two primary grounds the first in the one that i'd like to focus on during oral argument that is the question of the loss of suffered by the national labor relations board during the period of time when the regional director of region ten w issuing consent election agreements the hospitals objects to the elections and issuing certifications of representative in favor of the union the second argument if it is reached by this horror and it would be are meant that it is not no need to reach it is how because of the issue is that the regional director abused the authority of the and buz his discretion in first issuing a notice of here on the hospital objection to the election and then a short period of time person himself without any explanation as to why a notice of hearing was no longer needed so i'd like to start of course with the issue of the board's  respectfully nodding your honor and the reason is because the issue is the final flanary to forward being exercised by the regional director on behalf of the board when he issued to be sent election agreements when he overruled the objections found that the regional director in that case pursuant to the stipulated election agreement with not apps or sizing the final plenary authority of the board that is a huge distinction between  very different steps toward yes they are but i would submit that it's precisely the difference in the statutory creations that caused the problem for the board with regard to the delegation the delegation here and this is on page seventeen of the appendix in twenty in the appendix which are there to consign election agreements in section fifteen the confederacy agreements are read finality of the regional directors decision all the rulings and determinations made by the regional director have a validly appointed and validly serving regional director who represented a valid a valid national labor relations board conduct the election and nationally relations board constituted with only two members is not a valid supreme court seems to i'd like to address your points both of them the first point you made was that if the regional director was valen you pointed at the delegations arrives that would be true were it not for the question the final if you look at section three below that it contemplates delegations to the regional directors as having the board review when the now when the national labor relations board made the decision to delegate final  and i actually have that here because i do believe it's been misconstrued by the board in its arguments in this case this footnote states our conclusion that the delegate group ceases to exist once there are no longer three members to constitute the group does address now a question that's decided by the court but rather one that's explicitly left open by the supreme court for a determination in a case like this where you're talking about the regional director exercising final plenary authority on behalf deference in situations where the act does not clearly speak and even the board or emits in some of its briefs that the act clearly speaks on the question of this delegation and to this point was addressed in the d c circuit final plenary authority i e someone else is stepping in and tearing out the agent you know the other agent of the principal the those principal actions then they must the board must be constituted with the poor during the findings of the regional director if the regional director was a proper congressional actor there was there and you see how it also actually addresses this point they say on the question of whether or not to give up the right to have their pieces reviewed by a congressionally proper or statutorily proper board that was in assumption underlying any action in compliance with the national labor relations board is that they have the authority to ask i'd like to return quickly to sharon difference because i do know that the board will rely upon it in this case i don't think the board is entitled to it because the act here is very clear  hell three b does not allow for the delegation a final plenary authority when there are less than three members of the board however even if the board is unable to convince you to examine this case in this issue deference the agency's interpretation of its statute here is not a permissible interpretation not only need has the statute is clear which means we should never even get to the second step but also because it frankly logically makes sense how could i e the regional directors exercise the final authority of the principle when the principle is without any authority to act on basic agency principles that doesn't make any sense and must be rejected furthermore the congressional record and legislative history here very clearly illustrate that the intent of the delegation of authority by the board to the regional directors w other grounds upon which the regional directors and already have been questioned by the hoss little's one your honor as you mentioned is the question of when the approval of mr harold appointment as regional director  recently discussed in southwest general incorporated before the d c circuit is the question of the authority of the general counsel during the scene period of time however again we submit that the very concerning issue of lots of in the regional directors authority during a time when a regional director and north africa and finally even if this court does not for some reason find that the board and i didn't do a regional directors route without authority to act there are means the question steves later with no reason to analysis the regional director reversed himself on that question and did so on the grounds that the hospital have not submitted evidence in support of the objections but i don't know that that deadline had passed before the first notice of hearing where it was found was issued by the regional director so even if somehow this case survives the core issue there are serious problems with the arbitrary may please the court my name is michael just from the national labor relations board i'd like to begin with regard to the nine hundred sixty one delegation of the board's authority under section three b and it's reasonable interpretation of the action i believe i heard will say that they do not dispute that the delegation can in fact survive the last report for him and that the question is only the standard of review but the standard of review in this case was set by agreement between parties those there's no basis for the for the employer to come back and challenge that fact i'd also like to point out that contrary to our counsels arguments there is no basis for distinguishing you see health from this case in both cases the parties had the right to plenary final ord review of the arties decision and in both cases they voluntarily relinquished that right and you see health the employer relinquish that right by not objecting to the decision of the regional director here the hospitals relinquish that right by agreeing to consent election agreements that permitted the decision of the r v to become final the only thing those initial points i want to focus on three primary issues this afternoon the first is the employers overall waiver of all their arguments the second goes back to the one hundred sixty one delegation and the board's reasons for protection section three b and third the you know adequately brief if you react in general counsel's appointment under the federal vacancies reform act which the court should not reach beginning with waiver contrary to what the company has argued waiver does apply and can apply in the sort of case where the composition of the agency is being challenged contrary to what the d c circuit circuit decades ago all establish that a party can waive the constitutional right including in appointments clause writing or any other sort of challenge to the to the authority of the decision making entity our basic c circuit disagreed and i can only point to the to the authority that we've already noted which clearly establishes that waiver waiver can apply in this kind of circumstance where that that waiver is particularly appropriate that the hospitals chose not follow a well established court rules and procedure that would have allowed them to preserve those objections when they deliberately chose not to introduce and offer proof to turn to do that section three interpretation which the board relies on here for the proposition that the one hundred sixty one television continues in effect that interpretation is entitle to chevron deference as the court recognized and you see health because it's a really because which the statute does not speak to is it reasonable and it's reasonable fundamentally because it allows parties to obtain a prompt and final resolution of a question concerning representation from a regional director if they choose to at the same time it ensures that if parties don't choose that path if they prefer to reserve the right order review in the our case they may do so as well that is an interpretation that is not only reasonable for those practical reasons it's also fully consistent with the statutory intent behind the delegation itself in one nine hundred fifty nine and with congress intent throughout the initial enactment and subsequent amendments to the national labor relations act in every instan congress was fundamentally concerned with delay in the representation cases and ensuring that parties have the ability to privately get to an election no delays regrettable in any sort of proceeding here it's already been three years since  forty which we cite page thirty seven of our brief congress recognized that we're parties were not able to get to a final resolution of an election in a reasonable time industrial on rest was the result because unions would have to resort to  recognition of strikes and would have to otherwise disrupt the production in this country in order to obtain recognition so having prompt elections where parties can get a final resolution goes to a fundamental purpose behind the act and it's reasonable for which congress enabled the the board to delegate that delegation has continued in effect since nine hundred sixty one through various periods of war loss and there's there's no reason for concluding that that delegation would last as a result of a membership requirement for action by the full board as the supreme court recognized him to in the new process decision that fundamental structure than the regional directors but to the extent that anyone would claim that a delegation cannot be exercised if the party that made the delegation can't itself exercise it with all those cases refute that notion and those cases reject he agency principles that the hospitals fundamentally rely on third i'd like to touch briefly on the the authority of the act in general counsel as we noted in our in our brief the only its already to the board to make the appointment the board here made that appointment but by the last act required it on on december twenty two twenty eleven to the extent that the that the court might have any any further concerns well first of all of course the court should for the for that reason should consider any sort of reliance on southwest general and the distinct rationale in that case to be forfeited particularly given the significant impact  which like all the other arguments here have been forfeited or abandoned at various stages in this case they were initially waived by the simple fact that the parties agreed that the regional director would make a final final determination after agreeing that the regional director would make a final determination already as the hospital's attempted to turn around and say that no they had a prior oral ad hoc agreement which would instead authorize an arbitrator to resolve those matters it's not clear to me what remedy the the hospitals seek for what they see as some sort of violation of their rights here if the case were sent back presumably they would once again refused to submit the evidence as they have refused to submit all along and the board board would refused to defer under the steps principles that it noted what we're really left with is a failure on their part to preserve their objections by making the basic offer proof which the board's regulations require under rules that are strict enforced to the extent that they claim that the regional director shifted course for an unexplained reason in in rejecting their there jackson's the regional director did explain why the objections were being rejected at john appendix thirty four and thirty six the reason was that the employer had failed to submit evidence that the original director cited the star video case for the proposition that the time limits for doing so are strictly construed we would acknowledge that it's not clear from the record why the first report was issued that initially started hearing it's equally clear that if the original director had proceeded to that hearing without having gotten any evidence submitted from the from the hospitals that would have been revers challenge the regional directors authority because the company voluntarily entered into a stipulated election agreement because you see hold explicitly agreed to the terms of the election the board insists that the company cannot challenge one of those terms now the d and for that reason there is no waiver of the d c circuit was right and the law is clear that waiver even if it had been properly raised by the board and it was not would not fly under these facts the  argument asks you to ignore the difference in the type of authority being carried out by the regional director in this case the d c circuit could not have been clearer and you see how often moral ba fact that what the regional director did here is step in with regard to this case they were the final act or they stepped into the shoes of the board that is ironically the board's whole argument as to why this court cannot review the question of the hospital's objections they cannot how difficult ways if the regional director exercise final authority and they did in issuing this consent election agreement and overruling the objections and over and issuing the certification the regional director acted without authority and that must be struck down in vacated by the work thank you