first in the one i want to focus on the most during oral argument that is that the certification of representative that was issued by the regional director in this case is not a valid service cation under the precedents that the board brought to th primarily this case the order should be vacated but beyond that there are also issues with the board's findings the board erred when it found that there was no liberalizations agreement that existed here and that the party's desire to defer director determinations of post election disputes and sometimes also pre election disputes whereas a stipulated election agreement allows per the regulation for a discretionary board review and that was the difference relied upon by this court to distinguish language of the statute reinforced by principles of agency law foreclose the boards out for and moral bait to delegate its plenary final authority when it had no forum a delegate panel wielding the board's plenary final authority speaks on the board board's authority there is a problem with this delegation and the case has to go back the order has to be vacated in the certification of representative must be vacated the board will argue to you that we have waived our right to make th argument because we did not test certification that puts this case in a slightly different procedural posture than us has mistaken you see health but not one that should matter to this court what we have here is a controlling question about the board's authority to act in this case with finale through the regional director that has been found to be a subject on which a party does not we've an argument and that is a subject upon which the court should look at th the rationale followed by the court in applying chevron deference was the agency is entitled to deference for its interpretation there because the agency did not have the regional directors exercising final finery authority that made it a reasonable interpretation the court distinguished from u c health and said that interpret her for moral bad and set an interpretation whereby final line area already is being delegated is a delegation that this case and those cases based on the finality of the regional directors decisions when the reason why you have the supposed finale of regional directors decisions is because of something that you agreed to do which is it the board having to do with that  in the union entered into an agreement that said you know for our purposes whatever those may be they may be our own convenience we decided the regional directors authority is going to be final we agreed to enter into that kind of agreement on the basis of the constitutional authority or the authority of the regional director to act which is a subject of contention now that was not at the time if you look at the court's decision recent decision and you see how they may encounter the same argument  and reject it the board says listen these two parties came together this time to stipulate an election agreement they agreed that they would abide by the provisions therein that's not sufficient to waive this argument now which has to do with the guess i take your point about waiver i guess i'm not making a waiver point so much i'm just saying that it seems a little bit odd to draw a distinction between those circumstances and this one that's based on finality that's based on finality the regional  reason we have the suppose if analogy here is because of something that you and the union entered into an agreement to a fact i'm not saying that there was a i'm not necessary as a waiver i'm just saying that i don't know that there could be a fundamental distinction between this case and those other cases when it's not something in the law that makes the regional directors of the world hear different from the regional directors authority in those cases is something that a rose by way of contract well two responses i think there is something in the law that creates the distinction and that's the primarily there are differences in the record there was also a finding by the court that there was a path of obstructionist behavior in poker that's not well present here and you also have the who are acting in an additionally arbitrary manner in the twenty ha but not to say that there is any not to open the door now to talk about things that weren't even briefed talking about consent elections and stipulated election agreements that being said i think just kind of awesome brings up exactly the point about the board is still c in other cases outside of the circuit having to do with consent elections being very different than a stipulated election the consent alexion as your honor pointed out is a voluntary contract that the parties entered into that under the regulations if you execute this type of election agreement you agree both parties agree but the regional director will have final say in terms of the objections to the election so i think that it's very significant but that maybe i'm missing something our prior case to true distinction contract to recognize that this agency official will have final say in terms of the election versus actually a waiver point right but i thought we said this kind of objection can be where i'm not i'm not certain that we're making that we do make a waiver argument and i'll get back to that because i actually assist different from a waiver or you know it so that they we didn't make voluntarily entered into an agreement they never there wasn't a right there wasn't a right that they waived they entered into an election agreement to hold the election under the context of the regional director having the final say so it's a voluntary recognition i guess that this is how the election is going to play out and terms of the waiver that is a different type of waiver and that's what we actually brief wait because if they voluntarily enter into an agreement to have the election conducted under this regional director who they voluntarily agree will have final authority but then they have a claim that then the claim is well this person to which yes we voluntarily agreed to have this person conduct the election but it turns out that this person was invalidly carrying out the responsibilities of regional directors should because they were carrying out those responsibilities at a time when the board just didn't have core right and then you have and then they say they have that argument and then you have to have a response to that argument and it sounds like what you're saying is our response is well you can't make that argument because you entered into this contract but that just sounds like a waiver right and wh see health and as a see we did say that this is the type of argument because it goes to the structure of the agency that that that's just not wafl it doesn't matter what's happened before if the party just brings it up to us then we resolve that issue because it is this the sort of claim that we look at regardless of what has happened leading up to this point and then i guess i would fall back then on what we briefed which was this is it there is the other side from the consent election there's the other issue of we've heard that we briefed that once you so this puts it on a very different procedure apostrophe you see helping us to see mystic once an employer recognizes the union and begins to bargain and then two to three years later decides to attack a certification on the basis of see mystic nor in s a c so if you see health and i see mystic addressed the specific type of weaver if you're you can understand that the weavers quite different right in that if you're testing the certification and the board is coming forward with an argument that was rejected that  board in those cases issued a determination as to the merits of whether the regional director continued to retain authority to which decision we accorded chevron deference and you see helping us a c but then didn't do that here i just want straight  facts in the do you know that i don't think i'm in a position to say anything other than if the board felt clear that he's not even out of the circuit was clear that if you do not test the certification the end he would choose to pardon and so i think they do how the necessity did which is to give chevron difference in interpretation that is not theirs but i don't think you have the board decision order here relying on the consent election agreement you don't have anything like that you have the board saying bargaining agreement you can understand that in that case the employer couldn't the board would have a policy interest in saying you've waive your right at this point to not only undo that collective bargaining agreement to go after such that's a policy arguments a good one but it's not one that necessarily overcomes our doctrine that says these kinds of clients can always be raised or usually be raised regardless of what happened before because it's so important to ensure the structure of the agency passes legal m you see health that this is not one of them right and that was and i guess our position is that this is a different rights the security situation i understand your honor completely i don't think that's one of the question of the regional director in terms of this might be way beyond this case counsel can't move the regional director without the consent of the board you know if that's true or not i'm sorry i don't know if that is true ok which i read the regional director during the period that the board is incapacitated here is operating as a principal officer which is a separate constitutional problem with the regional director which is because it's not appointed by the president with the advice and consent of the sun itself and i just couldn't see said i would say that i  i just throw that out there is a separate problem with regional directors in this period but it's possible that there's and i don't know but a lot of the authorities at the border delegated to certain officers of the board has delegated for instance i don't know if this is true if the board ha we do if we concluded that the waiver question the waiver issue that you raise is subject to the same waiver disposition that we had a down in d c health in s a c so we say well this court has ruled that these sorts of objections can be waived by conduct and so he can always be raised so then we have a situation in which this case the objection has been raised and we have to resolve it now if we look at the merits of that would be send it back to i would say that given the court's reluctance to go on just what the board said which is the waiver argument and then press the money to hear from the board on whether the board felt as if one is told you don't have a waiver argument here now do you have not understood you did not for i understand you prefer a man i guess i didn't ask the question to ask what you prefer and i'm getting asking based on our decisions and what you know about the way these things normally occur what would be the appropriate course is there an argument  a consent election has this authority in the absence of a board quorum and here's how we're interpreting the statute if if that's something that the board didn't do but but didn't i don't know that the board should be foreclosed from in the first instance rather than make some arguments that are compelling that's ironic given their position on waiver and also just completely unsupported by president bush clearly happened here is just like immoral bad day the statute should be considered to be controlling situations in which something comes up and we say well the board hasn't yet give us a given us interpretation of the statute and we usually like to have agency determinations interpretations of statutes because that's the normal course of how we do things and then we can decide whether the person that i interpret cation a footnote wanted if the board had done then if the board had done what i said that the statute was clear and that they had an interpretation then we would have given them the opportunity i did hear that argument today in an argument is not in the briefs and that argument is not in the letter of the supplemental authority so it's the same situation as you see how with regard that i also like to point out that even if we did apply chevron even if you did apply chevron deference here the got really no interpretation but assuming for the sake of argument they'd be advancing their argument that they had their authority to delegate to the regional directors in this manner i think that is were closed in the circuit by the very clear language very clear only permissible all interpretation language that arises in moral pay for these situations so there is no standard under which the board can succeed here this case the certification isn't valid in the order