i'll quote relentless for slashing time from every state of the current pre election and those aren't my words those are the words of the board members who opposed strongly opposed passage of the current at all costs get the election done quickly as possible without regard for whether rushing through the process is denying the employee a fair shake that is the imperative that drove every decision by the acting th we believe he was a statutory supervisor and that he was basically with leading the union organizing campaign on behalf of the employer and we suggested that as part of the pre at position statement under the board's hearing those who do want to thursday ok the first time that we could meet with our client was wednesday so now even though the rule gives a seven days we have one we asked for a two business day extension that would leave was basically from the time we got on the ground on wednesday and bear in mind we were also trying to develop evidence to support our parking ticket so friday at noon to speak now or forever hold our peace and you know the weekend didn't do us any good because once that position statement came into the region on friday at noon we could develop anything new over the weekend sure we could prepare to litigate what we were able to muster by friday at noon but we weren't able to develop anything and you know abuses of discretion committed by the regional director we've only been talking about a single one there are too many others to discuss in the time we have left but you know he didn't give us the appropriate time we thought we think to prepare this evidence in the  s we went into a hearing that it was beyond clear that the region would tend to be completed in a single day despite the fact that we asked for numerous times was on and off the record for continuances to try to develop i'm glad that you referenced the vote because there's a point i'd like to make the board says there's no prejudice here because hey you got blown out i would suggest that the employers tend to lose elections oh i'm sorry i misunderstood what i'm saying is that we're not saying that a male ballot is an inappropriate means generally we're saying that in the titular case the acting director was simply wrong on the law in deciding that the voting unit he was a scattered unit under the there's no record evidence that it was going to be icy on the day of the election but that his key mistake he misinterpreted our proposal which would have had employees all vote before leaving on their shifts they all have to come to the terminal pick their trucks up so they all can be in the same place at the same time that's not in dispute and we offered to arrange the dispatch so that they could all vote before they left his decision says they're scattered because they could get stuck on the road and they won't return in can say is that in the federal register when the board majority who passes final rule passed when they were addressing concerns by the employer community about and it seventy nine federal register seven four three two when they were addressing that this particular unit the only effective way to communicate with this particular group is to make them all come before they got in the trucks and left because once they got in the trucks and went on their delivery there's no way to talk to any group and so the  best way in this particular company to communicate with this group which you did prior to this ruling coming down was to get them all before they got in the trucks and left make them be there which we legally entitled to do and you know communicate you know whatever the campaign message may have been that pertain that's the part that was cut off from us and i would just say i know i'm we're way over my time so i just say before i sit down that you know the ozarka case i think makes when it comes to a question of whether all this prejudice is an employer i know that's what the what the court is getting at it's not whether the outcome would have been different it's whether it could have been different and it is indeed that when you put together all of these errors the mail ballot error the supervisor error failing to investigate the taint question failing to give us the time we believe we are entitled to in  honor i think in fact this this hearing was very ordinary and based on the general course of these type of pre election hearings one point on that that i'd like to make is there is a lot of discussion  pre election hearings for decades it's not unusual it was not an expedited sling eleven total days because the the regional director granted in part the one business  the minimum notice was five calendar days so eleven count those days is well within the norm there was no prejudice here the employer has never argued that it was prejudiced by not having witnesses available i point the court to the emotion that was presented to the result director for a two business day extension which is all that the employer requested and the only reason they provided there was that one of the counsel for the employer was not available to meet in person with the employer's officials until the following day and in light of that fact the regional director granted the one visit the extension which was in fact three calendar days tension over the objection of the union and there was no other reasoning provided to the result of actors such as witnesses not being available for evidence that could not be collected or any similar prejudice a similar point that was discussed of the statement of position and just to be clear if the if the court looks at the board exhibit three which includes an example of a state in the position this case was called the statement position is essentially a one page form that parties are required to employers are required to file before the pre election hearing most of that form and includes routine questions such as whether the employer admits that it the board has serious taken over and based on its commerce standards and employers are also disposed to identify issues that they're going to raise that does not require them to litigated if special circumstances are so and there's also in terms of voter eligibility that is never waived so the purpose of the form is essentially just to make clear before the hearing begins it's typically the day before in this case that was three days before what the employer wants to raise at the hearing well your honor the union is not really raising issues because by filing the election petition in the first place this is clear their position which required because the employer is not agreeing to a stipulated election agreement and generally it's because the employer is challenging either the appropriate appropriateness of the unit or the eligibility of a substantial number of voters and for most of these issues the employer is agency itself to decide whether it's worth exerting resources to continue to if you ring once once to the board of supervisors election occurs as it didn't just hate the feeling of interest that essentially irrelevant because the employees have now spoken through  of terminations that's not before the court it's irrelevant to the question that the court needs to decide in this case because the election ultimately did occur here and it's very clear that a sufficient number of employees in fact nearly all of the employees want union so the issue that is still arguably at issue is whether there was conduct that would have tainted the shelling venturous that also could be alleged to have tainted the election and there was some questioning i believe from he's a supervisor he theoretically could have solicit authorization card there's no evidence that he spoke to a single member of this unit or a single eligible voter and expressed his opinions about unionization one way or the other or certainly solicited authorization cards which is the type of conduct that could potentially he objects involve the employer has not had over three years to muster evidence that is to a way as that it would have presented if there was a post election objections well your honor i don't recall seeing that in the briefs in this case that's a new argument the board's position would be that it's improperly raised at this point but again i just return to the argument that at no point have the employer ever identified a particular witness by name who was unavailable for some reason and could not be available on this day as opposed to the next day the hearing was on a monday the employer had requested that it be delayed to a tuesday so the only issue here is whether this one extra honor i think that argument is based on unmet misrepresentation first of the facts of this case and a board law first of all just factually the employer had over a month in this case from when the petition was filed to when the mail bell election victory and and during that entire month they could have helped close mass captive audience meetings or any other type of campaigning that they wanted to but just as a legal matter to clarify to the court there was a period before the start of any election whether a mail ballot or manual election which is now twenty four hours or neither party both the employer and the union cannot hold mascots of up captive audience meetings they can continue to campaign otherwise what happened in this case was that the mail ballots began on january eleven and because of the nature of mail ballots lasted several weeks however if the regional director had ordered a manual election instead as the employer insisted the manual election would have been scheduled to begin around the same time as the mail ballot election began in this case and thus the cutoff for mask half of audience meetings would have been a same the same essentially the board's rules require result directors to schedule the election or as soon as possible after the decision of direction of election there is one tab where the union has a right to ten days with the excelsior list to campaign unless the union wage that in this case the union expressly waived the ten day period at the pre election hearing and so if this had gone to a manual election the result director would have scheduled that manual election for it within a few days of when the mail ballots began and so the notion that the yes and that's the point i'm trying to make your honor just factually i believe the employer is suggesting that's breeze that the manual action would have been towards the end of this mail ballot period that's incorrect the manual action would have been scheduled as soon as possible after the decision of direction of election which i believe was january seventh and so you know it's a hypothetical we don't know the exact day that would have been scheduled to result director with schedule that but it would have been within a few days of the mail ballot election so at most you have you know it's a hypothetical but at most he would have had a few days expert campaigning as opposed to the cut off period for mass captive audience meetings that did occur here but again sense it's employers vergence established actual prejudice and this circumstance where they had over a month to campaign from the petition there's clearly no prejudice and moreover there was some discussion earlier about you know whether the unions campaign in secret and the employer never knows about the campaign until the petition is filed the supreme court has recognized for decades for example in the ghetto packing case that employers are rarely taken by surprise when election stations are filed and they generally know what's going on in the workplace so there's no evidence of that one way or the other here but i don't think the courts assume that the employer was was surprised and did not know that this campaign was going on before the election station was filed one final issue that i wanted to know is the status of mr competitor just to clarify his status was fully litigated at the pre election hearing and the contrary to the employer there was no there's absolutely no claim or evidence that the employer was present prevented from presenting evidence at this one day hearing to clarify what the employer argued to the hearing officer was that the employer wanted an overnight adjournment solely for the purpose of presenting closing statements the employer did not identify additional witnesses that it had to call or additional evidence that it wanted to affirmatively present on its own behalf but it could not muster until the following day if it had done so it is very likely that the hearing officer would have allowed that it would have been very unusual for that to be denied what they were requesting was an overnight adjournment just for the closing statements not only is that not required by the board's rules and as the reasons are profound would have been on reasonable but there is no prejudice that can arise from the failure to present have overnight to prepare closing statements where in these type of cases and in this case in particular the employer can file a request for review with the board which involves a full briefing so they have sufficient time to believe that out of all of their arguments and those go to the board of you so the the employer is never foreclosed from sitting down and writing out all of its legal arguments and presenting them in the manner that it wants to what actually happened that the hearing was a witness as well and after the election when the employer made its offer through seeking a post election objections hearing they attempted to proffer additional evidence of supervisory status with the regional director denied because that had already been litigated but to clarify to the court the only two pieces of evidence that they even proffered that they somehow were not allowed to present what first of all the claim that mr capet a could require drivers  meaning of act by requiring these route assignments he did not do so using independent judgment so even if you assume that this property evidence is true it does not change the board's ultimate conclusion and the only other proper evidence w we did not ask for adjournments solely to make a closing argument we proffered in our offer of proof and again this is part of the problem with the rule that there were numerous conversations with the hearing officer off the transcript record where we ask for adjournments to come back the following day so we could could work up additional evidence overnight granted those are not in the transcript record i know that however part of the problem with this rule as the dissenters to the rule know it is that the regional directors never in the room never saw him once the hearing officer is constantly going back and forth off the record deliberating with the regional director on some of these requests and so part of the part of the problem is that it fosters off the record conversations but i'm still on the argument  which all these people were was not at all we didn't believe that it was because of the community venture that those drivers had with the drivers servicing this advance auto parts customer at the other eight locations however i would  adequately prepare and put on that on the boards point that there were other what ways to campaign i would just wanted to note that the need of the board nor the acting director ever talked about that you know the argument over whether theoretically you know could we send a text message to a driver while they're on the road hopefully don't read it while they're driving but you know i subscribe to the notion that there's nothing like a good old fashioned face to face conversation that's never going to change and so i don't think