company's operations director for almost the st part of the transcript testifies specifically on pages two thousand four hundred and twenty five he says that nuclear plant is a very very highly regulated business that they have to regulators that are signing on the site at all times they have to regulating bodies that oversee that company the nuclear regulatory commission and the institute of nuclear power obligations the board makes no mention this at all in either of their decisions mr jefferson also importantly testified about what he called the level of insurance business that management has he testified that here it's much more in the nuclear industry than it is in other types of energy generation he said the whole industry is this way he said management of all levels are heavily involved in what the levels below them are doing in the reason for this redundancy he said although some some of the facts regarding that make it in your favor it's simply whether these kinds of supervisors be joined within the bargaining unit and what in what interested me is apparently some of those supervis testify in favor of the union right they did they did i why i mean what's the big deal if nobody ever leaves their job they d are tired there's a union covering five what's the law you have to demonstrate is that either the maintenance supervisors or the power plant supervisors had discretion and responsibility with respect to one of a number of factors is that correct that is the law yes yes all right so why don't you explain to us which which is your strongest argument and in those it's ok so i  that that they are able to do down with the skill set of the employees if they want to make so if they need to train someone or someone of a better worker has a stronger skill set that those are some of the factors that they'll take into accountable because there is no evidence of supervisors having made mistakes right well i think that there's a very important though how can they hold it against you if nobody's making mistakes and i think this goes to don't disciplinary problems and i think the testimony is there in the record and was ignored by the board that a few things that were more that go to this point when the safety conscious supervisors the unit in them and supervisors are very frequently corrected and counseling their subordinates when they see things happen because even the goal is to catch it early this isn't the type of industry or company where you know an employee puts five weeks of salt on the fries versus who are in the state doesn't have a you know some sort of huge was all the result here is if a person makes a mistake we have three mile island we have you know which is prove this but there's nothing to show that there's anything that needed proving i guess because they are that the idea that they had responsibility to belittle me up the line our responsibility for counseling while his crew has never done anything that would warrant his discipline he knows he would be disciplined if it happened he said the same thing in records on record two hundred and forty two dollars he says that he's accountable for his crew regarding the time that the main supervisors testified that they are able to assign overtime the board tries to discount that by saying you know it's only a slight amount  sort of the responsibility directing already talked about the adverse consequence portion of that but i think you have we have evidence in the record of record sixty nine about unit supervisors they stand over the reactors to direct what supervisor selects a people who are on the hiring committee they do have in there is testimony that they get to like for instance supervisor griffin testify that he wrote the questions he hits the people who were going to be guess i gather that the supervisors did in fact have some input into the makeup of that schedule is that correct that is correct judge jones and again that is something the board orly disregard stages it's a fourteen week process that they become very actively engaged in the process in determining what more needs to be done and if it's feasible do they have the equipment do they have the people  saying that they have no role in it and in ignores huge portions of the record and i believe because of that the board ignoring all of that evidence their decisions not supervisors on are not supervisors within the meaning of section two hundred and eleven of the national labor relations act and i would just say overall i'd like to because the this case these cases came before the board on two separate eviden ary records and they were separately litigated before the board i'd like to discuss the cases separately beginning with the unit supervisors before i do that however i won't just say this court has accepted the specific statutory definitions that apply in entergy this court and doors the board's definitions of responsibly drachten the pendants argument and assigned under the act and so we i think have to be very attentive to the specifics of those definitions which have been accepted in this court assignment and i'm going to turn to the you know unit supervisors for us to sign it means assigning people to a set of work hours such as this shift a little case and or significant overall duties in the case involving the unit supervisors the company is not claiming that unit supervisors assign people to a time those assignments are made by planners not the unit supervisors so the issue is the significant overall duties and the company as the board did not show that the unit supervisors assigned those significant overall duties the overall duties are in the authorized work schedule and i have to disagree with my colleague but the work schedule essentially is not a schedule and doesn't specify time it is a schedule and there are time frames within which certain tasks have to be performed all the minute surprises do is they don't that's have to be two or three operators or six or seven to people as and assignment of overall duties which doesn't seem logical even if you could do that there isn't a showing of independent judgment and making these choices the unit supervisors have to follow the authorized work these nuclear facilities that person the ship manager would also weigh in on any deviation from the authorized work schedule so that again undercuts any any room for discretion to be exercised  tillman's testimony they were both in agreement that they would get from the shift manager on duty before they deviated or did anything frankly they would try to get that person dorismond i would briefly like to address because that is a case involving the people in a control room at a nuclear facility i will just note that st of all that has long pre dated forward and the board filed a motion to cited are pretty up with and i would ask the court to be attentive to that to the distinction in terms of responsible direction it was in the case of the unit supervisors that the board says that responsibility is really not an issue before this court because the company didn't argue and it's something brief about the unit supervisors that had delegated authority to take corrective action and before the board in the case involving the unit supervisors the company did not argue about accountability and i would ask the court to look at pages seven hundred and ninety eight dollars you know one of the record which is the company's request for review that's the operative document where it should have raised accountability and you'll find within those pages it argues responsible direction but it doesn't argue accountability and this court has been very clear that responsible direction involves essentially a showing of three things the st thing is direction using independent judgment the nd is delegated authority to take corrective action and the rd thing is is facing the prospect of a consequences if other people essentially mess something up or you think i mean is live almost ludicrous for the board to contend that there is no accountability within the entire chain of command in the nuclear plant the board hasn't sayd that the board is just saying that these people are not held and there's no evidence that these but that's absurd because these are the people who run the run the power generation  mean that's ludicrous because the whole point of federal regulation which is very comprehensive here is to obtain total accountability throughout the process of generating nuclear power right so it's certainly true that these people are accountable in the sense of being accountable for a process or for the facilities and the equipment is not it is not record acknowledges that accountability for purposes of section two hundred and eleven countable for the performance of others of employees and so that is the specific showing that the company had to make in this case and didn't make that showing before the board and so it can't begin to argue about when you make a showing you put a guy on you put a supervisor on in a search if things go bad with my employees i'm in deep trouble is that all that is required for that no arm and the court and the board cited and it's free for a seven circuit case that some someone explains what it what it means to you able to take corrective action for example it means being able to play some small burden on the employee to enforce the direction that's given so for example if the unit supervisor or the meeting supervisors have the ability to discipline people or to affect their in the unit supervisor case the issue of accountability ability was not argued before the board so it isn't before the court under section twenty however the evidence on accountability that the company presented is that it downgraded to unit supervisors based on supposedly their failure or the failure of their crews performed well and only one of those units supervisors testified mr talmage and his testimony is that he wasn't aware of why he was downgraded he wasn't told that it was for poor performance of his crew and even his and this is a quote my th manager side he didn't know either and that's it pages three of three through three or five of the record and so the in the board's you and i think this is reasonable that doesn't establish that unit supervisors are made aware that they face the prospect of adverse consequences if their crews fail for perform properly significant failings of supervisory authority under assignment once again the same authorized work schedule and forms everything that's done throughout the facility at living as in support i mean it seems to me that just overlooks the reality of a functioning and very complicated production enterprise because the whole point of having all these set for maintenance crews is that things are going to go wrong so since your light go out on the house at random and that sort of thing and so you have a soft arised work schedule the same as i have a schedule of chores that i do to take care of the house but things happen and therefore you have supervisors who decide where can i work within the authorized schedule in order to address this problem now why is that not responsibly directing and assigning the process showing that these mean supervisors have delegated authority to take corrective action there's absolutely no evidence of that in the record corrective action of what as i said placing some small burden on the employee to enforce the direction that's given so that the record is on the median supervisors that they can live in a literal sense correct people and show them how to perform a task correctly but there is nothing showing that they way the only way the company would have been able to demonstrate that is by saying here's a supervisor who a lot of the employee who employee under his watch made a mistake and he had to do something but there's for whatever reason if there 's no evidence of mistakes how can the company but you know vera burden of showing that they have correct authority well i mean there are i will say there are there are people there are several main supervisors from long term you know twenty and thirty year employees and it is surprising that the company wouldn't be able to come up with any evidence in his favor from those employees  in addition one of the employees and believe it was mr wilkinson testified that he was actually held accountable twenty five years ago for a mistake of his crew but then he also testified that in a separate incident he was not held accountable for a crew mistake and so the evidence that the company presented is in conflict and of course it can't meet its burden of proving the supervisory manager he related an incident in which a supervisor i mean and supervisor allegedly was held accountable but in that instance if you look at the testimony in mr martin's testimony in his own description of that incident the supervisors being held responsible for his own failings he said i don't see you report an injury of a member of his crew but you just you just said they're not accountable but  he was not held accountable for the performance of another he was held accountable for his own failure of performance and that distinction is extremely important and again it's something that this court embraced and en one likes to just briefly go back in my mates and me and note some of the other distinctions on some of the facts hold distinctions that the court should keep in mind if it dies want to look at that case the employees are the same in that case were equivalent to the shift managers in the case involving the supervisors here they were the top level employees who are in overall charge of the controller  the unit supervisors in this case are not in charge of the controller and the system manager is in charge of the controller the nd difference is in making there was nothing like unauthorized work schedule and in fact it was the civic testimony in the record in that case that although there were many procedures that were governed by written guidelines there were many more that were not governed by written guidelines and so there was a great deal of room for discretion by reshift operating supervisor who again was in charge of the controller and i would say that those facts all distinctions are highly important to the extent the company is arguing that the supervisors here are like those in me that that's simply not factually  that the company has characterized this as a ruling that has ramifications throughout the industry that's just not true the board looks at huge industrial setting in each case and the record in each case and consider whether there is evidence to establish supervisory status on the facts of the case so this case is not presidential for any other nuclear power plant unless the nuclear power plant is essentially identical to this one  they're all going to be identical because they're all governed from top to toe by federal regulation i must know that we know that that's true your honor but let me but let me just ask you one thing i did i did discretion over how to make up crews to do particular job right i mean the board the board did acknowledge that these these maintenance supervisors it do you quite a bit of giving of discre the board did specifically address the idea that you know all of these various kinds of movements and assignments the goal is simply and i'm going to quote the testimony of mr langston hughes of maine and supervisor is to quote get the right on the right crew as that page eight hundred and seventeen of the record and several other maintenance supervisors confirm that they are just moving people around between crews collaborating as needed to make sure that if crew a needs a certified electrician they have the sort of fire like tradition from wherever he may come obviously but all of that depends on what work is being done you know in the plan a particular time and what the needs are and and who's i mean it seems to me that is very responsible and and then work on the part of the supervisors right for purposes of assignment though again the issue is do they assign people to a to a shift to a location and significant or significant overall duties and i would say these temporary swaps are not evidence of and here one of the match up because the board didn't say anything that they would have training functions and making assignments and that they would have you know the one fellow who testified that i assigned songs i would like to borrow so and so because he has such a great work independent judgment for purposes of section two hundred and eleven is whether a person is acting weird the control of others and forming an opinion or evaluation by discerning and comparing data so if you look at th if you look at the situation where the swapping people primarily you know i mean that's like saying all i need is a lawyer all lawyers degrees are exactly the same so if i'm a supervisor in the legal department i can see how the evidence as you know realistically can be narrowed to that artificial criteria or it's in the start shoot that independent judgment is to be distinguished from routine or clerical determinations and all the board is saying in this case is these people may be making assessments and evaluations as they go but they don't rise to the level of independent judgment under the family routine simonian his point and page two hundred and eighteen which is mr press with testimony everyone is sort of in agreement that these swaps are are of a very routine major there isn't much that goes into them only mr norton who reasonably that there is no there is no showing by the company that these people exercise any of the twelve forms of supervisory authority thank you thank you ok just address the points made by counsel so one of the last thing she said was that the board looks at each industry in each case i think is evidenced by both of these decisions that's clear that didn't happen the regulations that were entered into evidence the job descriptions that were in and into evidence that they're not just paper descriptions they wind up with what these people do there's no mention at all of the fact that these procedures are governed by the nuclear regulatory commission and look fire that the company have these policies so it's not just at s t p came up with policies to try to try to direct people there are nuclear power plant that is required to have such but there's no mention again of that at all in either of the boards decisions regarding made eighty in the attempt to sort of just totally discounted it under cut it because it's forty years old i think there's a number of reasons why the case isn't likeable here st is the board's attempting to give good energy mississippi a is testimony there's testimony in the record about that being an adverse consequence that the supervisor suffered there's documenting evidence in the record about it again no mention by the mississippi calls for the requirement their counsel said he didn't know what happened there's no requirement that he know that why it happened with the losses that there has to be a prospect of an adverse consequence in their i w i think another just to the accountability is the discounting of wilkinson that again it ignores the testimony and in the record there's no mention at all  at the at the at the plant so what wilkinson test of ours about happened you know it did happen but again there's no requirement in the law that it happened within six months or eight months or nine months that's a new made up acquirement by the boards you again totally try to undercut the evidence that is in the actually in the record and in judging him or them to address the question you ask both of us about what difference does it make that these people are in the union you know the board tries to say well it's you know it's about being in the union and that's what they want to be but that's not true the last set is that you don't want supervisors in the union for bonuses fifty percent or greater more than the individuals they attend supervisory meetings that these people don't attend trainees or uniforms or different them around and this is something that the board totally gets wrong  for the union supervisors saying that their training is the same ignores the evidence it ignores the evidence that was put in on that they were seen as more training to get the license or that they do to be a unit supervisor so it does make a difference to have these people who are supervising every day and telling you what to do in the unit who can discipline you or things like  that and to main ag or to the point also about guidelines i believe there was an attempt to distinguish name yankee because it said she said there was record evidence that it couldn't cover every situation but that's the same does not tell me how to do it does not tell me who to assign it to it doesn't tell me the time to do it so again this is the board cherry picking you know random bits of testimony to ignore large swaths of testimony that are in the record that do support these things and again not in these aren't i don't think can be dismissed as any sort of like credibility fines or anything like that because the boring and doesn't even mention them they're not saying as an energy mississippi the court people up on the no evidence that's not the case and we don't have credibility distinctions we have the aylesbury to the extent anything actually gets mentioned saying sure they go to meetings but in the never addressing you know the requirement is if you're going to be if it's going to be supported by substantial evidence and used to be some explanation and then clearly not given in these decisions which are again i think if you look at pretty formulaic copy and paste jobs