appreciate your watching the time clock which is what you can see before you because in this case we're going to allow you pass your argument uninterrupted and then we will ask questions in fall within the definition are excluded from the act protection the board of the courts along struggles to determine which workers qualify as supervisors who should be excluded from use protection at the board noted  health care the drafters of the definition of supervisor but to distinguish between two groups of workers true supervisors vested with genuine management progress and other employees who should be included within the protections of the act even though they perform minor supervisory duties to thread the needle congress created a three part test for determining whether workers are statutory supervisors workers  and fifteen court issued a decision to which you know held the wards findings in all respects but one the forty means that the case to the board d to consider whether dispatchers assigned field employees to places using union's primary are regarding skill assessment because the work incorrectly clued concluded that the court's reunion required it to ignore this argument and all supporting evidence at the outset i want to be clear we're not asking the court to determine what is just factors or statutory supervisors nor are we asking the court to revisit its prior says we're simply asking the court to remember this matter to the board with instructions to render a decision properly and  addresses the relevant legal issues and properly consider the union's arguments and evidence before briefly discussing the specific clause in the board's decision i would like to quickly discuss the appropriate standard of review the board and enter this matter to the board because the board of pension reflects the lack of belief and vision in that case although there is no question that the court should court should consider when the board's decision supported by substantial evidence its review must not tromp that the employee performs one of the twelve months supervisory functions with respect to assignment the board develops various criteria for determining whether an employee actions constitute a supervisory a require other inquiries to take certain actions throughout this litigation you consistently contend that dispatchers do not sign employees to places to be sure the union can see that the dispatchers contact you personnel and those employees supervisors to tell them the location of an out but those near communications do not amount to supervisory a sign prior to its decision here the board had never previously concluded that a place the work had not previously needed to consider and analyze this question because super value miserly status can be disproved by solely focusing on and finding a lack of independent judgment but the congress is exercise i'm independent judgment makes the worker into a supervisor only if the worker exercising such judgement in connection with the supervisory function the work is not particularly here how the dispatchers allege discretion prioritizing outages when subordinates is not a supervisory function demonstrates that the dispatchers exercised in the time and judgment in assigning particular field employees to a place particularly in light of the fact that the dispatcher simply relaying outage information to the next field employee on a pre determined call were all over the board focus too narrowly on the core high which led it to ignore the evidence highlighted by the court instead it we meandered the case to the board to make its own reasoned determination by considering both the evidence the court highlighted and all of the other  the word attempts to excuse its failure to address this argument by focusing on the core consideration on call this field employees well it's true that the court discuss these on call us that's a discussion had nothing to do with skills assessment despite the absence of any analysis in the course decision concerning skill sets and the board simply assume that the court would find skills assessment relevant which lead to completely ignore the union's argument in this regard s supervisory assign the person making the sign must have the authority to require the employee mr umphray yes you have four minutes left so you thought and plenty of time uninterrupted and contest the st call as to whether there's assignment here at all can you give me a number to be very quick can you give me a record cite where you did contest that to the board  remit that the law d would permit assignment to exist when it's temporary by outage or if that's not your argument or record cite to where you argued that they couldn't just sign if they don't a skillz so records made sense to either point if i'm describing their correctly and then if you know it off the top of your head the best circuit decision that stands for that proposition to start for which proposition for either one that you can't be you can't  e when the a time it is just temporary like to an outage or you can't statutorily it fine if you haven't already assessed skillz so for the record saying from where you made the argument on remand and the best case the when you were saying the more the board didn't wrestle with the fact that it had in all its earlier iterations had led to defend yet when i look at their opinion it is four pages single spaced double columns and particularly and i know you know by hard footnotes three and four are explicit but it did consider all the prior litigation so why wouldn't we say that it was aware of its own prior fact assessments and must not  the burden of proof the board has to find all three steps are satisfied before you can find that someone is a supervisor so we can waive that issue because if it's inherent and required by the statute itself or has to find that there is a sign authority can do to your nd question the the issue of skills assessment is critical here because there is no other indications that dispatchers make any sort of independent judgment when it comes to selecting a particular field employee for an assignment when it comes to even selecting which or how many fields and they will respond to an assignment there is as  maybe the court carol heller from the national labor relations board the last time this case goes before the court the panel identified specific evidence that it found arguably showed the dispatchers were supervisors because they assigned it lawyers to a place using independent judges and we manned the board follow this court's instructions to consider that edits and determined that the dispatchers were in fact supervised substantial evidence supports that finding which the court should affirm at the board noted again and again and its decision dispatchers send field employees to the titular d locations to perform triple work they do this in multiple ways they take the old employees from their regular area and send them to a different area to perform trouble work once they asked that trouble area the dispatchers can redirect those field employees to a different tribal area or when they're on route to a tribal area if patrick can divert those field employees to a different location and when they have completed their initial trouble assignment i again the dispatcher that decides where the field employees go next either on to get another job or location or back to their original work area and all of these ways all of these actions fall within the literal phrase assigned to a place or if so could put it ordinary meaning of that statutory phrase now it's important to look at how local would defined and applied the phrase assigned to a place because the board set forth at the outset of its decision or issue before it was whether the dispatchers assign employees to a place using independent judgment within the meaning of oakwood and moreover this court in emergency room charge nurses is that page six ninety five dollars of the oakwood decision the board there that the emergency room charge nurse was assigned employees to a place because they quote assigned interpretation of the phrase assigned to a place in the dispatches here likewise assign field employees field employees to a place the board said that the field employees  story that the dispatchers send field employees to one location and then reassigned them to another spot it says that the dispatchers allocate field employees to a place to perform repairs it's said that they that the dispatchers and i know the local six o five takes issue with the use of the word undisputedly at the end of the board's decision with two points in response to that st it is undisputed that dispatchers as we note that the word undisputedly comes at the end of the board's decision it's not as if the board started off by saying it is undisputed that the old employee or that dispatch is assigned to a place and move on with its discussion it is after the finding that i that i previously read to your honor's with the board is finding that the feeling that the dispatchers to assign to a place by sending the field employees out to various trouble spots more with those those phrases send determined allocates those are all active words the board is not finding that they merely ask for request as local six o five would have it and the and the evidence in the record disputes that it shows that the field employees must listen to an assignment from a dispatcher that the dispatcher owns or controls the field employees when sending them to trouble work that the only contrary evidence in the record that local six o five points to all refers to the limited circumstances over time or an after hours of field employees can refuse those kind of assigned but only those kind of assignments and that is not limited to the that they can't that the dispatchers cannot require overtime assignments does not conflict or for close the board's findings that they do the dispatchers do assign in place the places and there during the regular work hours a substantial evidence also supports the board's finding that the dispatchers exercised independent judgment when assigning field employees to places that finding is in line with this court's findings and observations and its previous decision we mandate it dispatchers in multiple added situations decide where to send employees st where to send them next and what order to send these employee the field employees to various locations and is this court found and its previous decision that dispatchers receive no guidance no rules no standard operating procedures from entergy it is the dispatchers that are making this decision based on of the facts on the ground as this court put it those determinations are quote guided by a range of discretionary factors similarly this court found that quote no simple rule there is no simple rule to guide the dispatcher's discretion in who to help  points to a general practice of helping so called major major clients customers the ones with the most the word the most customers are affected but that practice is neither binding nor comprehensive it is not binding because the dispatchers can deviate from it based on their own interpretation of the facts on the ground their own evaluation and the board recognize this and its decision stating that although dispatchers have a list of priority customers to consider this factors are authorized to make a judgment call that they can go to a lower priority customer before a higher priority and they consider factors such as the type of outage the number of people affected the types of people affected the weather the safety concerns all of these considerations are we live with the dispatcher  determine also with the general practice is not comprehensive because this court recognized in situations where there are multiple high priority customers with adage is it is up to the dispatcher to decide which one to go to st for example if there is a hospital and also a big industrial plant the dispatcher gets to decide what gets to hospitals the dispatcher gets to decide now there's no need to doesn't and so the fact that there might be some evidence it goes the other way is not is no longer relevant when you have the other evidence that does show independent judges because that evidence does not confer and of course  in skills assessment the parties all agree the union agrees that skills assessment is not necessary for a finding of independent judgment for the client three plus this court was aware of the skills assessment issue because the union agreed to it and in the previous decision in the previous litigation and yet it downplayed the import of that fact it said it recognized the existence of these on call lists but that even though it doesn't tell the dispatchers to defend or even sorry even those on call list tell the dispatcher to the nd they don't tell the dispatcher when or how many people how many people and there's no bo it fifteen years of litigation up and down so the worst thing for us to do would be able would be to resolve it creating even more attention to my questions relate to other circuits interpretations of this if we really mandate saying we're worried that there might be evidence of discretion it's very hard for be to have the board just say well what you cited is proof of it when the board three or four times before had said there was no independent so how can we be confident that these dispatchers take instead of request it slowly and if it weren't mandatory that would be intentional i think with golden crest and how can we be confident that if they do  previous decision in two thousand and eleven it was looking only to things like the fact that there's a computer system that gives the geographic coordinates for a point outage and the board found that was not sufficient to produce to show independent judgment but the board in this case was looking at different evidence the prioritization decisions the to be discussed and that the dispatchers had heard sent and how many of them play it out into the field so it's not as if the board was looking at the same evidence and simply coming out the other way only other question quickly is can you have statutory assignment power if the assignment is temporary in other words the steel the boys will revert back to chargers the other nurses are but then they rotate on their own to another location so those assignments were temporary as well thank you judge robb hi i have a couple of questions one deals with why are we looking at the outages instead of looking at the day to day work and does that matter that it's just a smaller question until the work you feel as the day to day work supervisory authority over the field in play if and i would say this is not a small that this is not a kind of a one off or a minor part of their work they're not minor but not the day to day work it's some some of them are  so it does take up a significant part of that work ok i thought you started to skills assessment when you said that there was some sort of concession or agreement or can  is not necessary for finding an independent judgment and that is what i thought that the concession and the unions reply brief it takes twenty four dollars they say the agree that skills assessment is not necessary for a finding of independent judgment so the fact that given their arguments throughout i mean that's the whole text that was a large part of their argument to war i suppose that's a that's a question for them i would but i would point you again to that sentence on page twenty is not necessary and therefore the lack of skills assessment is not dispositive on the independent judgment question if it was necessary do we have to send it back and that's my last month  if if the court determines that skills assessment is required for a finding of independent judgment then yes i think you would have to remember but i don't believe there's any board case record that hol points that the union has made regarding the assignment to a place issue and waiver st i'd like to specifically respond to a representation made on page eight of the union reply brief where they will list all of the time that they have specifically made the assignment to a place argument that there are certain before the court in this appeal in on page eight they admit there that  believe this is a very significant admission your honor because pursuant to th circuit precedent in nearly identical procedural circumstances this court has held that a party has abandoned its argument federal appendix to eighty six that's a two thousand and seven decision and in that case the court held that an argument that was not explicitly made by a party on st appeal or on quit remain and to the lower tribunals was abandoned for purposes of the nd appeal d d even though it had undisputedly in litigated at some point prior in the case and that harris county decision goes even farther your honor because it specifically says it's not enough to use the words like arguably that doesn't put the issue squarely before the court on st appeal or squarely before the lower tribunals on remand the facts and that harris county case as substantively different from a procedural perspective are remarkably similar the facts that we have here we submit the result should be no different the union now has waived their assignment to a place arguments and this court should not the latest lee resurrect them or consider them in this appeal i would note that this is separate and apart from energy eve labor arguments which we still assert that is a separate independent basis upon which this court but also decides not to review the assignment to a place issue on th if i may just very briefly the union has claimed that tinny for some reason can't be applied because it is only being asserted by interjecting in this appeal in our brief the case that they cite for  this proposition the independent electrical contractors of houston case we do not believe stands for that proposition or owner but moreover in quite importantly the supreme court itself has recognized that this court  unless such failure is excused by extraordinary circumstances this poor therefore is authorized to expunge an appraiser record to determine the power of the circuit court to review paragraph one be of the board's order  the d c circuit has similarly found in sheet metal workers local union eleven the evidence all right but but those are all cases where the opponent or the person raising the waiver  point and today you have very little time left of what is your what is not your your honor and this is also in response to judge l rod's question we do not submit that any court has found that skills assessment necessarily must be considered and in fact we would point court to a th circuit case in beverly health versus in l r b where the nurses were held to be supervisors that was in the health care context without any skills assessment determination the cite for that case is fundamental flaws focus briefly to begin with on the end i'm going to judgment issues i was explaining our grief and as i explained there is nothing in the or decision that ties the exercise and the judgment to the actual initial response that is not a supervisory function assigning an employee through a place the supervisory function there is nothing that ties that prioritization and judgment assuming it's there function with no explanation and then by casting aside the union skills assessment are you that isn't fair up and it shows that the decision was poorly received there was no reason for the board to completely ignore the union's arguments director stated during initial hearing on page one hundred and fifty two of the administrative records the dispatchers can appeal to feel personnel to go to a specific location but they have no recognised authorities over conclusion the board dramatically misread the court's rigged although no decision maker if ever before concluding that the dispatchers actions constitute supervisory assignment the board found that issued the m c a although the court