have.

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It's not whether it was like in the record.

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I'm not sure how much this matters, but just to be fair to the record, there's also indications in the record that she could have acted more quickly.

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And that she actually got that board representative reached out and she may well have been legitimately very busy, but that there wasn't an effort made to reconnect with the board when they attended.

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And of course, the board agent was not allowed to testify, which under normal circumstances would create an adverse influence.

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against such a witness and the party who's not letting the witness testify.

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So you don't really have the record from the board agent's side, and whose fault is that?

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It's the board's fault.

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But go back to your question, it's just another irregularity in this whole process that resulted in the

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of disenfranchisement of the dispositive voter.

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And under the tests that must apply that your fellow panel has applied in this very, very similar situation, the enforcement action should be denied and the petition should be granted.

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Thank you.

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Could you try to call the board as a witness?

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Sorry?

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Did you try to call?

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Yes, and it's in our brief.

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It's in the each level that we had asked the board agent.

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It's under request for review and they denied contrary to their own precedent.

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There was really never a solid reason given as to why they wouldn't allow the board agent to testify.

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We inferred it's because the board agent had things to say that would not have helped their case.

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Thank you.

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Thank you, council.

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Mr. Sodder, we're lifting the board now.

[00:12:14] Speaker 03:
I think it's very important to start by laying out the standards for these, the two objections in this case, objection one and objection two, because it doesn't stop the way Mr. Baskin says with this possibility of disenfranchisement.

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When you have a situation where an objection concerns

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the board's standards and processes.

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You start with that, but then you go on.

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You have to prove that there was an actual possibility of disenfranchisement.

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And to do that, you apply the Lemco test.

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And the Lemco test asks whether, under an objective standard, the employees were given adequate notice of the election and an opportunity to vote.

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And or were they prevented from voting by conduct of one of the parties or by an unfairness in the scheduling or the mechanics of the election?

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So that is the full standard for objection one.

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It does not stop with the possibility.

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And what is fair about the mechanics of the election when the board agent said, I've got all the ballots back that they told me they'd sent.

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and knowing in Ms.

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Rask, she didn't have Ms.

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Rask.

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Well, now we're getting to the second objection and that one has its own standard, which is the standard under guardsman.

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And the question there is whether the agent's conduct raised a reasonable doubt as to the fairness and validity of the election.

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I have to say, in reading your brief, I wasn't entirely clear

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on how we're supposed to know which standard applies in which context.

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Well, I think that the premise of your brief, let me just ask this question at the outset.

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The premise of your brief is that the case might be different if the possible disenfranchisement standard applied to objection 2.

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No, well, are the- Well, let me ask you this.

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You think that the possible disenfranchisement standard

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Is that, are you calling it Lemco?

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Yes.

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Well, it's Guarda, but then you apply Lemco after that.

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Okay.

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So the Guarda-Lemco complex, that does not apply to objection two.

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No, because objection two deals with agent misconduct.

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Right.

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So I'm just, no, just to get the premise right.

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You're saying that that, the Lemco-Guarda framework does not apply to objection two.

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That's right.

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So that must mean that if the Lemco-Guarda framework did apply to objection two, the result might've been different.

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Otherwise we wouldn't care if it.

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So you must, the premise of your argument has to be, I think, that had the other standard, should the other standard have applied here, the result might have been different.

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Otherwise, I assume you would have made the argument that doesn't matter which standard applies.

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You didn't make that argument.

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So I'm... I think it's different, Your Honor.

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The question is not...

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The question is, what conduct, what is the issue we're dealing with?

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Is it an irregularity, something that where it was not misconduct, but it didn't maybe follow the way the rule should have been?

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In this case, perhaps the agent could have been more diligent in sending the ballot out, or is it outright misconduct?

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If it's outright misconduct, then what you're looking at is not just the disenfranchisement of a single employee, but does it put in question the overall fairness of the election?

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But how is the election not... It necessarily puts into question the outright fairness of the election if the result might have been different.

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Yes, Your Honor.

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But with Garda Lemko, Your Honor, if the...

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if you're looking at just the boards, the procedures, whether the board acted correctly or not.

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And what you focus on is the facts, as we know them here, the fact that there were some delays attributable to Mrs. Ratten, there were some delays attributable to the board, but ultimately,

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The buck stops on March 15th when Ms.

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Ratan has her ballot in hand.

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At that point, does she have an adequate opportunity to vote?

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That's the question.

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And at that point she has, as Judge Henderson noted, she has 16 days until the final count.

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So, and it's true her ballot doesn't make it there,

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But that's not because of the board's doing.

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The board doesn't control the post office.

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The board doesn't control when Ms.

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Ratten sends her ballot.

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Now, I know where you're going.

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But it does control whether there's going to be a delay in the counting.

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And yes, on March 18th, whenever she sent it, she has had an opportunity to vote.

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But because of the board's irregular

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Irregularity, her vote does not count.

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Now, when you're talking about irregularity, you're talking about the lack of postponement, the second one.

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I'm talking about.

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Because you said she had an opportunity to vote on the 15th.

[00:17:32] Speaker 01:
Well, because she's mailed it in.

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Right.

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Nobody stopped her from doing that.

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But then when the board agents said, I've got all the ballots of the people who told me they would send them, thus we can go ahead.

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We don't need an extension.

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knowing that Ms.

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Ratten, and I'm not talking about misconduct, I'm just talking about incompetence, that knowing that Ms.

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Ratten told her I'm sending mine in and knowing that she didn't have it yet.

[00:18:02] Speaker 03:
Right, so Judge Henderson, I'm taking- Let me ask you, you don't think that's an irregularity?

[00:18:09] Speaker 03:
That's why, Your Honor, that's why the board analyzed that as misconduct by the agent.

[00:18:14] Speaker 03:
So clearly it was, but now I'm gonna go back

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but not an irregularity.

[00:18:20] Speaker 03:
No, an irregularity would be the delay, for example, that the board agents had in sending these out.

[00:18:27] Speaker 05:
One of those is the regularity and not, it just, they all start to just come together.

[00:18:32] Speaker 05:
It's really hard to know.

[00:18:33] Speaker 05:
I don't understand why that's not an irregularity.

[00:18:35] Speaker 05:
It seems like it's an irregularity when there's misconduct.

[00:18:38] Speaker 03:
Well, and that's honestly one of the more confusing parts of this case is that it involves

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the same person, Ms.

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Ratan, and the same board agent for those two objections.

[00:18:53] Speaker 05:
But this court has long recognized- And the idea that you'd apply different standards to those two objections just seems odd to me because they're basically talking about the same thing.

[00:19:02] Speaker 05:
And at the end of the day, the question in the case is, can we trust this election?

[00:19:07] Speaker 05:
Should something have happened differently given the way this came about?

[00:19:10] Speaker 05:
And then to have this esoteric inquiry where we

[00:19:14] Speaker 05:
you know, put one objection in one box and put another objection in another box, and then we're supposed to have some way of distinguishing one from the other would have to be a pretty clean way of distinguishing it.

[00:19:25] Speaker 05:
And I'm not sure what that is.

[00:19:27] Speaker 05:
And let me look, for example, at page 39 of your brief.

[00:19:31] Speaker 05:
So this is, I think, part of the effort to explain how we know which box a particular scenario fits into.

[00:19:40] Speaker 05:
And this is at the bottom of the page.

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The numerous cases cited by the company to support its contention are unveiling.

[00:19:45] Speaker 05:
Unlike objection two, and this is where we get to the distinction between objection one and objection two.

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Unlike objection two, none of them analyze objections based on alleged misconduct by a board regional office or agent.

[00:19:57] Speaker 05:
So that's one box is alleged misconduct by a board regional office or agent.

[00:20:02] Speaker 05:
For instance, some of the cases involve regional offices failure to timely send ballots.

[00:20:09] Speaker 05:
If you ask me, does a regional office failure to timely send ballots.

[00:20:14] Speaker 05:
Can note misconduct by a board regional office just seems to me if yeah it does if you if a board regional office fails to timely send a ballot that sounds like.

[00:20:26] Speaker 05:
a large misconduct by a board regional office, but apparently not.

[00:20:29] Speaker 05:
Apparently those are diametrically different, hermetically sealed things and they just seem like they're the same thing to me.

[00:20:35] Speaker 03:
I understand your point, Your Honor.

[00:20:37] Speaker 03:
There's two things about that.

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I'm not sure exactly what

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the board did in those cases and why it applied that standard.

[00:20:46] Speaker 03:
But first, this court has long held in regal cinemas that it will not question the board's application of a particular standard so long as it's reasonably defensible.

[00:21:01] Speaker 03:
That's one.

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Now, we can argue over the meaning of misconduct or irregularity.

[00:21:10] Speaker 03:
What the board found in this place, and I think it's certainly reasonably defensible, is that in one objection, the agent waited several days to send the ballot, but ultimately the ballot got there.

[00:21:27] Speaker 03:
In another case, she gave wrong information to the parties.

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And so that, the board found, is not just an irregularity, whatever you want to call it, it is outright misconduct.

[00:21:42] Speaker 03:
And therefore, it needs to be analyzed under the misconduct standard.

[00:21:47] Speaker 03:
And in that case, now turning, as I was saying earlier to Judge Henderson, so we agree, I hope, or I'm not gonna presume, that under objection one, there was no disenfranchisement because Ms.

[00:22:01] Speaker 03:
Ratten got her ballot and she still had time to send it back.

[00:22:05] Speaker 03:
So we turn to objection two.

[00:22:07] Speaker 03:
Now, it's unquestioned that the board agent gave incorrect information to the parties.

[00:22:16] Speaker 03:
The question now is, did giving that incorrect information raise reasonable doubt as to the unfairness of the election?

[00:22:25] Speaker 03:
So let's look at the fact.

[00:22:27] Speaker 05:
Why aren't we asking in this situation whether there's possible disenfranchisement?

[00:22:35] Speaker 03:
As we've spoken, the board isn't all seeing, Your Honor, right?

[00:22:40] Speaker 03:
Obviously, this is a hindsight is 2020 case.

[00:22:44] Speaker 03:
If the board had known that this ballot was gonna get there one day late, if the board had known that this election was gonna be decided by one vote, everything would be different.

[00:22:57] Speaker 05:
But- This category is, apparently this category is about board misconduct, right?

[00:23:02] Speaker 05:
Right.

[00:23:03] Speaker 05:
So that's stuff that the board knows.

[00:23:05] Speaker 03:
No, the board doesn't know if an election is going to be decided by one vote, your honor.

[00:23:11] Speaker 03:
No, but it knows if it's engaging in misconduct.

[00:23:15] Speaker 03:
Well, in this case, right.

[00:23:16] Speaker 03:
So there is misconduct, but that's not where the analysis ends.

[00:23:20] Speaker 03:
Does that misconduct put in question the fairness of the election?

[00:23:23] Speaker 03:
But it does.

[00:23:24] Speaker 03:
And if I can continue.

[00:23:26] Speaker 05:
No, no, no, you can't, because I want to continue my question.

[00:23:29] Speaker 05:
It seems like it does necessarily call into question the fairness of the election.

[00:23:34] Speaker 05:
If the election result might have been wrong.

[00:23:38] Speaker 03:
So.

[00:23:40] Speaker 03:
Is an election fair because somebody's ballot didn't get counted in one because there was a one in a one due to board misconduct due to board misconduct, right?

[00:23:52] Speaker 03:
Or is it unfair because the actions of the board agent showed that there was some kind of, we're not asking if it's unfair to Ms.

[00:24:06] Speaker 03:
Ratten, we're asking if it looks unfair to the people, the people who have the most at stake here, the employees, does it look like the board acted in a way

[00:24:16] Speaker 03:
was intended to privilege one party or tilt the election in favor of one party.

[00:24:21] Speaker 03:
And to this day, Your Honor, we don't know how Ms.

[00:24:24] Speaker 03:
Ratner would have voted.

[00:24:25] Speaker 03:
Exactly.

[00:24:26] Speaker 03:
Yeah, that's exactly what we don't know.

[00:24:28] Speaker 03:
Exactly.

[00:24:28] Speaker 03:
And the board and the board agent didn't know at that point either.

[00:24:31] Speaker 03:
So they were not trying to tilt the election one way or the other.

[00:24:35] Speaker 03:
They were not trying to steer this election in a particular way.

[00:24:40] Speaker 03:
What, in fact, your honor, this is the thing.

[00:24:43] Speaker 05:
The decision doesn't turn on that.

[00:24:45] Speaker 05:
The decision doesn't turn on an assessment of whether there was a bad faith misconduct or something.

[00:24:51] Speaker 05:
It doesn't turn on that at all.

[00:24:52] Speaker 05:
If that would have been one thing, it would have been more, I think, sustainable if the board's decision turned on an assessment of the degree of misconduct.

[00:25:00] Speaker 05:
It doesn't turn on that.

[00:25:01] Speaker 05:
It assumes misconduct.

[00:25:02] Speaker 05:
So I think the way we take this case is let's assume it was all intentional.

[00:25:06] Speaker 05:
We just assume it was totally bad faith.

[00:25:08] Speaker 05:
And the answer that the board gives is it still doesn't matter because it's still speculative as to whether an extension would have been granted.

[00:25:16] Speaker 03:
That's the upshot, right?

[00:25:17] Speaker 03:
Well, I would add something else to that is that

[00:25:22] Speaker 03:
I don't know under your hypothetical how it would be possible for it to be intentional unless this person had it in for this rat.

[00:25:29] Speaker 03:
But even then, it would only have mattered if this election- Just to be clear, I don't think it was, but I'm just saying that- No, I understand.

[00:25:36] Speaker 05:
The report analyzes it.

[00:25:37] Speaker 05:
It invites the assumption that there was intentional bad faith.

[00:25:42] Speaker 05:
Right.

[00:25:43] Speaker 05:
And it still doesn't matter.

[00:25:44] Speaker 03:
It doesn't matter, Your Honor, not in this case, because the election

[00:25:51] Speaker 03:
Ultimately, there was no, we don't know.

[00:25:54] Speaker 03:
Are you saying we should assume bad faith towards Ms.

[00:25:58] Speaker 03:
Ratten?

[00:25:59] Speaker 05:
I think the board did.

[00:26:00] Speaker 05:
I think the board said.

[00:26:01] Speaker 05:
I disagree.

[00:26:03] Speaker 05:
I'm sorry.

[00:26:04] Speaker 05:
I don't think the board assumed it affirmatively in thinking that there was misconduct, a bad faith misconduct.

[00:26:09] Speaker 05:
I'm saying the board's analysis says that even if there was,

[00:26:14] Speaker 05:
There still wouldn't be relief here because it says we assume misconduct.

[00:26:19] Speaker 05:
We assume misconduct.

[00:26:20] Speaker 05:
What we're going to is whether there's actual prejudice.

[00:26:22] Speaker 05:
The reason there wasn't actual prejudice is that we don't know that an extension would have been granted had it been asked for.

[00:26:27] Speaker 05:
That would be equally true in a case in which there was affirmative bad faith misconduct.

[00:26:31] Speaker 05:
It would still independently rest on the conclusion that regardless of whether there was misconduct,

[00:26:35] Speaker 05:
It's speculative as to whether the extension would have been granted if asked for it, right?

[00:26:40] Speaker 03:
That is one aspect.

[00:26:41] Speaker 03:
But the board makes another finding, Your Honor, before it gets to the prejudice part, which is, did the conduct affect the fairness of the election?

[00:26:52] Speaker 03:
Would somebody looking from the outside think this board agent, by her conduct,

[00:26:59] Speaker 03:
did something that affected the way the mechanics of the election raises suspicion that there was something else going on.

[00:27:10] Speaker 03:
And in this case,

[00:27:12] Speaker 03:
because the board agent at that time didn't know it would be decided by one vote, because we don't know, they didn't know how Ms.

[00:27:21] Speaker 03:
Ratten would have voted, that the conclusion of the board is, no, there can't be a doubt as to the fairness of the election because all of those factors were not there.

[00:27:34] Speaker 03:
And let me point out as well,

[00:27:36] Speaker 03:
The company, neither the company nor they were at the time Ms.

[00:27:41] Speaker 03:
Ratton's ballot was still out there.

[00:27:43] Speaker 03:
There were eight, seven other ballots floating around.

[00:27:48] Speaker 03:
Nobody cared about those ballots.

[00:27:51] Speaker 03:
Nobody was jumping up and down to get an extension for those ballots.

[00:27:55] Speaker 03:
The only reason we are here today, Your Honor, is because Ms.

[00:28:00] Speaker 03:
Ratan's ballot arrived a day late.

[00:28:03] Speaker 03:
And the evidence that it's not unfair, frankly, is in this courtroom.

[00:28:07] Speaker 03:
It's because if the election, I'm sorry, Judge, I understand.

[00:28:12] Speaker 03:
It's because if the election had come out the other way, I would still be here.

[00:28:18] Speaker 03:
But instead of Mr. Baskin, we'd have the union.

[00:28:21] Speaker 03:
So it's not a question of whether the board's conduct affected the misconduct of the board, raised a question as to the board's integrity in the election.

[00:28:40] Speaker 03:
That is not what happened.

[00:28:44] Speaker 03:
I'm sorry, Judge Henderson, I cut you off.

[00:28:46] Speaker 03:
Go ahead.

[00:28:47] Speaker 01:
I just have one last thing, and I think we need to call this to a halt.

[00:28:53] Speaker 01:
So the Hot Rod decision, which is our precedent, that's what we're bound by, says under the board's standard, and that's, of course, interpreting your client's standard.

[00:29:06] Speaker 03:
The GARDA standard, yes.

[00:29:08] Speaker 01:
Under the board's standard, it is only necessary for a challenger to an election to establish that it was possible

[00:29:16] Speaker 01:
for a board irregularity to have caused a different voting result.

[00:29:21] Speaker 01:
Is it your position that if we put in instead misconduct so that it would read, it's only necessary to establish that it was possible for a board misconduct to have caused a different voting result.

[00:29:38] Speaker 03:
Oh, that, I mean, I think that, that would be.

[00:29:41] Speaker 01:
Is that your position?

[00:29:42] Speaker 03:
It can't be.

[00:29:43] Speaker 03:
It's the number, it's irregularity as opposed to misconduct.

[00:29:49] Speaker 03:
Is that what you're saying?

[00:29:50] Speaker 01:
If we just substituted misconduct for irregularity, I mean, that's much worse.

[00:29:55] Speaker 03:
I mean, in that case, the board would have applied a different standard in that case.

[00:30:01] Speaker 03:
And I don't know what the result would have been, but hot rod is,

[00:30:07] Speaker 03:
Just like Objection 1 in this case, an issue of an agent delaying a ballot being sent out, and this court applied the first step of the board's test, GARDA,

[00:30:20] Speaker 03:
It didn't go beyond to Lenco, but that's not necessary.

[00:30:24] Speaker 03:
I mean, but otherwise this court has recognized the Lenco standard, that's in Antelope Valley.

[00:30:28] Speaker 03:
This court has also recognized the Guards Mark Reasonable Doubt standard that's in Durham schools.

[00:30:35] Speaker 05:
So this court knows those standards and how they apply.

[00:30:37] Speaker 05:
My understanding is right then that you think that one standard applies in cases of irregularity, another standard applies in cases of misconduct.

[00:30:45] Speaker 03:
That's, yes.

[00:30:46] Speaker 03:
And I understand we can discuss, there's some semantic difference about what irregularity may mean, whether irregularity, misconduct falls under irregularity or something like that.

[00:30:55] Speaker 05:
Right.

[00:30:55] Speaker 05:
I mean, it just seems to me that if that's really what's going on, if these two standards are different and they have to be different, we're all assuming they're different.

[00:31:01] Speaker 05:
Yes.

[00:31:01] Speaker 05:
Which means by different, I mean that then different results could obtain.

[00:31:04] Speaker 05:
That's the only difference that matters.

[00:31:07] Speaker 05:
Right.

[00:31:07] Speaker 05:
So difference is different in a significant way.

[00:31:10] Speaker 05:
There has to be some sense, there has to be some coherent framework

[00:31:14] Speaker 05:
to understand when one standard applies as opposed to the other one.

[00:31:17] Speaker 05:
And if it turns on whether we define something as an irregularity on one hand or misconduct on the other hand, when the words irregularity and misconduct seem relatively coterminous to me, or at least overlapping.

[00:31:27] Speaker 05:
I agree.

[00:31:28] Speaker 05:
Pretty confusing to determine which standard applies in what situation.

[00:31:32] Speaker 03:
Yes, Your Honor.

[00:31:32] Speaker 03:
But, and this is getting back to Crown Royale.

[00:31:36] Speaker 03:
The question is, did the board's application of the standards in this case, was it reasonably defensible?

[00:31:43] Speaker 03:
Is it reasonably defensible for the board to consider that the agents act of giving false information to the parties was misconduct, outright misconduct, and to consider that the agents

[00:31:59] Speaker 03:
lack of diligence in sending a ballot to Ms.

[00:32:03] Speaker 03:
Ratten was not misconduct, was just negligence.

[00:32:08] Speaker 05:
One last question, which is on the prejudice prong, because I read the prejudice prong to be doing quite a bit of work.

[00:32:14] Speaker 05:
Yes, yes, absolutely.

[00:32:15] Speaker 05:
So on prejudice, the point you make in your brief, and this is at page 35, is that even if the company would have sought an extension, and then even if the union would have agreed to an extension,

[00:32:28] Speaker 05:
the regional director didn't have to grant it and might have denied it.

[00:32:33] Speaker 05:
And it wouldn't have been an abuse of discretion if the regional director had denied it.

[00:32:36] Speaker 05:
And I take the point that the stipulated agreement uses the language of discretion.

[00:32:39] Speaker 05:
Of course it does.

[00:32:40] Speaker 05:
But in a situation like this, suppose that we know that there's one ballot that hasn't quite come in yet.

[00:32:47] Speaker 05:
And then the company says, hey, I want to get an extension because of that.

[00:32:51] Speaker 05:
And this was you have a really good faith union.

[00:32:52] Speaker 05:
And the union says, yeah.

[00:32:54] Speaker 05:
I agree with you.

[00:32:55] Speaker 05:
Let's get an extension.

[00:32:56] Speaker 05:
There's one ballot that's left to come in.

[00:32:58] Speaker 05:
You think it would be okay for the acting regional director to say, no, I'm calling it today.

[00:33:03] Speaker 05:
I know you all agree.

[00:33:05] Speaker 05:
I know there's one more vote that's yet to come in.

[00:33:08] Speaker 05:
And for all we know, that vote could be the deciding one, but now I'm calling it today.

[00:33:12] Speaker 05:
This is done.

[00:33:13] Speaker 05:
We're tallying it today.

[00:33:14] Speaker 05:
That could be okay.

[00:33:16] Speaker 03:
Yes, your honor, but let me explain.

[00:33:18] Speaker 03:
Okay, so it's in the regional director's discretion, right?

[00:33:22] Speaker 03:
The regional director at that point has to balance two important interests.

[00:33:29] Speaker 03:
The first interest is giving all employees

[00:33:33] Speaker 03:
the opportunity to vote, the broadest ability to vote.

[00:33:37] Speaker 03:
The second is giving finality to the election, getting a result.

[00:33:42] Speaker 03:
We're done now, OK?

[00:33:44] Speaker 03:
And here's the dilemma facing the regional director in that case.

[00:33:48] Speaker 03:
We know there's a ballot that's still out there.

[00:33:50] Speaker 03:
By the way, there are seven other ballots still out there, right?

[00:33:53] Speaker 03:
Nobody cares about them.

[00:33:54] Speaker 03:
We know there's a ballot still out there.

[00:33:57] Speaker 03:
It's been, you know, that one's been sent in with the seven other ones.

[00:33:59] Speaker 03:
We don't know that, right?

[00:34:00] Speaker 03:
Right.

[00:34:00] Speaker 03:
Right.

[00:34:01] Speaker 03:
Okay.

[00:34:02] Speaker 03:
We know based on what Ms.

[00:34:03] Speaker 03:
Rand said that it was sent in the 16th.

[00:34:06] Speaker 03:
She sent it in the 18th, but she told the agent the 16th.

[00:34:09] Speaker 03:
Okay.

[00:34:09] Speaker 03:
That is now 15 days roughly that this ballot has been in the mail.

[00:34:18] Speaker 03:
So is it worth extending the election for

[00:34:24] Speaker 03:
Obviously, we don't know it's going to come in the next day, right?

[00:34:27] Speaker 03:
Is it worth it?

[00:34:28] Speaker 03:
Am I, as regional director, am I abusing my discretion by saying, you know what?

[00:34:37] Speaker 03:
I don't know how this election is going to turn out.

[00:34:40] Speaker 03:
I don't want employees to have to wait forever.

[00:34:43] Speaker 03:
If it doesn't get in in three days, then are we going to have another extension, another extension after that?

[00:34:48] Speaker 05:
You have the union that's representing the employees saying that they're okay with it by hypothesis.

[00:34:52] Speaker 05:
So you're already taking into account the employee's interest because the union is saying, I'm fine with this.

[00:34:57] Speaker 05:
Let's wait a week.

[00:34:58] Speaker 05:
Is that okay with you company?

[00:34:59] Speaker 05:
The company says, yeah, let's wait a week and then we'll call it a day.

[00:35:02] Speaker 05:
And they both come in and say, we agree.

[00:35:04] Speaker 05:
We think we should wait a week.

[00:35:05] Speaker 05:
Let's give a week.

[00:35:06] Speaker 05:
And in fact, even during that week, maybe the person can just come in and hand deliver a provisional ballot.

[00:35:11] Speaker 05:
And then we don't have to wait for the mail.

[00:35:13] Speaker 05:
And then the regional director could still say no.

[00:35:15] Speaker 03:
I think if the union said,

[00:35:20] Speaker 03:
If the union said, you know, we, we agree, I think it's entirely, I think in my case as regional director, I would say, okay, how long do you want?

[00:35:30] Speaker 03:
Three days?

[00:35:30] Speaker 03:
Okay.

[00:35:31] Speaker 03:
But, but again, if,

[00:35:36] Speaker 03:
I think it is not an abuse of discretion for the regional director to say, listen, I want to bring this thing to a close.

[00:35:45] Speaker 03:
I think at this point, employees, including Ms.

[00:35:48] Speaker 03:
Ratten, whose ballot was mailed 15 days ago, have had enough of a chance to have their voices heard.

[00:35:55] Speaker 03:
I want to finish this.

[00:35:58] Speaker 03:
Okay.

[00:35:58] Speaker 03:
All right.

[00:35:59] Speaker 03:
Thank you, council.

[00:35:59] Speaker 03:
Thank you.

[00:36:00] Speaker 03:
I appreciate your time and the board will press that the board enforce it.

[00:36:05] Speaker 03:
Thank you.

[00:36:08] Speaker 04:
Mr. Baskin will give you the two minutes you have to work for rebuttal.

[00:36:12] Speaker 02:
I'll be brief.

[00:36:13] Speaker 02:
What we've heard today is a total lack of a coherent standard and nothing that was said today by council actually appears in the board's decision.

[00:36:24] Speaker 02:
They were presented with the possibility of disenfranchisement standard cited to them and no mention of it.

[00:36:32] Speaker 02:
No mention that we're only treating it for one objection, not the other objection.

[00:36:35] Speaker 02:
We presented all five objections and the dissent understood that they should be considered collectively.

[00:36:42] Speaker 02:
just did not analyze it according to the way we've heard today or in the brief.

[00:36:48] Speaker 02:
And it's all post hoc rationalizations for something that is just incoherent and cannot be approved by this court.

[00:36:56] Speaker 02:
As opposed to National Hot Rod, that decision is coherent and clear and most importantly has already been issued by a panel of this court, which other panels would follow.

[00:37:09] Speaker 02:
So we ask that you do the same and deny enforcement.

[00:37:12] Speaker 02:
Thank you.

[00:37:13] Speaker 05:
Thank you, council.

[00:37:14] Speaker 05:
Thank you to both council will take this case under submission.