merit granting the petition for review in this case the st was the board's failure to consider significantly similar precedent concerning when kitchen managers constitute to eleven supervisors under the national labor relations act terra neha raised this precedent in its exceptions to the board and the board did not address it at all under this court's decisions including  precedence over the years the board has had occasion to consider when kitchen managers constitute to eleven supervisors on numerous occasions a most notably in the piccadilly cafeterias case the board the board determined that an assistant chef and a relief chef constituted two hundred and eleven dollars supervisors despite the fact that they did not prepare their recipes they had no input over the menus and they had no input over work schedules where those cooks directed their subordinate cooks for a substantial portion of their shifts even though the head chef frequently exercised overall supervision the board made that decision because it concluded that the preparation timing and presentation of dishes and ensuring that those were prepared correctly and appealingly required the exercise of independent judgment each of those considerations applies equally to the case of bar  in charge of the kitchen frequently generally from eight to one thousand and thirty during that time he had authority to direct the chefs who worked under his supervision and there's no dispute in this case that lotto had the authority to direct those clocks and as well he also had responsibilities reorganizing the kitchen dismissing employees when the work load was insufficient training and ensuring that the line was prepared under this court's decisions in roscoe tog in the morning when a party raises precedent to the board and that precedent is significantly similar to the case that bar the board is required to discuss it and explain why it's reached a different decision of the board did not do so at all in this case granting the petition in response to this argument the board's primary position was that a piccadilly cafeterias was outdated in light of the n l r b use subsequent  decisions in oakwood in the supreme court's decision in kentucky river but that raises a a chattery problem if the board believes that piccadilly high in your hotel and the other cases that the employer cited are no longer good law or that they should be afforded less weight it should be the board making that explanation not the general counsel and litigation second and apart from the board's failure to consider whether mr limbaugh to consider the piccadilly case and the other applicable precedent about kitchen managers its decision that mr lovato was in office t eleven supervisor is unsupported by substantial evidence there are three elements that the employer needs to meet in a case like this to show that an employee is a two hundred and eleven supervisor the st is that he has the authority to drek subordinate employees the nd is that he exercises independent judgment and the rd is that he may be held accountable for his supervision in this case there is repaired in a timely manner and that if they were incorrect they were redone he often acted as an expedited or directing the kitchen in that way he trained unmonitored inserts in terms and reorganize the li e the nd consideration is independent judgment and on this crowned the board erred because it sound of that mr lovato did not exercise independent judgment because he did not make the menu he did not write the recipes but in piccadilly which i had discussed earlier that wasn't what the board considered relevant for independent judgment what the board consider relevant for independent judgment was whether the kitchen manager ensured that the dishes were prepared in a timely appealing and proper manner and that's what mr a lot of the rd prong is the accountability problem which  that the employer prove that there is a prospect of adverse consequences for a supervisors failure to supervise and on this is a classic substantial evidence problem where the junior sous chef on leadership in may of two thousand and eighteen and within a few months of the alleged us make a pause i want to think a little bit more about this generate problem we are talking about so in oakwood the board say that it was a stab all issuing a definition for the st time with respect to responsible direction and didn't say that with respect independent judgment and it's a was changing the definition in response to kentucky river and in brosco didn't we say that pre ope would cases therefore had limited presidential value i'll take all three of those in turn on the question of responsible direction it is fair to say that the board established a new precedent and we for the reasons described earlier that we met it and we also got we are doesn't that mean that the prior with respect to the prior cases they are not they're a limited presidential value and there's no reason for the board to have to say that again is there but i think there is a reason at least under the facts of this case because there is also the question of what the independent judgment that the crew that the board should be considering was and this gets to the question of independent judgment in kentucky river an open wood what happened was the supreme to be because of the board's categorical carve out of ordinary professional and technical judgment so you essentially had too many type two errors in piccadilly there was a finding that the employees were statutory supervisors so as to independent judgment that air did not in fact and could not have infected the piccadilly decision and on the question of what independent judgment means or a kitchen manager whether it means to you write the menu or whether it means to you make sure that dishes are prepared tropper really appealing cleon in a timely manner piccadilly is on all fours and needed to be considered sir turning to brosco tugh i believe what the board or what this court excuse me actually said in that case was that the board considered its free oakwood decisions and that it found there that they were of limited precedential value with an explanation and if that is going to be the outcome in this case it's something that the board needs to consider on its own it's not something that the general counsel ought to be raising in litigation because the board have to say it again and again or isn't enough to say once i think the board does need to say it if there is a significant showing and that's the test from the morning owen that a tree oh would decision has application to this case and again i don't think that we would need to we want to argue for a categorical rule that any time a party found an arguably applicable creo would precedent that the board has to go and explain yet again no would change the law but where there's an aspect of a tree oakwood precedent that does appear to be on point as piccadilly is on independent judgment and the party raises it for board then i think the one tree oakwood decision of the board as correctly stating its position so it's not as if oakwood swept away everything that existed before it and that gets me also to the responsibility to direct prong which you mentioned the record evidence is ample that mr lovato had responsibility to direct i mentioned the two performance guess i guess you've made it in your reply brief in response to the the government's own sort of lords brief that there is a chinnery problem here if we accept the the well we didn't need to say anything about those decisions because kentucky river and oak wood were correctly straight the law and these were creo quick decisions and in response to that in our reply brief we said no that's a channel re problem if the board believes that piccadilly no longer accurately states the law or has less precedential value than it used to that needs to be the board that says you know so it's not like the board's decision in this case said no piccadilly is not good law because of oakwood the board never said that word never even mentioned piccadilly so i think it's pretty typical in that respect to raise the reply i see ok i understand and and given responsibility to direct in may th seen within a few months and in the same month of one of the allegedly retaliatory disciplinary incidents mr levada was put on a performance improvement plan in part due to his lack of leadership and in july of two thousand and eighteen he was counseled and team in any sort of fashion quote after explaining my expectations which included mr limbaugh to take the lead in the station he works the system organizing the team and assisting guiding the in terms of this is substantial evidence in support of a finding that there was a prospect of adverse consequences to mr lovato as a result of his failure to supervise and rattle evidence of actual indicates that the witnesses were unable to provide on the stand any examples of junior sous chefs being disciplined for failing to show leadership but i don't know show i'm not sure what showing leadership means that what i'm asking is although that's yet another point i'm actually showing being held responsible for what somebody else does the witnesses were unable to identify a there are nine kitchens in the resort and so at least nine sous chefs is that right that's right one sous chef a kitchen and the absence of any time in history for any of those nine or any of their predecessors or successors to ever being held responsible that's not evidence of absence not unless it was accompanied by evidence that there was another sushi chef who displayed chaps and i'm sorry i'm having a question about the continuing failed failure to supervise you use the word leadership as it's a failure to supervise and in the forms you're talking about and does it say give an example of a failure to supervise well i would note if i turn to the disciplinary or not disciplinary counseling them a warning of disciplinary consequences from un j a three ninety seven dollars it says mr lovato is lacking any kind of initiative to guide the team in any sort of fashion it also says we ended the conversation with the hopes that mr lovato will be able to provide leadership guidance end quote unquote supervision to our team at the capacity of a junior sous chef but does it hold him accountable for anything that somebody on the team did it did or didn't do that there was no circumstance like that was there well there was the macaroni and cheese incident and i want to turn to that briefly i understand that the board found that the discipline was retaliatory however i don't understand the n l r b to be arguing that there are no discipline was appropriate for mr lovano when he failed to supervise mr flamenco in preparing what was supposed to be gluten free macaroni and cheese and instead sending a macro he and she is with the group containing flour to sicken a child that would be as i said not correct that a week earlier no one had been disciplined for serving a gluten containing pizza that sentence nd child to this hospital that is correct but i don't think that the instances are sufficiently similar and let me tell you why the what is called the other parties the pizza incident in may th twenty eight team was the st in the record food our she incident terrenate and as a result of that a new procedures an emphasis on food allergies were adopted including ms guerrero in the in room dining kitchen who was the chef de cuisine going over the standard operating procedures for food allergies of the beginning of every shift then six days later and eighteen you had the macaroni and cheese incident when they got the macaroni and cheese that was supposed to be gluten free went out of the kitchen while mr levada was in charge and there's no dispute that he was in charge when that just went out given the close proximity and i would also direct the court to the e mails from that investigation which are a choice appendix three hundred and eighty eight thousand three let the macaroni and cheese go out you know and the chef or the cook i'm sorry who prepared it mr flamenco was given a written warning and a mr levada was given a final written warning that the company has argued because he was the supervisor and that it made sense to put the onus on him particularly in light of a similar incident in some respects in close proximity time i understand the arguing that the level of discipline mr limbaugh to receive was retaliatory and i believe the board did find that and that's what one of the things is being reviewed today but i don't think that the n l r b has or can argue that it didn't mean to interrupt just hit that one down ok well i think that goes to the procedure of this case i don't understand the n l r b to be arguing that perhaps mr hicks and will disagree with me that it was inappropriate to discipline mr a lot o for the macaroni and cheese incident in some respect or to discipline him for the fried chicken incident in another respect in some respect i understand the n l r b to be arguing that the ultimate terminations was unlawful and that the reason that he was discharged after the fried chicken incident was because there was a final written warning in the macaroni and cheese incident and so if that final written warning in the max and runny and cheese incident was non retaliatory as we contend that mary would allow terminations you make this point what will we do i believe this is made at the very end of the brief  on the record supports the board's determinations that the company excuse me that the company failed to prove mr about a supervisory status and that it unlawful a disciplined and discharge him because of his prominence and extensive protect activities this court has consistently recognized the board findings regarding both supervisory status and unlawful motives are entitled to special deference beyond the already high level of deference that substantial evidence review mand and here the record amply supports the board's findings on both questions and the court should therefore grant in force an the discussion so far today it seems has focused on the two hundred and eleven supervisory status issue so i guess i'll plan to address that st oh straight to the question about cherry and the board d not expressly addressed in piccadilly cafeterias and some other cases in its decision i think that the law of this court is clear that when be basis for distinguishing a case is readily apparent that it is not necessary that the board expressly address that case in its decision and as we set forth in our brief the previous oakwood pretty kentucky river cases that the company relies upon are readily it is readily apparent that there distinction now they're not applicable here and would be of only the most limited presidential value because they perceive the supreme court's decision in kentucky river and the board's subsequent decision in oakwood and there as was discussed between judge garland and my colleague the supreme court and the board made very significant holdings and the board guided by the supreme court's determination with respect to independent judgment revised substantially revised and change the standard as the independent judgment so these create oakwood cases don't do not apply that controlling the gold standard that my opponent agrees is the controlling standard we know that because not only does it people like epicurious for example not only those that case precede both oakwood and kentucky river that case actually sets forth no standard of independent judgment there is nowhere in that decision where any independent judgment standard is identified and there is frankly no independent judgment analysis to speak of in that case the judge seems to have simply assumed that these  assistantships responsibilities would require independent judgment but without explaining why without setting forth any legal standard that case also fails to recognize as do all of the cases that our opponent cites it fails to recognize that the party is starting supervisory status bears the burden of proof a point that the supreme court upheld in kentucky river and that sense kentucky over the board has been very consistent in emphasizing and furthermore nothing in that decision piccadilly cafeterias or any of the other decisions contain anything in the way of specific examples as this court has said for example in a vista court a post of which case what the statute requires is evidence of actual supervisory authority visibly translate it into tangible examples demonstrate the existence of supervisory authority and the court emphasizes this again for example  terminals it talks about how there must be specific examples in the record is pretty open cases pretty techie river pretty oakwood cases that the company cites contain no such discussion of any examples so there is no cherry problem there decisions are of limited value so there is no need for the board to address them here i would just point out that in brusque oh yes the court address cases there but st as judge garland raised the question how many times does the board have to do that over judgment and also prove that he was failed to prove that he was accountable for other kitchen workers for performance with respect to independent judgment you know i think the company presents the menus and the recipes as if the board d made a finding that mr nevada had to exercise some kind of artistic creativity or something but that's not why the board found the evidence important it found the evidence important because as the supreme court itself employer then that does not show independent judgment and that's what happened in this case mystery barra for example testified that the menus and recipes were very comprehensive pharaoh finely tune and highly precise standards and instructions and mr levada did not have discretion to deviate from this instruction so in that respect the company throughout the show it kind of judgment i did want to address one factual point that was mentioned by my coll vast majority of the time he was simply a member of the line cooking at his station alongside the other cooks on the line and he was responsible at all times for performing well for preparing i should say the issues that came in on the tickets that were to be prepared at his station so i would just emphasize to that of course both independent judgment and responsibility or accountability under the statute these are both mandatory requirements so if the court affirms the board on one of them the court must uphold the board's supervisory determination we of course maintain that substantial evidence supports the board's findings both on accountability and independent judgment but i just want to emphasize that point with respect to the evidence that the company puts forth on accountability it claims that mystery about who was subject to eventual discipline based on other cook performance but the it's undisputed that apart from the macaroni and cheese incident which is deficient evidentiary only for its own reasons that that the company had never before it history of any of its more than nine kitchens issued any level of discipline even the lowest possible level d of discipline to any of its juniors to chefs based on another cook's performance or a failure to correct and that are cooks mistake and more generally the only about actual discipline and whether there is any evidence of it there is none except for the macaroni and cheese incident which i can address if your arms were like but my colleague said that it was that merely that the witnesses on the stand could not on the spot recall an instance but it's it's much broader than that your honour's it's that the company walked into into the hearing knowing that it was going to assert this defense and that it is it burden to prove this defense that mr about a was a statutory supervisor under section two hundred and eleven dollars so it's not as if the witness said is we're caught off guard and it's not as if the companies showed up to the hearing not knowing that dollars supervisory status was going to be an issue it came to the hearing knowing that it was going to put on this defense that it was its burden to prove the defense and it came up with nothing in the way of actual discipline again aside from the macaroni and cheese and so it's not just the witnesses on the stand it's the company's overall failure to meet its burden with respect to the macaroni and cheese and said and it's deficient number one because it was discriminator motivated i mean you can't prove a putative supervisors to eleven status you can't meet that burden and reliance on discriminatorily motivated adversary action that's the st reason and in any event even setting that reason to decide the evidence is too conclusory to satisfy the company's burden because it is undisputed that one of the decision makers in this kwok she participated in the collective decision to issue discipline against mr about it and she understood that mr amano had directly worked on the dish not just that he had been present in the kitchen and fail to catch someone else's error but he had actually put his hands on that  and she understood that was part of the basis for the discipline she was one of the three managers who made the collective decision that some discipline would be issued and she was the person who drafted the disciplinary notice so in those circumstances the evidence is that were addressed by the th circuit and frenchtown and by the board in going to crest health care mere negative comments appearing on a performance of i think rationed are not enough to show more than a speculative risk of material adverse consequences i mean in french town the evaluations of the nurses in that case talked about used language about leadership and about quote supervision and golden crest the evaluations address by the board evaluated nurses on how way at how well they directed c n a and the board and the court respectively in those cases found that those critical comments or comments about areas to improve performance were not enough to show non speculative and real risks and it's true that it need not only be a material a prospect but a profit a prospect of material adverse consequences but the company must prove that prospect and must prove that it's real not speculative and not simply hypothetical excuse me with respect so i said i'm sorry just so i get this for j a site that you are that opposing counsel raise a free ninety seven is that what you're talking about or is it something else that's the memo to file about start by saying i'm writing this not as a disciplinary notice but to clarify some concerns from the discusses leadership is that what you're talking about is something else no i wasn't specifically talking about that your honor or the response is somewhat similar i was talking about the assessments in on that the board recently found that the evidence was just to behave and inconclusive to establish that mr love audio one was being disciplined for his own performance as opposed to  an error made by another kitchen employee if that's what that's what the statute requires as this court has recognized for example in the allied aviation case it has to be that putative supervise he's error for which  laval and otherwise the memo out both the memo and this career as she was questioned on the stand by counsel had the opportunity to really flesh out what happened on this night with this quote disorganized evening service and she just failed to do so she failed to provide the kind of specific detailed evidence that the board and the courts require it order to in order to show accountability under that if it seems like it goes a little bit beyond his own performance and it  played a role ready as lacking any kind of initiative to guide the team in any sort of fashion it does say that your honor but i would submit respectfully that it's just very vague in terms of what that really and what happened that night and you know it's the company's burden to show by specific and detailed evidence that's what the board and this court require and you know perhaps that perhaps that could have been flushed out by m the stand instead when she was questioned testified she failed to do so and so it's both inadequate in terms of establishing that it's his performance versus the performance of others it's also inadequate in terms of establishing  actual risk an actual list of non speculative threats of adverse consequences in that it's a can't you that educational in services that were given to the nurses in french town mystery or mr barr characterize the conversation  as just a coaching or counseling for mr obama to learn and so it's you can see the evidence in that case which the court helped insufficient i i do see them over my time your honors and i'm very happy to answer it all questions the court may have for me i don't want hour breezed brief page fifty eight dollars note ten which discusses the party's shared understanding of the relative roles of the macaroni and cheese and the fried chicken incidents nd i want to clarify that i address briefly the responsible authority the n l r b has made much of the inability of the witnesses to come up with an example of similar discipline a but what that really does is attempt to restrict the evidence you can be used to true responsible to direct the folks who discipline in the tyranny kitchens are cooks they make food they're not lawyers they don't make paper but they