thank you ma'am please the court william peterson on bath petitioner p c c structural and there are two main ways for this court to grant the petition for review the st and i think the easiest is recognize that the board's decision is insufficiently explained for this court review and to remain and for a further explanation alternatively if this court accepts the general counsel's explanation for the board's decision then both the community of interest and the craft unit majority's should be reversed because the board failed to apply or address its precedent in these areas and with respect to the craft unit p c c didn't receive notice that certification as a craft unit was at issue let me start with the board's need to give an explanation as this court's well aware as far back as generates unclear that an administrative agencies decision can be affirmed only on the basis for the reasoning set forth in the agency's decision itself analysis of the facts and which we could review i mean there be no doubt if he were had simply denied refused to and we were effectively reviewing the regional directors decision there's enough there for us to look at absolutely or rather to be clear my argument here hinges entirely on the splintered board majority's if two members of the board ha so so we have a fully reasoned lower lower court lower agency decision and then we have the agency on review as a formal matter they deny review they say there is no substantial question then they elaborate by saying that the regional director gave two different rationales and two of them say we agree with one of the rationales in a different two fort member say we agree with the other why isn't all of that in context best understood as two different majorities have adopted each prong of the regional directors analysis will your honor it's because of the form of the regional directors analysis if you look at the regional directors decision here the regional director did with we think it's read best as the regional director and the admitting that to a craft unit that possesses a community of interest i can yeah i understand i understand and he each goes through all of the factors once rather  twice but he uses this formulation a craft unit that shares a sufficient community of interest it's me that could easily be read as saying two different things one is there's a craft unit and the nd is there's a unit that has a sufficient community of interest and when you look at his conclusion at the end of that analysis he actually has but our concern here is given the similarity between the tests we think there's an increased need for explanation by the board if we have two separate board majorities neither majority says we think the regional director got everything right each one says we think the regional director got part of the analysis right and is silent but i think we infer from that that they dissed or are not adopting the rest of the regional directors analysis and as we read the regional directors decision only impossible to understand which portions of that were adopted by which of the two different majorities and we think a particular want one majority adopted the sentences the two s saying the community of interest testis matt because those factors way for a five to three in favor and the other majority adopted the immediately following s which says the craft test is mad because those factors weigh three to nothing or whatever and if we were looking at this and providing explanations on appeal we think that's something the court could do but i think this court can't speculate can't guess as to which portions of the regional directors analysis the board adopted and why this court needs to see that reasoning in the board's decision itself it could be that the community of interest majority simply disagreed with the weighing of the craft you know factors it could be that the community of interest majority disagreed perhaps factually with the consideration of the crafter factors it could be they thought the regional director or by failing to apply more north american aviation we can't tell by looking at the board's decision what the basis was for each of the separate majority's clue sions in a way that we could if two members of the board said we think the regional director got everything right here but your honor let me turn to the application of the tests themselves and the st of course is the community of interest test and i we've talked about this in terms of a failure to apply but i think it's undisputed that boeing was not a sea change in the law of community interest boeing formally announces these three steps as three separate steps but these steps are found in other decisions as well in particular here they were found in the p c c structural is what important and we think it's meaningful because step two is a different perspective step one of the analysis looks at the community of interest among the petition for employees here among the welders who would be included in the marketing step two of the analysis chefs that respect says don't look at the included employees look at the executed employees and ask whether the x clued employees had meaningfully distinct interests in the context of collective bargaining that outweigh their similarities with the included so when you look at the regional directors decision at the board's decision here you see the regional director focusing on the interests of the included employees you don't see findings by the regional director about the interests of the executed employees and here we think there are very strong arguments that the exploited employees do not have meaningfully distinct interests that outweigh their similarities with welders and it's important to these are not simply interests in the abstract but interests in the context of collective bargain so when you look at what the employees might want to bargain over workplace discipline that's employees are paid on the same wage scale and there is an overlap among the wage scale for the welders and the wage scale for the other employees to the extent that there are things that the excluded employees want to bargain over those interests are shared kind of i guess always a factor in this was that was at your client thought that the unit should be all the employees yes your honor that's always been our argument we think there are certainly errors that concluding at step one that the included employees have meaningfully distinct interests and in particular p c c structural one emphasize the need to look at the practical realities of the workplace and that in our view is what's most significant here we have a highly integrated manufacturing process the welders are working together with other employees who we think should be included to produce products there's not a separate welding department there's welders distributed among teams throughout all of the plants and the welders are just one step in manufacturing a final product and the rd step all again also reflected in p c c structural one about any industry guidelines you'll processes what my friends won't tell you is that's not the kind of industry guidelines that the board is talking about but the problem is right or wrong that's an argument that needed to be decided by the regional director and the board in the st instance and this court can't supply the reasoning on appeal that's absent from the boards and the regional directors decision let me turn unless the panel has questions to craft  we think the easiest way of resolving the craft unit is to simply look at the notice given to p c c the board's decision and p c c structural one reinstated the traditional community of interest test it reminded to the regional director for application of the standard articulated here and that's the traditional community ventris test the regional director understood this and made this perfectly clear i ask you to look at joint appendix page one thousand one  director quotes the standard that the board directed that i use to analyze the appropriateness of the unit he quoted that standard as the community of interest test the union agreed with that as well in and in fact that document joint bendix page one thousand one hundred and nineteen says that the board's decision remained to the regional director quote to apply the community of interest test contained in united operations and closing joint appendix page eleven to four the union again acknowledge the community of interest test as the controlling analysis so before the regional director p c c had no notice that it needed to develop evidence or arguments about certification as a craft and then finally with respect to the merits of the craft or even apart from what we see as the due process violation the concern there is the board's failure to address north american aviation leading his melon crop case regarding certification of welders as a craft you know north american aviation ease in our view indistinguishable here there was a highly integrated production process that welders were just one part of and in north maybe there's an aviation court concluded that any separate community of interest possessed by the welders was submerged into the more companies and community of interest shared with the other employees the facts relied on a melon crop for the same as the facts relying on here also note my friend might suggest that the welders in north american aviation were less skill than the welders in hughes aircraft which the recent record relied well north american aviation and actually discussed hughes aircraft and it distinguished use aircraft not expressly not based on the skill of the welders but based on the fact that he was aircraft supplying the outdated american potash test in fact what the decision says there for the purpose of the decision we shall soon there is no material  here and before we get into it just a couple points i know the court understands that the issue before it weather there well there is an appropriate unit not the course when it comes to factual findings like whether this or that factor supported the unit that's just under the substantial evidence to go into the issues that were raised this morning i think that when you look at the two board majority it easy to discern each majority's as was discussed this morning at the very detail decision by the regional director one majority says clearly it's adopting the regional directors community interest analysis that clearly laid out in the regional directors decision another ridge already so it's a doctrine to craft unit analysis that's clearly laid out in the regional directors decision and there is nothing confusing problematic of an agency laying out two alternative independent and sufficient grounds for its decision well it doesn't it doesn't quite say we're adopting the analysis they say matter that test is math don't run it that you know we need to make a little bit of a leap to say that they adopted not simply a bottom line which wouldn't be enough but the reasoning below i understand ira i think it's clear from the context that what they're doing and reviewing the regional directors decision and saying we agree that this is an appropriate unit in the community of interest is for the reasons stated by the regional director and it's well supported on the merits for example on the community of interest factor the regional there are factors either way i think like you said it may go five to three or however you want to split the eight factors but the regional director went through all of them and explained that yes we have some factors like supervision and department will structure and functional integration that could weigh against this particular unit but we also have a lot of factors that make these welder's distinct their separate function they're the only ones who do their function of welding on the product itself they're the only ones who have the training and certification which can take significant a significant amount of time to get in recertify and because other employees don't have the training they can even temporarily do well at work it's undisputed in this case that the non welders that my opponent would include can't do the welding work and i needn't  labor every factor i know they're laid out in the decision you're reviewing but on balance looking at all the factors it was reasonable for the regional director to find and for that work majority to adopt the finding that this is an appropriate unit under community of interest factors and as to my opponent's point that the two tests were him out amalgamated improperly by the readable director i don't think that's true and it goes back to something your honor said this morning st the regional director properly laid out the two tests separately acknowledged consistent with precedent the a craft analysis and a case like this incorporate some community of interest factors and after that where necessary where the craft analysis required analysis of an additional factor he did that very clearly in eight he said in the topic sentence turning to the crap analysis i find for example that although there isn't a formal apprenticeship program there is extensive training is only assigns to the unit welders because only they are qualified and certified to do it so again as to the cracked analysis you have a reasonable well supported finding that goes through all the factors and which a board majority  not without a mine your honor i'm happy to answer any other questions the court will have i would just point out onto process that i think the record clear that this isn't a case where the party was given no notice whatsoever that this related craft unit issue was at play the parties indicated their knowledge of and actually litigated that issue was the record shows even prior to the  of litigating the crack unit issue further i think on balance my opponent had notice in a fair opportunity to be heard explained in a brace of the cases they cited were noticed was denied or what i call no notice at all cases there where towards the end of the hearing the party was blindsided as the court put it but an issue they didn't see coming and they didn't have a fair chance to respond i think when you look at all the facts here due process with satisfied notice  an opportunity to litigate was satisfied and again you're honest i'm happy to answer any questions you may have just the board have any difficulty with the regional directors analysis to the extent it tended to merge the tasks and i'm sort of struck as far there are no different legal consequences depending on whether we call this a craft unit or some other kind of unit and the respective tests seem to have a huge degree of overlap and the craft unit test just seems to be seems to use community of interest concepts as applied to workers who have some specialized skill but i mean what are we fighting over here i mean the two  tests what you say is true and what we're fighting over maybe a question for my opponent they feel the test were partly amalgamated what you just said frankly i think shows they were not is just president holds there's a lot of overlap in the test in the no construction industry and as i noted before the regional director did make that clear properly laid out both tests indicated under precedent where the craft unit adopts community of interest analysis and where there is a craft unit suitable for bargaining and has sufficiently distinct interest under community of interest principles he's shown or against i guess the reason i'm asking you is i find that you opponent's due process argument is somewhat compelling in that the you know the other test is coming up relatively late in the process except to the extent that the tests strike me as very similar and i want to make sure you don't you don't have any problem with that premise that's how i'm thinking about it if the test to do overlap and under these facts a choice of test may not be a come to terminate it because it's a proper unity their way if i may correct one statement or clarify one thing it did or to make sure i understood your honor i don't think the notic my opponent does split hairs a little bit here there's a quote in the union's brief at that time that the unit here is akin to a craft unit because of their distinct licensing and experience and certification requirements and the argument is  craft isn't the same as arguing craft i don't know about that and i think it shows notice that the issue in my opponent responded back then before p c c won by arguing the same case north american aviation that there are given out for craft ers so i think the bell of notice was wrong back then very early in the process and i just wanted to be fair to the record thank you for it all right thank you any further question  two minutes on rebuttal thank you your honor let me start with the notice question the we believe there is a world of difference between arguing that they are a community of interest that is  akin to a craft unit versus actually seeking certification of the unit as a craft unit when this court looks at the parties briefing prior to p c c structural one you will not see the unit seeking certification as a craft unit you will not see c responding by arguing the craft you know factors don't walk me through why but different tests with the selection of a test makes such a big difference because i mean just sketching this out there are five factors for craft unit and there's a general statement that in in non construction craft unit cases you look to all the community of interest factors anyway and when you look at the five craft unit factors or as i can tell three of them have complete overlap with the eight other factors and one is has only a slight variation training versus training in an apprenticeship program and the the only one that seems somewhat different is whether work is assigned on jurisdictional lines or not which is not hugely different from the question of what work they're doing but in any event i bet you see where i'm going it's just as a non expert it seems to me like this is a lot of fighting about relatively minor verbal formulations of the same basic concept your honor i think you're right and i will tell you that is why the board's decision is so strange shifting from a to a prime well i think that's right i will tell you what we know absolutely from the board's decision in p c c structural stu is that the majority of the board viewed the tests separately and believed that the difference in the tests matter it might be one thing if two members of the board said we agree with that again i don't have a great explanation for why the board majority has reached different decisions i don't think my friend has a great explanation and that's why the board's failure to explain what it sees as the difference between these tests is so significant but then they seem to say in p c she three that there's no big difference what we were arguing i think the board  i'm not going to say i misunderstood her argument but we weren't arguing that there is inconsistency between the outcomes we weren't saying there's i mean there's something impossible about two judges finding it satisfies craft unit to finding it satisfies  but what we were saying is we don't know why and that in my mind is the heart of the problem the board is not always been perfectly clear about the relationship of these tests one can certainly imagine a world in which he was always looking at a community event st and simply looking at these craft factors as additions i think that be perfectly sensible and rational when you look at the more it's precedent you just don't see that and that's why here we think that we're going to have to majorities one says yes to craft and one says yes to community it's really necessary to give us the explanation of why they matter and you're right if i can make just one more point for sitting down i'd like to point out what you didn't hear from my friend about the application of the community of interest test what he didn't do was point you to a finding about what boeing calls step t an examination of the interests of the excluded employees and what he didn't do was point you to a finding or analysis by the regional director of the or the board a boeing step three the industry guidelines and i am just to go back to judge katz this is questioning is there a difference in the rights of the union or the employer if the unit is certified as a craft unit instead of as a unit under the community of interest yes no your honor there is no difference ok all right anything else judge kat