let's let's begin go ahead sir thank you your honor may please the court my name is michael can you only on behalf of atlantic city electric company the board's ruling that system operators aren't supervisors lack of substantial evidence and conflicts with its ruling just last year in entergy three there the board ruled that another group of electrical control room workers were supervisors because of four of their functions addressing problems in their company's electrical system st they determined which outages were priorities nd they determined when to redirect field employees from one outage to another rd they determined how many field employees to send to an outage and th they determined when it was necessary to call in additional field employees mr connelly before we start distinguishing energy three with facts or and starts to act on one of the issues it's raised is this issue of the standard of proof and whether or not and i'd like you to clarify whether the board and or the regional director feel to apply  to the regional directors admission of evidence said we quoted from the regional directors own decision where the regional director sets out background evidentiary principles starting with the idea that supervisory status needs to it will not find supervisory status where the evidence is in conflict or otherwise inconclusive and so we quoted that full discussion and said that that discussion was him unduly restrictive and that it was  from the standard for preserving an issue in the district court in the n r a the court's jurisdiction is actually limited if the issue is not is the if the objection is not raised to the board and so there's no ruled that it a single sentence in a footnote asking the court sorry objecting to the board's standard largely for the reasons articulated in a dissent that was sufficient to preserve the issue for this court's review so i think we did well more of in that here not only did we object if the standard serve at the evidentiary principles were inconsistent with the act but we also cross referenced chairman marine and in related cases where he repeatedly failed because the board for this i would also argue however that this issue is in some ways academic this issue preservation issue because there's no doubt that this court has the authority and responsibility to review our argument that there's a lack of substantial evidence for the board's conclusions in this case i don't think anyone disputes that and much is in the allentown mack case the supreme court case on which we principally rely for this clear and convincing evidence objection there the supreme court st ruled that there was a lack of substantial evidence and only then did it go on to the broader question of whether the lack of substantial evidence finding in that case was indicative of a larger problem in the board's jurisprudence in so repetitiously increasing the standard of review and so we would submit you could do the same thing here you don't need to reach the question of whether a lack of or sorry the evidence the requirement that evidence not be in conflict or that the evidence be clear is permissible in order to rule that the board is not allowed to disregard evidence  noticing more discerning conflict there in which what determines balance well if the board had actually held that some of the evidence was more persuasive than other evidence that might be a fair question but here the board didn't say that the evidence presented by the employer was unpersuasive or not credible it simply noted that it was in some tension in the board's view with some of the testimony that one of the d drying making credibility determinations is justified only if it actually makes the credibility determination it's not enough to simply find that some of the evidence points one way instead of the evidence points the other way and we would send it to be conflict is not actually that significant but i'm sorry i didn't but that's ok so you agree that the standard of proof on to invoke an exemption is on the employer here and it's got to be established by preponderance of the evidence do you agree that that's the therefore the preponderance hasn't been met isn't that it that's what happened in the context of conflicts that were on resolved in this case no i don't think so your honor i don't think i think i would distinguish between finding conflicting str evidence and finding the evidence in ecuador is because i don't think that those two things are the same act here i think the the key error that the board made on its in its footnote on ruling on review was in saying that the evidence was in conflict over whether system operators could command dispatchers or field supervisors principally to dispatch employees to a particular site because let me argue with you that f can draw back conclusion based on what the the board gave you here because the regional director held to the contrary that field supervisors can direct sr i'm sorry at that system operators can direct field supervisors to dispatch findings were adopted by the board majority in full and so whatever reason the decision making in substantial evidence mean they can't mean that the board can say something both happened in did not happen or that there was insufficient evidence that it happened at the same time but under certain asserted the findings by the regional director said certain points there's a conflict in others it ringback is determination that the evidence it sits and accepted to ponder it in favor of a conclusion for example that a lot of findings that are inconsistent with that conclusion and did not find that the evidence was in conflict on those points so for instance the idea and these are the four points that i started with the regional director didn't dispute in fact it found that system operators can determine when it is necessary to dispatch a field crew to a location for repairs that's appendix thirty one dollars the regional director found that system operators make priority decisions which can mean dispatching field employees from a small outage to a large can direct field supervisors to dispatch a crew if one is needed those are the same four points that the board found were indicative of supervisory authority in entergy three you don't do what you what you say sounds like matters  her g i think turned on assignment and that's what i was referring to as well and one of those types of assignment authority is assignment to a place and the board treats that as a different type of assignment authority from assigning to significant overall duties and this that to be supervising yes your honor and that was but the board held in entergy three quite quite quite explicitly and it's consistent as well with oakwood health care i think both counsel and the i b e w suggests that temporarily assigning an employee to a particular location is not sufficiently long term to count qualify as supervisory assignment but in oakwood health care one of the groups of supervisors of a purported supervisors there the emergency room charge nurses just made decisions to send particular nurses on a given shift to a particular place in the emergency room and that in there the board held that that was assignment now for those employees it found a lack of independent judgment but here i think if you agree with us that assigning directing and dispatching crews to one location rather than another qualifies as assignment to a place then i think  that the record is quite clear that doing making those kinds of judgments in multiple outage situations require independent judgment and not merely routine or clerical sorts of decision making you know you are dispatching which reminded me that and i think that that is consistent i mean i think that makes sense because if we treat assigning an employee as a separate function from responsibly directing and i think we have to do that given the language of section and eleven of the statute then the they have to mean different things and i think given the board's distinction between assignment to a place assignment to a time and assignment to significant overall duties you know simon to a place is naturally understood as making a decision that determines where a group of workers will perform their job duties in on a given day and actually it is on the record is is such that he decision of where work needs to be performed little more and nuanced than that your honor because several of the witnesses testified including the union's own witness jim leach jani he testified that sometimes he does tell field employees to go to a particular location let me ask you a different question accept your representation on that as time is short as i understand it the union currently represents as part of its bargaining unit the dispatchers and the controller if they're if they're not supervisors then how could the system's operators supervisors well i think i think they're the the answer your honor is that the system operators have a much broader responsibility in terms of making decisions that are about how the entire grid for the company is affected by a particular decision and there was much testimony on this point and so they exercise a great deal more judgment and they are also the highest ranking employee in the control room they outrank the dispatcher's no one disputes that and for about two thirds of the entire work week because this is around the clock work they don't have any more anyone more senior than them supervising them and because they only have the required in order to make these large scale determinations i'd be correct but i'd be correct in seeing system operators should workers to the field to specific locations to do work but they don't tell those they do provide instruction as well and i think the clearest example of this is in the switching instructions that they provide to tell field workers the order in which they need to perform specific tasks to make sure that they do those things safely and so i think that i briefly addressing entergy and explaining why that case doesn't have much relation to this case and here's why in entergy it was undisputed that the what the dispatchers in that case  doing was considered assignment in other words the board initially and entergy in the very st entergy one case noted this is assignment sending people to places the union doesn't dispute this when it went up to the  ppeal to the th circuit the question was whether they whether they exercised independent judgment in making those assignments and so was the man and an edge or g three when the board considering all these factors about they consider how many employees need to report to this location they consider what type of interest those were not going into the factor of whether they had assignment authority in the st place that was undisputed the board said they undisputedly had that authority the question was whether that meant that they exercised independent judgment in that it or in using that authority now here we have a different situation system operators here and i think this  questioning they do not assign specific employees to go to specific places what they do is when there is an unexpected outage not claim to have been an unexpected outage they can call the field supervisor and say this is our next priority for where work needs to be done and asked the field supervisor to dispatch are true to that priority the field supervisor determines when to dispatch a crew to that place which crew in which particular employees to dispatch and that's what the board found here was not sufficient for assignment authority on the system operators part that there's this intervening supervisor doing the actual assignment and i ask you about the you question your accuracy assume for the purposes question it was preserved and assumed that you understood what was preserved is whether or not the n l r b and the regional director applied the preponderance of the evidence once it describes the evidence as at best conflicting does any of that know and if not why not an application of a clearly clear and convincing standard as compared to the proponents your honor and st of all no simply using the word clear isn't enough to convert this to a clear and convincing evidence indeed a court to consistently and supervisor cases we point out a few of the situations that are brief said the evidence is unclear therefore we uphold the board's decision when again this is always been a preponderance of the evidence standard so simply using that word doesn't actually make this a different standard of proof nd there's it's also worth separate a separating out two concepts here the burden of proof in the standard of proof required is one concept but on the other hand there's also the actually working with the putative supervisors directly rather than generalized management testimony and the board applied back here and that has been accepted by many courts including this one and so acute with no question about how that would detract from the and say that how do you know that's the standard of proof being applied here well i mean again i think you said your honor when you said the regional director applied that but even looking at the decision itself here the board has a requirement of specific examples being shown if the evidence is conflicting otherwise in other words you have two parties who are one of them sends a management representative up there and says ok these employ these employees definitely have the authority to require field supervisors to send a particularly person to a particular place another employee testifying for the union comes up and says no i don't i don't have that authority i can ask that's all i can do the board's way of resolving that is to require that the party with the burden of proof provide a specific example of the type of that that has happened and that's what the regional director was noting here has never happened we don't have any specific examples in the record at all of a time when  system operator told a particularly employee you must report to this location at this time that is never happens there's no example of it and so if you think that by that this requirement of a specific example the evidence then becomes more likely than not otherwise it's equal yes your honor the board will find generally if there is a if there's generalized testimony that's conflicting the board will generally rip's result that against the party with the burden of proof and say those are equal but if there is a specific example and  that precisely what they do system mockery to send their crews to know your honour's that's the that's the job of the dispatchers and sometimes the field supervisors the system operators determine the need for a crew in the st place so they determine  this is an outage for unexpected outages outages again when there's planned work there's other entities that have some say that but for an unexpected outage if a system operator can't deal with it by switching the load themselves automated in the control room then they talk to the dispatcher or to the field supervisor and request that a crew be sent to that location they don't always return the system operator itself it does not send  cannot and there's also as the regional director found they can't require that a crew be held over for overtime or something like that that's all the field supervisors duty they can say you know we need somebody to keep doing this work it needs to be done today but the field supervisor is the one who decides whether to send out a new crew or whether to hold over a crew for overtime or something along those lines in the system not parade or direct the employees to drink only to cut electricity from one morning to  now so sort of your honor there is i believe this or concealing touched on this in his argument but system operators generally they'll say this is the job that needs to be done and as in terms of setting priorities when it comes to the granular level of telling an employee to do an individual task the system operators ahead of time write outs witching instructions that they copy from a substation manual ok the substation manual sets out what pieces of equipment  during a particularly substation in the order that they have to be disconnected in order to see electrify a particular piece of equipment there and that's called their permit again tagging process when system operators write that out and so it doesn't like super well except that so far that part of their duties your honor all the system operators do is they copy it from the manual and they write the steps they then send that to the field person but they don't know who's going to be doing it so they're not supervising the particularly tasks that they're happening they're not determinate how the field person does their job or even they don't really have any control over who is doing it that's they find out when the person calls them to say ok are these the correct switching instructions and the board found that you know we don't deny that that could be supervisory if they were accountable for that under the responsible direction standard but there are two issues with that one is that it doesn't involve independent judgment as the board found because all they're doing is switching the steps from the manual and they don't have any authority to change the order of the steps or anything like that in other words if in a substation there's several different ways you could isolate a particularly piece of equipment the system operator will write the same exact instructions to the same exact order every time and that's what's expected of them they're not expected to say ok in my judgment i think you can skip that step this time they don't do that but you gave us  times there may be special circumstances that may make it desirable or even necessary to deviate from these guidelines of the system operators direction it's a r four hundred and ninety four dollars their effort if that's the case does that undercut your argument that they judgment your honor those chip guidelines so there are two sets of guidelines that we're talking about here one is the set of guidelines that determines how a system operator switches the load ok so how they determine where electricity is going in the system and for those guidelines we don't deny that they can deviate from those and that there's testimony in the record that they can but when writing piece particularly switching instructions for a particularly thing that's that that's all in a operators might quote take a hit close quote if field employees under their purview do not commit more than twenty five dollars errors in the fields and i'm wondering who should we read that to support the there's record evidence that with the i think the part that was missing that you added there is the under their purview that wasn't testified to is if there are twenty five sealed employees there's no indication if these are field employees who were carrying out switching instructions that de particularly system operator being evaluated had given in other words this is an overall performance standard for the whole unit and these evaluations affect system operators in some way collectively it's not about particularly employees who are there's no evidence that there's a particular employee's action would affect the system operators but and keep in mind that plays into that this is the same evaluation form use for both dispatchers who are not supervisors and system operators it's again it's a generalized ok these are what the company considers in terms of the units performance as a whole but then nd if you look at the forms themselves the book there has been no example of a particularly system operator taking that kind of care that was generalized testimony but if you look at the examples there's a spot on the form that says a field tagging evers or something like  that but it's not checked off or discussed in either of the actual examples of these performance evaluations that are in the record so the r d recently found looking at that ok i don't actually have any proof here that these that this affect know your honor and so under the board law independent judgment has to be exercised in regard to one of the twelve supervisory functions in order to render a supervisor and a supervisor under the statute so it may be true that system operators have a lot of discretion in their job although it may be true that they have a lot of discretion in determining what to say don't go vote and cut off some customers made in a in order to preserve the integrity of the system but that's that's the same as in say and start of the court noted that punitive supervisors there had the ability to do that they could cut off a lot of customers and it was their sole discretion to do that but that didn't mean they supervise other employees because it wasn't they didn't have that discretion in responsibly directing or into signing other employees and so that was the board's finding here it's not that the system operators don't wield any discretion or that the work they do doesn't involve a lot of important decisions it's just that those decisions don't involve actually supervising other employees yes thank you your honors and good afternoon may it please the court the points i wanted to make and i'll be brief because i know my time is limited just a couple and what i wanted to have to stress is that the region twice held the systems operators and senior systems operator not supervisors i remind the court that there was the hearing the regional director made his decision the election was lost your honour's have noted that whenever there's evidence that's in conflict or inconclusive the board will find the supervisor status has not been established because the preponderance has not been met and i would just remind the court that it was after clear to the point that there was supervisory status and a rule that these individuals were not going to get in a supervisor for purposes of the act rather than when the nd petition was filed rather than going back and cleaning up that evidence rather than introducing additional evidence to clarify the suppose it's supervisory status of these individuals the employer and the parties opted to stick to that decision and in the acting regional director subsequently once again approving the decision and then it went down to the board and the poor also confirmed that decision and what that suggests is that their record evidence that you have is privy to that testimony and making those factual determination and an employer relies very heavily on the entergy matters and yet the entergy courts themselves noted that this is a very fact sensitive question there is no category categorical wall that all dispatchers must have the same supervisory status and also know d that because of the infinite and so when traditions within the company courts normally exten particular deference to l r b determinations that it position is supervisory and so that decision was made having had the benefit of the hearing and the transcript and making that factual how and what they do in prioritizing work and quite frankly the evidence is in conflict and the evidence is not there to support supervisory status and so with that all away the rest of my time to take any questions the court may the entergy and i don't i don't have the specific one right in front of me i believe it was the most recent one energy find in which the since circuit stated that because of the internet and some group jasons within a company courts normally extend particular deference to n l r b determinations that the position is supervisory and i know i have it in my papers i apologize your honor i don't have the specific page number in front of me and my notes here ok thank will move back to the rebuttal thank you your honor and just three quick points if i may mr casserly my friend on the other side suggested that the difference between this case and entergy is that it was undisputed that those types of activities qualified as assignment to a place but here it is very much disputed i would just note that there is nothing in the board's half of a footnote on appendix page  five that suggests that it was distinguishing entergy on those grounds and under the chin or a doctrine as this court i'm sure well knows the court has to assess the grounds actually relied upon invoked by the agency and cannot substitute grounds that it thinks are more adequate or proper and so we would submit that if nothing else the board has to distinguish this case from entergy beyond what it did here because it's as justice alito noted when he was on this court in the start on case that does ability to draw distinctions between cases that look similar from one another is him imperative for the court to be able to exercise meaningful judicial review and ensure that the agency isn't are acting arbitrarily  in response to questioning by mr jarvis was asked do you direct frontline people to go to substations and he said if there is an alarm or something that we receive an alarm we may tell them to go and so it's not in dispute that sometimes system operators do this regularly tell field workers to go to a particular location and that's consistent with the managerial testimony and under the th circuit's recent s t p nuclear decision that we quoted in our reply brief it's not it sounds like in your view directing an individual to quit the supervisor that individual is not your your argument yes if that determines where that individual is working in a given shift  that is that is supervision under entergy three and under oakwood itself i would submit and then my final point your honors and i appreciate the court's patience is just that in response to mr jarvis is points that there was somehow something improper about relying on the regional director record from the st go around i don't think that that argument was really briefed in this court it was power ever briefed in front of the n l r b and if the court is interested in that topic although i don't think it's properly before the court i would point the court to our reply to the i b e w arguments in front of the board which is in the administrative record before the court and that's consistent with board regulations and so there's nothing improper about it and there's nothing unusual about it because i maintain and will again repeat that i think if you take the regional directors own findings as i quoted to the court before i think that that is enough to find that this case is on all fours with entergy three or at least so close as to require a better explanation than the board gave here and so we would ask the court not to enforce the court's decision and to set aside the rulings well thank you