morning they please the court my name is maurice vast and representing the appellant's we're here on behalf of thousands of small business employers in texas and their affiliates around the country who are challenging the most sweeping changes in the election rules without an act of congress and did we say these changes violate the acts of congress particularly the taft hartley act now there's twenty five different rule changes we focused r p o on three categories and we'll see how many of them we get to  this morning but the first one we want to focus on is the issue of the preclusion of employers presenting evidence about voter eligibility in the mandatory pre election hearing this is a hearing that the board tried for years to move to after the election but taft hartly they said congress came in and said there must be held before the election it also rewrote the entire section dealing with the appropriate hearing the board says there wasn't any change but we provided the side by side there are eighty nine words in the paragraph that are new and only fourteen that are the originals that i believe is above eighty percent of are changed and the words appropriate hearing even before were not interpreted to say that you can have a hearing at which you will not be heard and that's what the board is saying now they're saying on a question of representation namely who are the voters who are supposed to be represented that employers will not be allowed to present evidence and they've provided on the inland empire case and the district court relied on that case but that case does not so hoped indeed it simply said that the  at that time didn't have to have a hearing it all wrong that the court said well when the hearing is held there must be a full opportunity for the parties to present their objections the board to say you make of this argument that the there's nothing that requires  board to rule before the election and so they can tinker with kind of how all this is done since the same did if you have the hearing but you don't get a ruling as if you don't have the hearing and don't have a ruling well and it's not the same difference because as this court found in the dickerson case the case that the board has cited there's a quite a lot of value to having these hearings and making a record which was new language that the effort we had to put in there making the record helps to narrow the issue the dickerson case there was there were a lot of supervisors in dispute many of them were found after the pre election hearing to be resolved only a few of them were deferred if the pre election hearing it up and held in the evidence and not compress ended the nothing would have been narrowed and so for the board to say well these are hard issues and they may be deferred and the parties will still have some uncertainty that would be the that is today the exception they want to make it the rule and that's arduous when the decision is made regardless of hearing itself would narrow that right and exactly the hearing itself merited but that's because it allow the decision to be made normally once the hearing is held and evidence is presented the regional director does make ordinarily and it shake out we know who are the supervisors and who aren't who's in the group and who and before the elections help and then that would in turn foster in the ability of people to know am i one of the gang that can talk in that world or in my part management that has to obey those rules and that's kind of critical to know who you are it is critical it can't always be decided at least the board has had this practice of some once regions don't decide because maybe it's only a few people and yet that where there are groups of people that are presented to them they routinely do decide and it has value and for the board to claim that it has no value is itself contrary to the act contrary to purpose the congress went out of its way to ensure other than this confusion about is somebody essentially part of management or are they part of the potentially represented group are there other things are there other people who are affected by not knowing the answer to who's the unit but yes there are in fact in the cases that are being decided as we speak there be hundred now cases where the sun has been applied there are all kinds of categories of workers who the regions are now the further they are not allowing consideration of them there in the public dockets the regional director decisions or categories types of workers as opposed to the supervisor regular employee distinction yes so it's like do i do the hammer and am i the one who goes to get the nail those kinds of distinctions yes there are it's not limited to supervis supervisors is one of the most important categories not only because it's fx what they can say or not say but because congress also amended that have partly at specifically to exclude supervisors right at the same time that they're saying there must be a pre election hearing this is yet more evidence and i just want to make one point with all the briefing in the this lengthy mt everest of regulation as described by the dissent the board cites no case in which voter eligibility issues were found by the about them a shovel versus as applied and you've now said that there's eighteen hundred elections that have taken place since the rule why wouldn't we wait for an as applied then to actually see how it transpired instead of the facial which has this argu a problem of you know sort of circumstance for multiple reasons first under the chevron test not required that you're not supposed to wait there this is a challenge to the rule itself it is causing harm on a daily basis eight hundred times already and so the parties are harmed now there is no discretion permitted by the act and so this is the there is no set of circumstances in which this rule can be applied legally because by granting discretion to the regional directors they're violating the plain language of the yet not to mention the plain legislative history the department of rb has cited no language which supports their position and they have cited no legislative history which contradicts the conclusive statement of the father of the tartly amendments which was that the function of the hearings is to get evidence about the unit and the eligibility of voters to vote those are the questions of representation the board has arbitrarily compartmentalise those to say well appropriate unit is a question of representation but voter eligibility is not what could be more fundamentally a question of representation then who is it that the union represents or claims to represent who is eligible to vote in the election that of course is a question of representation the board cited no authority for its rule that is part of this rule redefining the question of representation council but are you referring to a statement made by senator taft a single remark is that but you're going back to as far as you know if we're trying to ascertain the intended functions of the hearings are we to really look at the remarks of a single legislator where the legislator is the sponsor where they and not to mention the sponsor widely recognized to be the controlling figure behind this whole legislation where it was prepared room marks a prepared statement not a spontaneous statement where is an contradicted by any other legislative history or any plain language frankly under those circumstances we cited multiple supreme court cases and cision of this court that said yes you give way to that and why wouldn't you this is what the sponsor of the law intended it is the best expression of legislative intent they cite one case in which the sponsor made a spontaneous remark that was contradicted by committee reports completely different situation the sponsors testimony is not the only thing to consider but here they have presented nothing else they presented nothing to contradict it and the plain language we start with that that supports us it says there has to be a hearing if there is supposed to be a hearing you have a right to be heard and you can present evidence now it's not a formal hearing it doesn't have to be overly technical for example hearsay exception so don't get involved in these kind of hearings if that's all they were doing we wouldn't be here but they're saying you have no right to be heard at all that is way over setting their bounds if they have never held this before and in fact the one time they considered the issue about twenty years ago a board in which the members could barely speak to each other it was not a co equal group at the time they unanimously agreed that it was required by the senate she and the arbitrary or is it arbitrary anyway even with an opt out if an employee could opt out and say i don't want my personal email and phone to be given would that cure the problem and is the or is it simply any revelation of this technologically advanced information like phone numbers is that the problem we believe opt out would be better but we didn't really  opt out we believe it's arbitrary and wrong invasion of privacy with or without an optimal saying we could make the rule but i'm asking that if that had been in the rule would that not avoid the arbitrariness and the privacy concerns that you raise because then the employees could protect themselves from unwanted advances if you will by the union and unwanted sharing of their right although it does impose some requirements on the employees it would certainly have been an improvement and the rejection of it of that option was itself arbitrary and capricious it also would have been more consistent with the congressional expressions of intent in the other privacy laws that have been passed in the last fifty i know for example i am a member of the state bar of texas by my license and they have something you can opt out of it is when you give the information you can check that box and when you give them your e mail address you can check a box that says i don't want my email address publicly disclosed so i could see employers going forward doing that you know as they ask you for the information have you check or not check a box about what you want right that would be an improvement  it still puts us in the situation of why is the board doing this it's what section seven the supposed to give employees the rights refrain from any support and as part of now working they are being told they have to provide this information to support unions section seven is other mechanisms you mention the opt out but with social media now the unions have more power than ever before to communicate their message you tube and facebook and twitter all these things that i haven't even gotten the hang of yet they're all there and the unions have them and they know how to use them they are getting their message to employees more than ever before so what is the need only of the plate looks at that website well but they don't mind they want the e mail they want the home address they're on the telephone numbers what they want they want but what is their right to overcome the right of privacy of the employees that congress itself has recognized is it not an option to use work phone and e mail because of the management overlay or what is sort of the words out of my mouth because the board has separate from this rule just issued a decision what about your go purple communications in which they said that while unions and selves can't automatically get access to the company mail any of their supporters is now guaranteed the right to use the company e mail to spread the message so all the unions do is get it's one of their supporters and they're getting access now in the employer's property somewhat controversial for other reasons but again and this was pointed out by the dissent what is your possible need to to get at them at home ok so then we are here to look in essence at the process as well as the result of the process and one of the arguments to be made here is while they looked at these privacy concerns they looked at the potential breaches and they weighed all the evidence and came out the way we did and we the circuit should give deference to them i'm wondering did they look at this because it kind of seems like they go well yeah we know that's a problem but it hasn't been a problem in the past which of course they important point about deference they are entitled to no difference on the issue of electronic communications and privacy of electronic communications on identity theft the i r s which we cited says putting this information together cumulatively adding on to the home  addresses with the e mails and phone numbers is going to lead to increased incidence of identity theft so the board is claiming deference are out this proceeding but they are entitle to no difference on that because they have no expertise they have no expertise that's going to say something about the board's own internal processes but i'll pass on that point they are aware of them as a layman is but they are acting as if they know what they're doing and what the actual invasions of privacy are going to be i'd like to bring they made no effort to really all start with the privacy issue because that seems to be the tail wagging the dog here already so the rule provides for two new disclosures of employee information there's the initial list and there is the voter list and what we've just heard mr bas really focus the privacy argument on is the second requirement which is the voter list the voter list is not a new requirement itself it just requires additional employee contact information so under the board's longstanding which was approved by the supreme court employers within seven days of the direction of election had to provide the names and addresses of the of employees eligible employees are eligible to vote and they will updated that now also required in addition to the home addresses e mail and phone contact information now that really explains at this change was made to reflect the present realities of how employees and institutions communicate with one another a t c doesn't really dispute that of communication have drastically changed since excelsior and so the board found that in order to better it be in six celsius purpose which is to ensure or to maximize voter exposure to all sites all viewpoints about union representation it was necessary to update excelsior to require employers to provide petitioning parties also available cell phone email home phone number contact information and the board depth study of the kind of hacking and data breaches that we've seen even in the us government came protect their own employees data and the pervasive problem of identity theft which also didn't exist back in the excelsior days so where is this study this extra extensive look at this point in terms of the identity theft argument your honor the board looked at but it wasn't really a complaint about the rule itself in providing information to the union it's about the fact they were all as you just mentioned subject to it but the more you put something out there the more places i have to put my email address my this my that and the more that's linked to other stuff about me the greater the risk so it's already sitting in the employer's data massive base i agree it's already at risk now you going to give it a union he's going to give it to their third party vendor who's going to make a pretty email to say and he's going to give it to this is going to give to that and maybe they all intended good use of it but they're even more vulnerable to hacking and so forth then and then the employer and the employee who thought i'm getting my cell phone so my employer can get ahold of me on a weekend if they need to is suddenly you can only use first of all the information is only given to the party so the representation proceed and secondly those parties are only allowed to use it in connection with the right but now they have it that's what you don't seem to understand what the board made no effort that i saw to examine it's like they're thinking well if we tell everybody to behave themselves they will i would point out your honor that the board said that if there is misuse and they find there's misuse and parties are using it for reasons that they're not supposed to that it would  everybody gets hacked and has our identity stolen we have this whole disaster and then we'll we'll take a look at that and this may be without the union not i'm not saying the union itself is going to try to steal these identities but that's the problem with these unscrupulous people even in other countries doing this and so it seems to me the board made zero effort to look at that and examine that with any seriousness they were very dismissive of that and how can we give any credence to that or find that anything other than completely arbitrary to not at all consider a very real problem again you're out of the board's position as it did consider the problem but this problem is just part of our martin life and you know the board couldn't put in place every safeguard to ensure that this was not to happen but this employees in opt out because they're making the decision that well this is part of life so you just going to have your your email address stolen it's not me deciding i'm going to put my e mail address out there for the world to see it's you deciding to put  of administering an opt in opt out procedure on they found it would be in ministry to leave burdens on they would also delay the conduct of election employees would have to have some place to time to decide that with and have to be compiled in the information would have to be provided to the or the petitioning party and so that would be opt out be like it is for the state bar in texas when i give them my email address to tom i don't want it put on on a public database i don't want you to give it out check the b why can't that be done and that doesn't take into account the significant section seven interest here that the board found in excelsior that was approved by the supreme court and that there's a value in employees receiving information from all sides even if they're not be kind of completely contradictory to the purpose of well see here you're trying to protect them from themselves if they don't want this information section seven is supposed to protect the employer if they don't want let me ask you this i think one of your positions was well they've already given the whole thing they've given this private email to the employer is not a condition of employment but if they give the home phone so in that will make sexier that it's only requiring available e mails and phone contact information so if an employee hasn't provided this information to the employer the employer doesn't have to go out and obtain this information and provide it to the you ninety six point and bury were apparently they felt felt like you didn't go deep enough so if if the employer being you know some big company doesn't have a database doesn't have my home email but i've given it to my boss in the past because he needed to reach me on the weekend in case i needed to come in danbury seems to say you should have found that out because you the employer have it because the boss had it even though you know big company x didn't have it sitting in their database now wait two days to figure this out well iran or it involves a situation where the employer was aware of there were multiple databases where employee contact information was being kept and it only provided information from one of those databases and the rule makes it clear that i may be burdensome if this contact information is kept in multiple databases and so it says that it's presumptively ok you can produce a list from each of the databases and furthermore the rule has an exception so the employer there's no indication that the employer went to the board in that case and said this is going to be very complicated and burdensome and i'm going to need an extension of time the decision there was just based on the employer's lack of about what the hypo i just so you have a big company you know general electric or somebody who has a database maybe two or three databases but also have bosses in the individual offices who know their employees and have a cell phone and think say hey katherina once you're out let me put it in my cell phone and now we have each other cell phone number because we work together all the time and now this thing comes out with that in that office in the dallas office have to have to be consulted to look on his personal cell phone to see does he have my personal cell phone number to give to the union i mean i'm not sure if the rules completely clear on that but it is supposed to be information that's maintained by the employer generally so if it's just a supervisor who's kind of keeping it for his own purposes i'm not sure that that would fall under the rule but even if i don't think you know of even thought through all of these ramifications in the same world where we all have so much technology you've got all of these issues that i don't think you know the answer to and you're expecting these employers to figure this out in two days well again this is also a facial challenge your honor so it's a b c s burden to prove that in every set of circumstances and in light of the fact that the voter list the two day deadline is subject to an extension of time by the regional director for some of these issues yet the board couldn't identify every potential issue that would come  up in the future but that's why they provided these exceptions for the various deadlines so that the parties can inform the board of the problems and the board can you know allow for extensions of time i'd like to move back to the pre election hearing argument or what  hearing by entering into an election agreement who's making that decision because the rule says ordinarily so who has the discretion to determine whether that's done pre election or post election isn't it doesn't it go to the regional directors to make that call and i'm sorry and understand the judges on a question about whether or not there's a pre election hearing right there will always be a pre election hearing the only reason there wouldn't be a pre election hearing is that the parties themselves have voluntarily entered into an election agreement parties enter into election agreements where they agree on the details of the election and the contours of the unit so unless the parties in here into an election agreement there will be a pre election hearing and i just do want to point out at the outset here over ninety percent of the cases election cases are cases where the parties interest to these election agreements and where they agree on the details of the election including the election date but in the event the dispute here really is about what must happen at the pre election hearing if there is going to be a pre election hearing and position here is that if there's any disputes about who might be eligible to vote the parties have to be able to put evidence on that in the record at the pre election hearing the problem with the argument is that nothing in the statute on him to give us leave requires the board permit such litigation and in fact what a b c resorts to rely upon is the statement a senior senator taft which was a single and isolated state in what sounds like her real problem to me of how do i know if i'm a supervisor employee in these situations where it's unclear and so i don't even know if i can talk to to my friend over here about the election as a fellow employee or whether i would be deemed to be management that seems to be a rather big problem well the board doesn't dispute that there's a complication when supervisory status is disputed but this complication existed before the rule was in effect and that's because as we go  at try to resolve that well i mean your honor there another argument was made is that we aren't allowing parties to put forth evidence to narrow the issues there are other minutes that were specifically made to address that the statement of addition there's nothing that precludes a party in a particular case from litigating disputes the rule makes it very clear that it's the regional directors the exercise of his discretion he can determine whether or not he's going to allow litigation based on his judgment of what might be most industry dibley efficient but also taking into account that these disputes can frequently be mooted by the results of the election because regional directors have always had the right to defer making the final determination on eligibility but so getting back to your honor's point though with respect to the supervisory status issue because regional directors have never had to make a final determination on that there's always been or do you agree that it's generally they have made them even though there may be the exception but generally speaking those decisions have been made i want to see generally your honor we cited several cases in our brief where the board utilized a challenge ballot procedure to defer decisions on supervis including the divorce and of the hundreds of thousands of disputes how many were resolved pre election before this rule changed and how many weren't there's no statistics on that in the role but even if a supervisory status determination was resolved prior to the election by the regional director that decision isn't subject to reversal by the board in the courts of appeal and as this court held in height funeral home even if we get a final board and decision on these issues that the employers need to have resolved i would think before the voting takes place but again your honor as you point out that there can't be an ultimate resolution of it before the election takes click place because the board  reverse the regional directors determination and then as it enters the exhibits that decision is then again subject to reversal by the courts of appeals and i think it's important to point out your two eleven establishes or sets forth over twelve of any of which one is enough to make one a supervisor and so if this is really in dispute there's just a great opportunity for extensive litigation here that existed prior to the rule and the suggestion that well if you get a determination by the regional director of the pre election here in this problem is going to go away how would it resolve the problem because again of the levels of review that exist here so i think relevant to the question about the scope of the pre election hearing is the fact that the board of the board challenge ballot procedure that i've alluded to again the ward has utilized this challenge ballot procedure since the beginning days of the act and what that means is that the regional director  determination on eligibility prior to the election what in effect a relatively small percentage of the unit there seems to be the suggestion here that the regional directors are just deferring like half of the unit but that's not the case the board didn't set a bright line rule about what can or cannot be deferred but it did with every channel directors discretions and going about exercising or that isn't about going about exercising discretion and it was based on previous board and circuit court precedent and board circuit court president indicated that deferrals of up to twenty percent of the unit wouldn't necessarily result in the election being set aside and so the rule just a reasonably concluding the rule the board recently concluded if regional directors don't have to make a final determination on this pre election hearing on then we don't need to have litigation of it we can resolve that for after the election to the post election proceedings and then we can resolve the status if necessary to certify the results of the election but the regional directors then have full discretion to make these calls correct that's correct and so again i just want to reiterate we have a facial challenge here it's a b c s burden to show that in no set of circumstances  here they're referring to the legislative history because there's nothing in the text of the statute that says anything about a minimum period of time between the petition in the election on that legislative history is not persuasive for the reasons the board explained in its  basically a b c is pointing to two statements made by legislators relating to a failed legislative proposal what's the benefit of the change then why was this change necessary so right the board did explicitly knowledge that it was many of the  aren't hard into timing but it did find a particular problem in fully litigated cases again that's the ten percent of the cases where the parties can't enter into an election agreement and the median period of time from petition to election in those cases was  double what the time was in all other cases and the board looked at what were the sources of the delay in those cases and the amendments were targeted at those sources of delay and the biggest source of delay the board found was this automatic twenty five days day that existed upright in its prior procedures that provision isn't required by the statute the board looked at it and determined it wasn't serving its function because the whole purpose of the twenty five days do is to give parties an opportunity to seek review or regional director decision they hardly election date the setting of it within the regional directors discretion they're instructed to take into account case by case variables such as the size of the unit to do abruzzi the industry whether or not the employees are familiar with collective bargaining it also explicitly states that regional director should take into account the party's desires which would include their opportunity to campaign and so because we're dealing with a facial challenge here again this amount of discretion effectively precludes a finding that in every set of circumstances  represented that they can't reach an election agreement of opposing counsel indicated that ninety percent reach this agreement there are certain aspects of this rule that infringe on the agreements themselves and i was going to mention that there are now cases in which the regional directors are saying they will not approve an agreement that is more than a couple of weeks to have the election that's the price now of entering into those agreements most of our focus has been on the contested cases where the hearing is a big  the issue that we've been talking about but the board's failure to set a minimum time and giving the regions this unbridled discretion to set a bare minimum and now with elections being held in less than two weeks the total average  of them now would be going down from forty to thirty nine days to twenty five days dramatic drop but that means there are some that are much less and this gets us into this this reno discussion and no set of circumstances and while we have already said there are no set of circumstances that justify the rule on the points that we've been arguing against that that reno standard there's no case in this court and indeed i don't believe there is a case in which reno has been applied and the no set of circumstances test has been applied to a rule that itself has been applied reno it was a rule that had no record there had it had was issued a week before the court issued its decision the rule came out and then the court acted before it had been enforced anywhere well this is a rule that's been going on now for close to a year and week there is that ample public record of the things that are going wrong and the references made to the danbury case and that's such a vivid example of what's wrong with this whole new voter list with all this extra detailed information if we don't reverse the district court what advice are you going to give clients who have to comply with this today in the scenarios i'm talking about where the home email may be known by somebody in management but isn't in the official you know h r database somewhere how's that being handled in this in suing year and how would you advise your client to handle that well it's interesting the comment that was made that it's supposed to be specifically held in some place or other in fact the statements being made by board officials regional directors in the general counsel have been the languages of ale that's the word in the room it's a vailable to the employer and what the regional director say and then very i'm looking at this rule that says available well that's anywhere in your database anywhere in your smen or gers home home i phone or whatever you're supposed to go find it and in this case they said like every you know you go and question everybody who might have knowledge of facts and gather their doc kind of back in our day when you go and you physically gather documents it wasn't good enough to say well it's not the h r file you'd have to go to joe blow and go through his files and all of that you had more than two days but yeah exactly and it's a you know it's arbitrary and capricious is what it is because they did not consider all of the outcomes of what they put down in a very general sense and then they put the statements by those who said we can't do it in two days and plus they have you mentioned ten percent they have a rule that if the excelsior list the voter list is off by ten percent if the addresses are wrong  to mention now the e mail addresses and the phone numbers they can throw out the election for that that is in fact their their benchmark for throwing out an election over what used to just be the home addresses and it's hard enough for employees to get those right now with e mails with phone numbers aside from the invasion of privacy which is our primary complaint about this we certainly complained about the arbitrariness of taking it down to two days with no end having heard many comments in the record that this is impossible to get right and so they're imposing this not to mention the extra burden and i will say one other thing the board cites and they confuse as a citing of case of abuse of these mailing lists they cite no case in which board has found the union did not have enough access to the employees under the current system no  the home address is planning and they get they have access to the employees as they come out of the workplace they have their supporters inside the workplace are communicating and through the solicitation rooms have every right to communicate with their coworkers the unions the union can hold meetings they have all the access they need and now in the age of social media they can point to go on this website and we won't know nobody will know company will know when you can see on youtube you can see videos are great we are twitter and all the rest they have so much ability to get through why do they need to intrude the board said the risk is worth it well ask patricia who is the woman who had her sister who is subjected to having to have all these magazines thousands of dollars because she had the temerity to file the certification petition the unions the comment was made unions don't always behave themselves and sometimes they actually believe civil disobedience is the way to go because they disagreed with the limits that are put on them and they want to make a statement and it's the board has done nothing to protect this vital personal private information it is arbitrary and capricious you need to set it aside and vacated we ask that you do that thank you