imaging la mirada imaging west coast radiology irvine and west coast radiology santa ana why will referred to as a consolidated group as the employers in this case the employers come before the court today requesting that the court deny enforcement of the national labor relations board underlying orders and requests that this court vacate the underlying representation proceedings in these cases the issues i'd like to spend the majority of my time on today are the fact that the board has certified an invalid inappropriate unit in this case are multiple inappropriate units and that the board  improperly when it chose to impound the ballots from six separate elections and to hold those ballots to be counted until after all six of those elections have occurred there are other issues that are raised me ask about that last issue sharp it seems to me that if you're right that the ballots should not have been impounded and if the remedy is to invalidate the elections that are at issue that either the st election or the last election still ought not to be invalidated so if your theory is that the problem was every election after the st was deny the information of knowing the tally of the st then fine invalidate all of the ones after the st but the st was untainted on the other hand if your if your theory is that the problem is any alexion is invalid when it's tally is not done immediately then the last election on the nd day is fine because it's tally actually was done immediately so am i right that at least the st or the last election has to be valid and why our argument is more so the former than the latter of the two situations that you posit but i don't think it's necessarily true that a st election quote unquote must be invalidated rather i think we have to take the step the analysis back a step further and consider whether the regional director had alternatives that would have allowed for there not to be a succession of vote one after the other where in each of the votes could have been conducted at the same time and we don't deny that the regional director would have some level of discretion to make a determination like that what we are why why why and you're saying that if if you win on the merits the tally should have happened to be the only after each election are you more or less conceding that the st election i think it was la mirada should nevertheless not be invalidated that would require our position to be that the only issue with the way that the regional director sequenced the vote was the fact that the subsequent elections and the subsequent voters didn't have the ability to know what happened in the elections that happened prior i think the issue was that once he started it back to the regional director and you stay mr regional director you have some discretion but in an ideal world you would conduct these so that they don't fall in a chain then i think you have to say well i don't know i don't know that we can say that la mirada shouldn't also be invalidated because the question is one of could the regional director have sequenced these in ordered them so that you would have had that problem at all but she was here is your theory is that the real problem was in the siting to have all these elections at different times know this the theory could be very clear is that the that the regional director in deciding to have the elections that different times abused his discretion when he had the election that different times i and i'm not saying i do great with you but let's assume i agree with with what you just said it's fine to sequence them but it wasn't fine to wait until the end to tally them all assume i think the reason is that it went against the agency went against the board's regulations to the to the detriment of people in the later election to didn't have the information that they would have had  that's good for you and what sumaidaie i'm on board with all of that tell me why i should invalidate the st election law marotta because i think again when you send this back to the regional director and say your x your discretion didn't extend this far you need to give this another shot and doing it correctly that all the election should be reconsidered by the regional director perhaps now that he understands the limitation on his discretion the region of the board would prefer to run all of the election simultaneously i do believe that that decision ultimately is one that the board could continue to exercise discretion over that's the only reason now from the practical standpoint of what our argument our argument is yes was exactly question yet there are two prejudices and i think a rd related point one prejudice runs to the employees as employees vote on whether they want to be represented by the union it's relevant to them what they are getting strength of that union is amongst these employers and in this region i think there is a related prejudice to the union and to the employer and of course i represent the employer so i would speak  to employers prejudice in terms of the employers free speech rights under the national labor relations act to communicate with employees about what's happening in these various election involving similar groups of employees in the same union and then i think aside from the question of prejudice that there's also a question of the the authority of the agency to conduct itself in the manner we're doing so is arbitrary and capricious statutory interest i assume it's just in a f have we have a presidential election in which media organizations agree that they won't release any east coast results until the polls close on the west coast precisely to deny the voters in live on the west coast information you want which is who won some related election nobody think that's on that's unfair board had already from the regional director or found in the board has the earth or out that these were separate voting units so this isn't one big national election this isn't one vote with multiple boxes that are all going to count as part of team result and in fact the board does have a history of impounding ballot in those types of cases what they don't have any history of doing that where you have separate bargaining unit and these are that predilection with separate counts against you i mean might maybe my presidential election i'm our g is a little bit off the more accurate thing if we focus on separateness is the california voters who are to be picking the governor of california don't know the new york voters picked to be governor of new york when they're voting that's even prejudicial it's true and it's not true because i live in georgia and the voters in georgia knew what the election outcomes were when they went to the polls to decide about the voters in the runoff elections i think the point that we would be making is that there's no board precedent that that mimics or parallels what you're describing as the agreement between media outlets or reporting outlet nothing like that exists in the board's procedures and in fact they're directly to the contrary what they are saying is you shouldn't do that you absolutely should vote count votes immediately after there's no good reason for the regional director not to have done that in these cases and there are clear harms you had employees to whose names were included in offers of proof given to the yes i would have liked to know that information this goes to the question of this union strike i think my time has already expired  you're just one more which is if if we agree with you that the voters have that interest in knowing what's happened in the other elections would it have been an abuse of discretion to schedule  the election simultaneously i don't think we would have been in a position to argue that st of all that not what happened so i'm speculating a little but we would be the employer would not be making that point about there being you hear us i can hear you can you hear me twenty seconds ago ok my apologies it looks like it might have had to do it bluetooth can you hear me now ok great so i think the point is that the regional director here acted to intentionally withhold information he said relying upon discretion which was not unfettered a system that acted to intentionally withhold information from voter and intentionally mogs all the parties to these various proceedings from speaking you know between you made this general assertion the purchase of the employer i don't know that you record and if you look at the board the answer in brief you can see that there were elections that were held that are not at issue in this case if you turn to page twelve of the answering brief and you don't have the vote tallies for the other elections but there were other elections that i believe were held on both days they're not at issue in this case because objections were filed but there were other elections some of which in which the employer prevailed which was th so if you look at page twelve of the entering brief you'll see there are units eight through and then you have to turn to one hundred and thirty eight through j two and their board here has listed out those units where the tally favor santa ana it would have come down to the question of a sound a tone election with which is an election that's run by the board the election says not only the employees are asked not only do you want to be a unit but you want your unit to be combined not just  nuclear medicine m r i that would have been true for all except i believe the santa ana professionals so jay one is the only one who would have had some contingent of employees who come under the question of the question of the supervisory medicine no i believe it would have been just nurses because the reason it was separated out we could confirm this with the decision in direction of election but i believe it was just nurses because they have to participate professionals have to elect to be included in a unit impounding the ballots because i do think that it presents a legitimate issue for the board however i do want to make sure that i do mentioning the fact that the certified unit violate the national labor relations act because of course we don't even get to the question of  of the ballots if this court were to determine that section ninety three of the act did not permit the board to entertain these petitions or certify these are getting units on that question as you all know from reviewing the bri section ninety three of the act prevents non garden cloister being combined in units with guard employees ninety three of the act also defines what a guard is a guard is an employee who is employed to enforce the   force against employees and other people roles that protect the employer's property and to protect the safety of persons including other employees on the employer's property and there's been  charged with ensuring that they don't let anybody in and they don't see anybody else letting someone in to secure areas of the courthouse and they  have security at least one of them has a security button in their office to call for assistance if there's a break in and they're charged with all kinds of responsibilities for maintaining potentiality of information for not disclosing information i don't think they are and of course i would urge your poison you if you were the employer to develop a full factual record before a determination would have been made on that but i don't think they would be and there's a distinction the distinction is that you have security guards at the courthouse and they're the individuals who are tasked with in the st instance the application of the security rules yes it is there is a definition of security guard say that if there's so if your client had hired a security guard instance the of the role of m r i technologists in nuclear medicine technologists would be removed but i don't think that at the end of the day you can avoid the fact that those individuals at those locations are tasked not generally but very specifically with protecting the employer's property and also with protecting fellow employees and visit our from the harms that relate to their specific mode galaxy so it is distinguish it's not a general all obligation to safety it's very specified in the evidence of that is borne out by the robber that was anything that this is a guard definition to most everybody  sure and i think that the answer you're to to your question has to distill down from board president right i mean i could create a role but it would be self serving so i think what we have to do is actually look at what the board has decided and where they've drawn the lines and where the board has drawn the winds there are a couple of i think key points and i think that in this case these employees meet those key points you have to show that they are specifically pertinent specifically tasked with protecting property and protecting the people who are on because that means so i think that you know like a general security training where everybody is told like this is where the fire alarm is doesn't quite cut the mustard but rather somebody who's recei particularized in special training to say for example you cannot enter zone for because your pacemaker might fly out of your body thereby injuring you and potentially other people those are distinguishable i think this relates back to the board tries to make a similar point that everybody everybody at the facility knows not to let someone in zone for there's a really big difference between the janitor being told to close the door and an employee you know it is their job their specific job to make sure that  a nuclear medicine technologists it is your job your specific job to make sure that radioactive isotopes that could literally poison the water supply of a town you not we keep the hot lab within the nuclear medicine the nuclear you're referencing it when it's your manual j two hundred and one refers to it it may be the case that there are facilities that have security these manuals apply not only the facilities that issue here but  record quite extensive but i don't recall and i was involved in the underlying proceedings but i don't recall that they had security personnel and or any that had be again when we're talking about specific security functions even if there were a is it your position that those references are to the techs or if not i think the answer judge lets question have to be there are security guards the kind of security guards we think of when we think of security guards i don't think that's accurate i do see the reference you are both making to security personnel police and guard screening and two points in response one it's not clear to me that these references relate to security personnel who are employed by a facility or on behalf of silicate the for example police officers might be the manual explicitly delineates the security function performed by the m r i technologist as opposed to those security personnel it says the policeman security guards have to be screened by the m r i person now in order to enter it is the function and the ever present duty of the m r i technologists to enforce the security of those zones surrounding their work area and that's that you know regardless of the presence of a security officer that's their job their duties in that regard they're ever present they run in the background of any image they're they're performing they the magnet is always running isotopes are always radioactive it is indeed the case that these individuals do constitute guards and therefore this is another reason why this case the the court must deny in forstmann of the board's orders in these cases i am happy to take more questions on on either of those issues or or any of the others that were raised by our briefing but i am over my time so i would ask for a moment on rebuttal and i'm happy to proceed as you wish the questions will give you a few minutes well i'm heather baron from the n l r b even more asking you to enforce the board's orders and feel i can start with the guard issue since if that's all right with your honor's given that that was what you were discussing the st thing i'd like to point out is yes the board has given us guidance as to what the statutory language of ninety three me and it certainly is not if there are other security guards then we have a yes or no determination about these particular employees and the key here is the board's decision the board's decision in the boeing case in which the principle is debated in our briefs is whether or not the person in the employee is employed a guard to in force against employees and other persons who also protect property etc that has been interpreted by the board as meaning the regular of the employees have to be such that what they do that is guard like is not minor incidental to their duties and what i don't want last year is what the regional well director on the board was looking at is that these employees regular duty he's are to scan patients for various diseases and in the service doing those scans what they are doing is making sure that they do it in the best way possible for the patient and  guards employed as guards under the act and here the record evidence does not demonstrate that they are acting in the ways that would constitute gardens in a way that is anything other than minor incidental to what their main duties are that they're of in their own area they're making sure in the context of their duties with regard to diagnostics that they're keeping you know the diagnoses going and the scans going the way to be sure i'm not aware that it needs to essentially be either small part of the premises or a large part of the premises the key here is whether or not it would look at their regular duties and again there's a language it's conjunctive about protecting the property of the employer also as against other employees coworkers and one of the other things that on this record again the burden of proof being with the employer here is very paltry in any regular part of the duties of an m r i technician or nuclear technician here is to guard against employees who would be trying to you come in and out with this sign on the door that says level four and in fact in bed that jurisprudence with the board has done and that's what other employees like judgments hypothetical about you clerks comes in the board has consistently found the purolator case for example the employees have duties with regard to security that are no greater than that of other categories of we for example in this case the manual does say that regional director did your is important is based on the record that evidence that there was presented made the very reasonable determination here that there was no showing that these employees were guard such that they should be denied the representative of their choice which is that the the union in this case and so if i'm certainly happy to take further questions on the guard issue i do want to make sure i address all of your questions however on the tally of  and i i get that no union election is going to be in laboratory conditions but i respect them and like laboratory conditions to unfair conditions where a hearing which is what we're looking at here if we accept as true what the proffer was which is what we which is the require sponsibility of the regional director of the board here proffer was that it appeared that's what was happening not every single moment of the entire election but i would put that on in a spectrum lower than a laboratory conditions violated particularly here where there was no proffer that either the observers said that there was any problem that there was any problem that was going on during that case or that whatever positioning it was a little confusing in the proffer exactly what the positioning was alleged of the border agent would not be such that should there have been a problem or something but her attention that she couldn't address it right away of the election but we would absolutely are you know here the board was saying is that even if granting that there was here and there that was not something in this instance that was objectionable certainly the case is that there are sort of board could have made a reasoned explanation for doing the tally at way into the end of the two days of the tally for efficiency reasons lack of personality just can't be in every place every time but in terms of the explanation they buried that in a very short footnote that seems about as on elaborate as as what this court found to be insufficient reasoning in the  well if it with regard to what is it or was it not heartless we don't have any evidence here or any proffer here back from here other than imply a couple employees would say they would have liked to have whatever the information was and we would of course say that there isn't a demonstration that there was any harm so i would agree with you there but in terms of i believe your st two some sins were that original could be reasonable for administrative reasons and i believe i agree with that and i'd like to add to that the board's footnote i think you're referring to also does not take the place or supplant what the regional director said in terms of why this happened and therefore i would say to you that the way the board a lot of times does its decisions in footno here in what the what the board was finding with regard to why it was administrative number one convenient but also very important that i don't we all discussed earlier and i think this answers your question judge walker the problem with not doing it this way in the regional directors mind wasn't like anything katz a general oh it would be unfair its we would like to prevent objections and that is very important here because of the prospect of  was doing the board agreed with as well as the administrative efficiencies of doing this was let's limit objections i can take place and in this instance should there be dissemination in some manner of information that may or may not have been true varying objections i'm sure employer could possibly think of that would be objectionable the regional director wanted to do administrative efficiency as well as let's limit the amount of objections or dissemination that could take place and so she was do that there is no case law that has been cited that there is any sort of st amendment or other right to no one facility particularly here the paradox let's flip it the other way the paradox is the employer has been arguing these are separate individual units and should not do you want to watch and so the board is treating them all separately and as the are decent a paradox here is that somehow even though they're all separate from the employer they now all have a right to know each unit what another unit supposedly has no community of interest with the others is doing and so you know sort of spinning back to your initial hypothetical about a lot marotta the st one at bat st one there's absolutely you know no effect from anything on this record so here we do you know firmly believe his his discretion was exercised in the weights balance of addressing all the concerns getting all the boats getting everything done ministr analysis what's your best argument for why we should sure well i would say that in this particular instance the the argument would be that the board here has implementing it rules and regulations and implementing its rules and regulations it gets broad discretion and so when we're looking at it you know this wasn't briefed but when you know you're looking at you know administrative law and that sort of if there's a decision and even if that decision is in some way best argument is that merely because employees may want to know what happened in the other elections hasn't demonstrated that there was the standard to overturn an election being met here which is that you know there was no free far from that in this case and i think that so should the court wish to apply harmless error this is one of those agency decisions that is wisdom you know the decision makers discretion but that is not done without explanation to count and tally the ballots and make them immediately available to the parties and that seems to  reflect alla see judgment that more information is better information sooner is better than information that's later so why shouldn't we invalidate this just sixty nine a haven't been he says on conclusion of the election the ballots will be counted and the tally of ballots prepared and immediately made available to the parties  i would say that in the board in the st instance interpret ing that regulation has under the independent rice case as well as have the board explain why it was not doing so at the again end of each individual one if they think had this court left open the possibility that the board could do so by explaining its interpretation of that regulation given all the discretion that the board must give delegate to the regional director for purposes of administering elections all across the country is that in this instance that was the best way to most fairly vindicate the rights of both the employer and the union and most importantly the employee and that that would be why this court should not invalidate on the basis of simply that particular regulation says count the ballots and make the tally immediately available right and they're pretty and it seems very hard to reconcile with any reasoning that oh gosh we should hold back information because it might rise to objections well i believe i understand your concern your honor i believe however that the interpretation of this regulation that the board has done even in instances which i'm not sure that even the employer would disagree with for example in cases where there's a big multi employer you know i'm in there doing an election this kind of thing doesn't happen all the time but it certainly does happen and when there is judge walker was was was positing certainly an instance where there isn't any sort of harm that's been you know that with what and at least as the facts on the ground in irvine suggest you you have ordered officials and monitors from both sides on site of the elections don and you're talking about counting thirty votes what's so hard about that sure i don't i don't think there's anything that i would use the word hard about that but i would say that given the fact that there would be representatives there all of the other elections are overlapping in terms not all of them but some of them the same time in six days who could be president but at every site there are representatives of both parties and we have so many of these elections in given that there's the possibility of dissemination that could be in some way objectionable and we could have don't play a should there be further objection should there be many objections the best way to be both it's not just efficient but also you know preclude there to be objectional behavior with no risk of harm would be to wait until just the very next day after the last election and what's the board case a lot of parties can make two things that go on in elections and one of the things i mean there's a lot of different a lot of different presidents about when one party either says something that is true or isn't true whether it's a forgery under the middle and standard if it's not a forgery and there's the van dorn standard which talks about whether or not it's still something is disseminated a unit that is such that it can impact a free and fair election there can be a number of some of objection objections to various things that have happened in the election for example in this instance i think you mentioned irvine there could be what the border agent has done and to the extent that that content is or isn't objectionable if it spread out if it is something that is that happens or didn't happen and brewers can go around and inspect the laboratory conditions of the election at different places that's where the dissemination comes in dissemination of objectionable conduct can be a problem with the regional director was doing year is balancing you know to you know ten different elections two days with the concern that there could be objections to you know to this what was going on given that there are you know could be that risk in the discretion that the regional director had the regional director one union two of their members to to join with the other or the other union so i guess i should this bill is my ignorance of exactly what it means but what it means for purposes of this case interests or is it right your honor you know i don't know all i'm sorry i don't know all of those answers and i think that illustrates why it's insufficient for the employer to get a hearing with regard to this given that the employer would essentially be getting the they don't getting and asking questions to ascertain whether or not there was an affiliation the vendor employees would have been concerned about such as not to vote there are so many different steps along the way which the board has said over and over a shearing is not for you so it's out that type of speculation it's if you assuming all the facts that they have they have stated is there reason to overturn a fair  definition well in this case for sure affiliation was never ever a problem was never you know point out in the brief ever raised by the employer in this case in fact i believe they stipulated to the national universal care workers and the union as as the name of the bell and so to the extent there is any sort of problem again is i would say that would that would have overturned the free course of his election the burden would certainly have been on the employer to present facts that would board has pointed you to boeing boeing is an opposite the reason is because in boeing the individual that issue did not possess guard duties that they regularly perform they only perform guard duties under the statute at certain point of time i think it was when employee other employees were on strike or something like that it wasn't a constant ever present guard duty and i think the record will reflect quite clearly that these employees at issue do have to enforce their you know statutory guard duties in terms of exclusion from areas against other employees and that they do have greater responsibility than other employees moving next very briefly to the question of the urban election these offer proof is very clear and it speaks for itself  encourage you to look at it the offer of proof are are all in the appendix that one thousand and thirty one they very clearly explained that the employers election observer are by and literally watch the border agent for the entirety of the voting sessions that with her back to the entrance to the room you would feel action was taking place from the room in which the election was taking place and the balance of that that that could mean to me just as much that we're talking about the and that sounds like you have to that is defining the room which room the room in which you actually was taken place in the ballot boxes and that sounds to me like a substantial issue of material fact upon which the board was obligated just by vaguely phrasing do respectfully disagree but i do wonder i think you're i think your point is well taken and i think the fact that one person my apologies i'm sorry where does it say the know that's just the room where the room where the election would be taking place in the room with the ballot box would be the same room so we don't need our event her back is turned to the room where the ballot box is located break grams sometimes there wasn't room for everyone to sit in the room it is entirely possible that this reference is to someone who is fitted where if they were turned in the right direction they'd be able to see what was happening in the room but they weren't actually in the room i do understand briefly to the question of the impounding of the ballots very briefly ok when the board when the board's appellate lawyer says i think with the argue with thinking there to you in an oral argument it's evident that the board does not have a sufficient underlying rationale or basis for the action it took and in fact the regional director did not give a robust explanation he said two things administrative efficiency which is arguably not a basis but certainly is not one here for all the reasons we have discussed there were literally board agents at each of the spots who could have counted in some cases three ballots and what so there's no grounds to make an argument about administrative efficiency no reasonable grounds and then this question of two entirely speculative harm in this entirely paternalistic approach that the board is going to deviate from its own procedure which is delineated in its rules to not and not follow