[00:00:00] Speaker 01: Case number 23-1281 et al. [00:00:02] Speaker 01: VTCU Court Petitioner vs. National Legislative Relations Board. [00:00:08] Speaker 01: Mr. Goldberg for the petitioner, Ms. [00:00:10] Speaker 01: Cheaton for the respondent. [00:00:13] Speaker 04: Good morning. [00:00:13] Speaker 04: Good morning. [00:00:14] Speaker 04: May it please the court, my name is Andy Goldberg. [00:00:16] Speaker 04: I'm the lawyer for the appellant VTCU. [00:00:20] Speaker 04: I've asked for two minutes for rebuttal at the end, if I may do so. [00:00:24] Speaker 04: We are here this morning to ask the court to reverse the National Labor Relations Board finding of an unlawful refusal of the bargain and the attendance certification of a bargaining agent in order of rerun election or at least a hearing on the merits of the objections. [00:00:38] Speaker 04: The board erroneously dismissed challenges to a representation election without a hearing and improperly certified the union as a lawful bargaining representative. [00:00:46] Speaker 04: So we are asking for either rerun election or short of that, a hearing on the objections. [00:00:50] Speaker 04: We're here before you to argue these following main points. [00:00:55] Speaker 04: One, that the three-week election period and the attendant problems that arose from that were too short, that void ballots should not have been counted, and that the threats which were made by union representatives to eligible voters also tainted the election such that it should be overturned. [00:01:11] Speaker 01: So as to those first two points, didn't VTCU agree to a three-week election period and then also agree to count those ballots? [00:01:20] Speaker 04: So the problem with the argument about the agreement as the board has put forth is that it fails to recognize the process for entering into a stipulated agreement. [00:01:28] Speaker 04: That is not a separate and distinct agreement where the parties go aside into a room, come up on their own. [00:01:33] Speaker 04: That is a board managed process. [00:01:35] Speaker 04: And at the end of the day, when the parties submit that stipulation, the regional director has the authority to approve or reject that stipulation and find that the parties [00:01:46] Speaker 04: recommended process is not proper. [00:01:48] Speaker 04: And in fact, this region has given four-week elections in cases with voters who are far fewer in numbers than we have here. [00:01:55] Speaker 04: And the region is responsible, and the board is responsible for ensuring there's an adequate... It's like a very difficult standard, though. [00:02:00] Speaker 01: I mean, if the parties agree to a three-week period, and they're not really... There are instances of a four-week election. [00:02:06] Speaker 01: There are also instances of shorter elections. [00:02:12] Speaker 01: I mean, you know, the agreement seems to carry some weight [00:02:16] Speaker 01: you know, for us to say that the regional director committed some error when the parties agreed to a three-week period. [00:02:22] Speaker 04: But the regional director is ultimately responsible, and so the parties who are not charged with knowledge of the mail issues, with the processes of whether or not that count is going to make it in time, that's all the responsibility of the regional director. [00:02:38] Speaker 04: And that regional director should have known of the issues in the Pocatello area with the mail. [00:02:43] Speaker 04: And matter of fact, now, when you look at the federal elections, those mail ballot elections are being mailed 45 days in advance, another, obviously, federal process. [00:02:52] Speaker 04: And so the regional director should have known, and the regional director should have said, this isn't sufficient amount of time, and we're not going to grant that. [00:03:01] Speaker 01: And the regional director should have done that, notwithstanding the party's agreement. [00:03:06] Speaker 04: Yes, because that is the process that the regional director has to approve the step. [00:03:09] Speaker 00: What's the point of having a typical arrangement? [00:03:12] Speaker 00: It really does matter. [00:03:13] Speaker 00: And most of these go on all the time. [00:03:16] Speaker 00: And typically when the parties agree, there's nothing facially unlawful about three weeks as opposed to four. [00:03:22] Speaker 00: And it would be quite unusual if the regional directors wouldn't have enough time in the year to do what you're asking. [00:03:29] Speaker 00: The party's agreed, it's facially lawful, the regional director accepts it. [00:03:34] Speaker 00: That's not unusual and it's certainly not unlawful. [00:03:37] Speaker 04: I'm not suggesting that it's unlawful. [00:03:39] Speaker 04: I'm suggesting that in this particular case, there was evidence that the regional director should have had and was available to the regional director [00:03:46] Speaker 04: that the regional director should have known there should have been a longer period of time. [00:03:49] Speaker 04: And we have the people, the evidence that we submitted an offer of proof of those who didn't get ballots. [00:03:54] Speaker 04: We have the number of people who were eligible to vote versus the number of people who actually voted. [00:03:59] Speaker 04: So there is not just speculation here. [00:04:01] Speaker 00: There is actual evidence that there was some issue with the time period allotted, including the one- You're using what happened after the fact of the agreement to prove that [00:04:13] Speaker 00: The agreement should not have been accepted. [00:04:15] Speaker 00: In other words, the regional director should have known that you might assert some problems later on. [00:04:21] Speaker 00: This is a facially normal agreement, facially acceptable. [00:04:26] Speaker 00: There was nothing that would cause a regional director, nothing that's on this record, to think that there might be issues. [00:04:34] Speaker 00: And so the party's agreement was accepted. [00:04:36] Speaker 00: That's what's typically done. [00:04:38] Speaker 04: But what I'm suggesting here is that there was evidence that there were issues with the mail itself and that those issues, not the after the fact of the approval, but even before that there were issues with the mailings in Pocatello and the regional director was responsible for knowing that. [00:04:54] Speaker 04: The after the fact evidence establishes that that period wasn't appropriate and just supports the argument that the regional director should not have approved it in the first place. [00:05:08] Speaker 04: So in addition to that, the [00:05:13] Speaker 04: Board has suggested that we're not entitled to argue that if we don't get a rerun election, we should also have a hearing because we didn't raise it in the objections and the request for review, which is not entirely accurate. [00:05:26] Speaker 04: We didn't specifically state that for sure, but we did generally say we'd like the decision overturned. [00:05:31] Speaker 04: And a hearing is a remedy. [00:05:33] Speaker 04: And the remedy when you overturn the decision is one of two things. [00:05:36] Speaker 04: It is either you get a hearing or you get a rerun election. [00:05:40] Speaker 04: And in this case, the board is asking [00:05:43] Speaker 04: to have the court just accept that its conclusions of law here are valid and appropriate and asking the court to completely defer to their standard, which is really an interpretation of the law and not just a finding of fact, because there were no findings of fact here. [00:05:57] Speaker 00: Don't you understand what you just said and we're hearing you say, it's true, we didn't specifically raise it, but the board sort of surmised that's what we would have liked if they had thought about it carefully. [00:06:09] Speaker 00: You have to raise an objection and indicate what it is you're precisely objecting to and what it is you didn't ask for a hearing. [00:06:17] Speaker 00: You forfeited. [00:06:18] Speaker 04: Well, but a hearing is not an objection. [00:06:19] Speaker 04: A hearing is a remedy. [00:06:21] Speaker 00: And so we shouldn't have to raise your request for whatever relief you think you're entitled to. [00:06:26] Speaker 00: You didn't raise it. [00:06:27] Speaker 00: It was forfeited because the board is there and they can't respond to that request. [00:06:32] Speaker 00: If you don't raise it, you didn't raise it. [00:06:34] Speaker 00: And now you're saying to us, well, they should have understood that's what we really would have liked to have when it's not routinely done. [00:06:43] Speaker 04: Well, if there is a remedy, if there is. [00:06:45] Speaker 00: It's not counseled, the board followed procedures that they follow all the time, every day. [00:06:50] Speaker 00: They didn't do anything here that was untoward. [00:06:52] Speaker 00: It just, it's the way they operate. [00:06:55] Speaker 00: And so if you didn't specifically say to them, no, no, in this case, you should not follow the norm, you should give us a hearing. [00:07:01] Speaker 00: You didn't raise, you didn't put them on notice that that was an issue. [00:07:05] Speaker 04: Well, I think they were on notice because we asked for the objections, the denial of the objections to be overturned. [00:07:11] Speaker 04: And so that puts it then in their hands to give us a remedy, which includes a hearing or rerun election. [00:07:18] Speaker 02: Well, it seems that a lot of your objections are either waived, as indicated by Judge Edwards, or there's a jurisdictional bar because they were not exhausted by being specifically acknowledged and you appeal to that relief to the board even before you come through this process. [00:07:36] Speaker 04: Well, the only argument on that particular one is the hearing as opposed to the rerun election, because we did specifically request a rerun election in our filings, all throughout our filings. [00:07:48] Speaker 02: But I guess what I'm saying is you have a lot of objections. [00:07:51] Speaker 02: Some of them were either not raised at all to the board, or they were not raised to the court. [00:07:58] Speaker 04: And the reason for that is because [00:08:01] Speaker 04: As time goes by and you learn what you're then truly going to be able to establish, you're going to focus on those objections where you can in good faith bring forth facts and some of the evidence that has come up later. [00:08:11] Speaker 04: We have chosen to rely on those objections where we have a good faith belief that we can present evidence in support of this. [00:08:22] Speaker 01: Mr. Goldberg, I was wondering, the regional director used a standard for reviewing the alleged election misconduct. [00:08:33] Speaker 01: They used the reasonable doubt standard. [00:08:35] Speaker 01: And in your brief, you talk about a different standard that we use in a different line of cases about disenfranchisement. [00:08:43] Speaker 01: And I'm wondering if you think the choice of a test makes a difference in this case. [00:08:47] Speaker 04: We do because there are voters here who were disenfranchised. [00:08:52] Speaker 04: And we believe that those are the standards that should be used because people did not receive a ballot. [00:08:57] Speaker 04: Other people didn't cast a vote. [00:08:59] Speaker 04: One person's vote came in late. [00:09:01] Speaker 04: And so when you're looking at disenfranchisement of the voters, that is really what we are arguing here with respect to the three week time period and those individuals who didn't get a ballot and the one whose ballot came in late. [00:09:15] Speaker 01: But is that disenfranchisement standard different than asking whether there's reasonable doubt about the fairness of an election? [00:09:24] Speaker 04: So there's lots of different ways standards of review have been phrased in the various cases that come before with substantial evidence, with deference, and what have you. [00:09:35] Speaker 04: At the end of the day, the question is, [00:09:37] Speaker 04: Was this a properly conducted election such that the voters had a reasonable opportunity to vote in a time period that was effective for that election? [00:09:46] Speaker 04: And our position is the time period was not. [00:09:49] Speaker 01: And even if we thought that it wasn't reasonable, are you able to show prejudice here? [00:09:56] Speaker 01: Prejudice in terms of the voters right in terms of the outcome being different. [00:10:01] Speaker 04: Well, I think yes, because we have the 15 now as it comes clear, the 15 voters who in fact did not receive a ballot, the one that that came late and plus again, those void 5 void ballots plus the threats against the 300 individuals. [00:10:16] Speaker 04: Plus the cases have said that when there's evidence of impropriety or in this case the election period not being sufficient and voters impacted, you can make the conclusion that others were impacted as well. [00:10:30] Speaker 04: And so that's again part of our argument based on the number of people who voted and those who did not. [00:10:35] Speaker 02: But if I look at that, I'm not sure that I come to you with the same math on this being outcome determinative because the vote tally was 66 in favor of the union. [00:10:45] Speaker 02: 45 in favor of the employee add back your five Challenge ballots get you to 50 add back those 15 others that still gets you to 25 yeah, and so you still lose by one and then the one late ballot and then the three people who were the two people who were threatened So you have to win on all of those counts to demonstrate prejudice and [00:11:16] Speaker 02: but what wasn't the the one that you're referring to untimely though the late ballot yes and we're saying because of the three-week election period okay but then going back to judge Ralph's question you have to win on that first to get to that other one yes sir thank you we'll give you a few minutes on the bottle thank you [00:11:54] Speaker 03: Police of Court, Barbara Sheehy for the National Labor Relations Board. [00:11:59] Speaker 03: I'm going to start where opposing counsel finished, sort of Judge Rao's question about the standard of review, the standard that was used here. [00:12:06] Speaker 03: And your honor is absolutely correct, the board used the reasonable doubt standard. [00:12:11] Speaker 03: But I want to clarify a couple things I think that are sort of surrounding that issue in the case. [00:12:16] Speaker 03: It's never been raised that that was the wrong standard, so I sort of want to start there. [00:12:21] Speaker 03: There's been no challenge that the board used the wrong one. [00:12:24] Speaker 03: There are other tests out there, as opposing counsels correctly articulated to the court. [00:12:31] Speaker 02: Could you at least give them credit that if they believed that the other standard was applicable, that by inference they believed your standard was incorrect? [00:12:41] Speaker 03: So here's the problem with that. [00:12:43] Speaker 03: So I think if they had clearly said that or it was reasonably discernible from their request for review because that's their opportunity to tell the region. [00:12:52] Speaker 03: That's the opportunity to tell the board. [00:12:54] Speaker 03: hey, we think the region got this wrong. [00:12:55] Speaker 03: So the region very clearly articulated the reasonable doubt test. [00:12:58] Speaker 03: Very clearly, it's in the applicable standard or applicable legal principles. [00:13:04] Speaker 03: So there's no question what the region did. [00:13:07] Speaker 03: Then you look at what did the employer file in its request for review. [00:13:11] Speaker 03: And so what you're asking there is you're trying to tell the board, we think you need to review and dig deeper into this case because here's what the region did wrong. [00:13:20] Speaker 03: And in that request for review, [00:13:22] Speaker 03: The only thing they say is the employer cites to National Hot Rod, which is a case out of this court. [00:13:30] Speaker 03: And then it cites to three other cases cited in National Hot Rod. [00:13:35] Speaker 03: But they don't say, here's. [00:13:38] Speaker 03: They never say you applied the wrong standard. [00:13:41] Speaker 03: They articulate a standard that's in National Hot Rod, and then, like I said, they cite to three other cases. [00:13:46] Speaker 03: Here's the problem with that, though. [00:13:47] Speaker 03: The three other cases and National Hot Rod itself actually don't get into what is the appropriate standard. [00:13:54] Speaker 03: Is it reasonable doubt? [00:13:56] Speaker 03: Is it the possibility of disenfranchisement? [00:14:00] Speaker 03: What the issues were in those cases was, was the misconduct by the board? [00:14:05] Speaker 03: Was the misconduct by the employer? [00:14:07] Speaker 03: Or was the misconduct a responsibility of the parties? [00:14:11] Speaker 03: Those were what were litigated in those cases. [00:14:13] Speaker 03: So National Hot Rod had to do with [00:14:15] Speaker 03: Who was at fault for not, for this one employee and a one vote determinant of election, who was responsible, more responsible I guess, for this employee not being able to vote? [00:14:24] Speaker 03: The board said we think it was the employee. [00:14:27] Speaker 03: This court disagreed and said, no, we think it was the board. [00:14:30] Speaker 03: In the other two cases, one of them visiting nurses had to do with an employee who showed up late. [00:14:35] Speaker 03: And these are the only cases cited in their request for review. [00:14:38] Speaker 03: So without telling the board what we think you did wrong, the board is reasonably looking at, OK, you say we're inconsistent with our precedent. [00:14:44] Speaker 03: Let's look at what it was. [00:14:45] Speaker 03: Visiting nurses had to do with an employee who showed up 15 minutes before the ballot before the vote was to close. [00:14:52] Speaker 03: So it's a manual ballot shows up 15 minutes late as on arrival. [00:14:56] Speaker 03: She gets a text or email or something from her supervisor. [00:14:59] Speaker 03: She goes to talk to her supervisor. [00:15:01] Speaker 03: She sort of gets way late again before she actually makes it to the ballot to the voting and she shows up late. [00:15:07] Speaker 03: The board said we don't think that was so there was an allegation there an objection who was at fault there for her not getting there was at the employer interfering with her in her last 15 minutes to get there or was she more at fault because. [00:15:20] Speaker 03: She had plenty of time, according to the board they found there, she had plenty of time after she spoke to her supervisor and still getting to the ballot. [00:15:28] Speaker 03: She could have voted. [00:15:30] Speaker 03: So the question in that case was, who's at fault? [00:15:33] Speaker 03: And then in, I can't remember. [00:15:35] Speaker 03: So Ms. [00:15:36] Speaker 03: Sheehy, what's the connection here? [00:15:38] Speaker 03: So the connection is, so this I'll just say, [00:15:40] Speaker 03: The employer doesn't tell the board that it applied the wrong standard. [00:15:46] Speaker 03: So we are dealing then with the reasonable doubt standard. [00:15:49] Speaker 03: I would acknowledge that if it had been clearly raised and they had clearly articulated, this standard is wrong, here's what you should have done. [00:15:57] Speaker 03: Then yes, the prejudice showing is different in that case. [00:16:01] Speaker 03: I won't speak to whether the board would have come out in a different way. [00:16:03] Speaker 01: Partly because I think fundamentally- Isn't the board's view that these tests are different? [00:16:09] Speaker 01: That they would lead to a meaningfully different result? [00:16:12] Speaker 01: Or that they should apply in different contexts? [00:16:15] Speaker 01: I mean, we do seem to have these two lines of cases with different standards. [00:16:19] Speaker 03: Sure, and the court has recently addressed this. [00:16:21] Speaker 03: I'm sure the court is aware in GHG. [00:16:23] Speaker 03: This is actually discussed. [00:16:24] Speaker 03: It was a remanded case just two months ago. [00:16:26] Speaker 03: And I think that's up, I'm not going to speak for the board because we'll hear from them on remand as to whether what exactly is the difference between, what's going to be the dispositive issue on when we apply which tests. [00:16:41] Speaker 03: So I can't answer whether the board sees a meaningful distinction on what sort of conduct triggers which test or what that distinction will be. [00:16:50] Speaker 03: I can certainly acknowledge that the prejudice showing is different. [00:16:54] Speaker 03: One is possibility of disenfranchisement and one is actual showing of disenfranchisement. [00:16:59] Speaker 03: So beyond that, I'm not comfortable sort of trying [00:17:02] Speaker 03: Speak for the board, because like I said, we should hear from them on remand. [00:17:05] Speaker 03: So absolutely, there are different tests. [00:17:07] Speaker 03: We're not saying otherwise. [00:17:08] Speaker 03: What we're saying is, if you know there are different tests, and we all do, because there's lots of different cases out there applying several different tests, if you didn't think the board did the right one in this case, tell them. [00:17:20] Speaker 03: Don't rely on cases that have nothing to do with yours. [00:17:24] Speaker 03: Don't rely on cases that have nothing to do with the issue here. [00:17:26] Speaker 03: This didn't have to do with who was at fault in any particular way. [00:17:31] Speaker 01: I had another question with respect to counting the ballots, the printed ballots. [00:17:39] Speaker 01: Looking at the board's, I guess, like the case handling manual provision, [00:17:48] Speaker 01: Did the board or did the regional director need to find either that the parties agreed that these were signatures or would the regional director have to find that they were the actual signatures? [00:18:01] Speaker 01: Because arguably it's not clear that the regional director did either of those things. [00:18:08] Speaker 03: So I think first what the, if we look at what the board did first with this is the board first finds that the six ballots where there's a [00:18:17] Speaker 03: where the name is either printed signature or printed, were not outcome determinative. [00:18:21] Speaker 03: So that's sort of the first wave of defense, I think, by the board on those. [00:18:25] Speaker 03: But getting to your question about what they found. [00:18:27] Speaker 03: So here, what they did, I think what the regional director did here in this case was that the parties, the ballots were flagged. [00:18:35] Speaker 03: They were among a number of ballots, actually, that got flagged as print. [00:18:39] Speaker 03: And then I think some, I think there were 19 total, actually, that had print. [00:18:43] Speaker 03: And then they sent out a bunch. [00:18:44] Speaker 03: They sent the recent. [00:18:45] Speaker 03: At the time of the count, there was still six. [00:18:47] Speaker 03: So they were set aside. [00:18:49] Speaker 03: The parties are all in the room at the ballot count. [00:18:51] Speaker 03: These but these ballots then come up and the parties agree that there is no question about the identity of the voter. [00:18:59] Speaker 03: So that's the whole reason for this provision is the security of the vote. [00:19:03] Speaker 03: There's no question that these [00:19:04] Speaker 03: There was no, there was no, the identity of the voters, there was no question that there was actually evidence of different signature by these people, which is a case for instance in Longmont in this court, there was some question there. [00:19:16] Speaker 03: So I think what was found here was that looking at the ballots, the parties agreed that there was no issue with the print signature. [00:19:26] Speaker 03: So I'm not sure if that answers your question, but I don't know that the regional director [00:19:30] Speaker 03: has to make the finding first, because the regional director doesn't get involved, is my understanding of the case. [00:19:36] Speaker 00: You're saying it wasn't a disputed issue. [00:19:38] Speaker 03: It wasn't, right, the parties agree, right. [00:19:41] Speaker 03: And so again, that goes to, I think, the whole, at the beginning of opposing counsel's argument, we had the issue about the consent to the stipulated election agreement. [00:19:50] Speaker 03: This is another instance where the employer is trying to back out of agreements it made because it doesn't like, at the end of the day, it didn't like the results of the election. [00:19:59] Speaker 03: It entered into a stipulated election agreement, setting for the three weeks. [00:20:02] Speaker 03: They had every opportunity to raise, apparently, these well-known mail issues. [00:20:07] Speaker 03: Never raised them. [00:20:09] Speaker 03: And then they agreed to count the six ballots. [00:20:14] Speaker 03: So I think unless, I don't have anything else I wanted to, oh sorry. [00:20:18] Speaker 02: Just 3D, if you'll go do the math. [00:20:20] Speaker 02: So what? [00:20:21] Speaker 02: In terms of whether it could have been outcome determinative or not. [00:20:24] Speaker 03: So which ones are we, which ones do you want? [00:20:26] Speaker 02: Well, my math was indicating that even with the five challenge ballots, if you add it back in, because you were at 66.45, that gets you to the 50. [00:20:35] Speaker 02: And then there were 15 other ballots that you could count, so you would still be one short. [00:20:41] Speaker 03: Right so and then I guess I didn't understand I guess until coming in I guess today just now that the one late ballot was also part of this so I I I don't I don't read their brief to say that so my position would be that it still is not outcome determinative they still haven't done it. [00:21:00] Speaker 03: And I'll be quite honest, I think the math is pretty messy in a lot of parts of their brief, so I get quite confused on what's being argued and what numbers are being used, but I do think it's the board's position. [00:21:09] Speaker 03: Right, it's 66 to 45. [00:21:13] Speaker 03: Five challenge ballots, 15, and I would point out in the offer of proof, it's not, the offer of proof related to the ballots that the employees would have testified, [00:21:25] Speaker 03: didn't receive a ballot. [00:21:27] Speaker 03: The offer proof actually says more than just that. [00:21:28] Speaker 03: The offer proof says they didn't receive a ballot or they received it late. [00:21:33] Speaker 03: We don't even know what the allegation is of those 15. [00:21:35] Speaker 03: Was it one who received it never, or never received it rather, and 14 who received it late? [00:21:40] Speaker 03: Because that's a different question. [00:21:42] Speaker 00: So I think fundamentally- You're talking about the people, but they never requested a dupe. [00:21:47] Speaker 03: No, I'm talking about the very first objection, 3B. [00:21:50] Speaker 03: I think it's 3B. [00:21:52] Speaker 03: I'm sorry, I said 3D. [00:21:52] Speaker 03: Where 3B, where it speaks to, they say 17, it's actually 15 because somebody's double counted and somebody actually did vote. [00:21:59] Speaker 03: But if you read the objection itself before you actually get to the numbers of the people, it says never received a ballot in parentheses or received it late. [00:22:08] Speaker 03: So we don't even understand what that objection is getting to. [00:22:12] Speaker 03: So fundamentally, this is the last thing I'll say because I see them over time. [00:22:15] Speaker 03: Fundamentally, I think the board views this as a failure of proof case and we would ask for full enforcement. [00:22:22] Speaker 01: Mr. Goldberg will give you two minutes. [00:22:32] Speaker 04: So a couple of points that I'd like to talk about. [00:22:35] Speaker 04: One is the well-known mail issue. [00:22:38] Speaker 04: So again, the employer was not aware of those mailing issues until after the issues came up in the election itself. [00:22:44] Speaker 04: So the board has said it's our responsibility to do essentially an analysis so that we knew about it. [00:22:50] Speaker 04: When we had referenced in our briefs that it was a well-known issue, we meant it was well-known, should have been to the board, not the employer's responsibility to do that investigation because it's the board's obligation to do so. [00:23:01] Speaker 04: The board has also said that they looked at those void ballots, figured it was not outcome-determinative, and sort of made their conclusions. [00:23:10] Speaker 04: We're looking at this as a whole. [00:23:11] Speaker 04: You need to look at the entire context and figure out all of the numbers of the people that were involved here and not being able to get into it. [00:23:19] Speaker 04: As to the standard, we have very clearly in our request for review talked about voter disenfranchisement. [00:23:25] Speaker 04: And that was the number one and first argument that we made in terms of the people not being able to vote, and that was the standard that we had argued and talked about. [00:23:33] Speaker 01: But again, at the end of the day... It is the standard you argued, but you didn't, it seems to me, say that the regional director applied the wrong standard. [00:23:44] Speaker 04: No, we did not specifically state that. [00:23:46] Speaker 04: We stated the standard that we applied. [00:23:48] Speaker 01: In an adversarial system, [00:23:51] Speaker 01: It's on the attorneys to make the arguments they want the board to put forward issues and arguments for the board to address. [00:23:58] Speaker 04: And we set forth the standard that we believe the board should be following by affirmatively asserting that it was a voter disenfranchisement case. [00:24:09] Speaker 04: The last thing that I would like to... I think actually I covered... I did cover all the issues I wanted to talk about. [00:24:18] Speaker 04: Thank you. [00:24:19] Speaker 01: Thank you, Mr. Goldberg. [00:24:20] Speaker 01: The case is submitted.