familiar with the facts i had not prepared for argument today but will do the best i can to address the issues on appeal before this court will do fine thank you this matter presents a question of whether certain charge nurses or team leaders as they were called were supervisors or employees under the national labor relations act it's a balance position that the these individuals were supervisors under the law there are a number of in the definition of supervisor under the national liberation is act it's necessary that a person only perform one of those elements in order to be considered a supervisor for what constitutes the team that is beating lead here i can address that judge that team leader is the job description that's contained in the facility it's it is the actual job description that was used and there's evidence that record that that's that the title by category in which the occupy at this particular employer is that of a team leader are all elp sticking with the same question or set of issues that judge walker's raising are all l p n s team leaders at this particular facility the answer is is yes all of the into the team leaders ever lead l p n s so you have team leaders leading team leaders or are there is there a distinction between some who actually  team leaders because they have l p m they have some lp hands on to them and other people who aren't nourished edge at this facility the way that it works there's a team that constitutes sort of a nursing a unit or a wing if you will in a nursing home and the  that wing on a day to day basis includes a large number or a larger number of certified c n a certified nurse assistants five plus that includes housekeeping and dietary and other folks the team leader is the person who is sort of the quarterback of that team on a day to day basis making decisions with respect to the assignment of work of the c n a and addressing issues that are actually very clear there's a supervisor in charge of everything both floors the two floors you're right sometimes judge sometimes there's not many times a day the team leader in this test you're looking about if you were to draw a chart of the of the of the of the positions there's there's i believe from the rec there's a person who's one person who sort of sits on top of the whole thing and then there's somebody each and that person may have a deputy and then on each floor there's also a person who's senior senior person on each floor and each floor is that correct not always judge so what happens over the course of the day when the nursing home is is fully operational is an administrator that is a director of nursing on site oversees the whole building there in our supervisors one thing yeah oversee different just different aspects of it but in terms of running the unit on a day to day basis the specific specific floor for employees those supervisors oversee multiple floors that are not present during the vast majority a day in addition overnight evenings those supervisory employees don't work there are times when an lpn is the top employee an lpn team leader is the most senior person who is in the building  night from time to time there isn't a nurse supervisor on duty back that can be the case during other times when their supervisor is on duty the lpn team leader is still the person who's affectively responsible for managing the operations in the particular unit they do not check with the nurse supervisor or director of nursing or administrator with respect to any of the assignments that are provided on a day to day basis they make assignments like all of the folks who are floated into a wing at a particular into their unit on a daily made that the argument was effectively by the other side that these folks basically do the same thing every day that's really not the case there's a sign meant to of rooms which basically dictates what a subordinate c n a does throughout the course of the entire day and that those initially are made by the team leaders and then whenever issues come up like about half the staff on the unit each day are folks that are part time or temporary folks who are floated into the unit so the under this scenario you know there is not so there'd be one lpn is the key person on the wing during that time period it is you are on the floor and they're going to make all these decisions when c n a get moved to a floor for whatever reason the open as think that substantial action in fact a question of law mix question of fact and law in your view i think it's a mix question of fact and law i think that the facts established in the record clearly have lots of elements of supervisory status there are papers detail specific chapter and verse contained in the records for example with respect to the ability to direct mr mo baccy who is the lpn team leader testified that he he makes assignments on a day to day to day basis he decides based upon an lpn i'm sorry it cna is background their abilities and skills on a daily basis to what patient they should be assigned to and those assignments are a clean slate when the when a person floats to do a particular floor there is no precedent with respect to where they need to go it's made one hundred percent in that team leaders discretion activity those that's dependent upon the fact that you're saying that the supervisors acted if they were supervisors they acted in appropriately the question of maybe judgment i was asking him certainly i'm i'm curious to know is if two consequences would arise though one we've identified a number of campaigning electioneering activity that would be inappropriate for a supervisor to have engaged in and objected to that time later was that it was that was raised below yes those were objections to the election  that were identified and second lpn team leaders played a significant part in the campaign activity that took place and under such circumstances under quinnipiac the court the should set aside an order a new election altogether i'm sorry i should have said that isn't it at least argued that that wasn't raised in a timely fashion there was such an argument too over the stipulated election agreement the very beginning of the case preserved the employer's right to argue that lp and team leaders were supervisors and there were objections that were raised following the election with respect to activities that they had engaged in contending that wasn't  decision is substantial evidence in support of it regardless whether we would agree with it or not that that is correct judge however we do believe that there is all the core needs to do it and that i believe the law is black and white if this court were to agree that in the record there is just one of the various elements that establish supervisory status and we believe that there is more than ample record evidence the record that regard the appropriate result would be to what if  lose at best one instance of an lpn acting in a manner that would be consistent with that evidence cannot be overlooked judge i mean that record as long as they've got the ability to as long as they've got the ability to do it in a stablish is that these folks are in the capacity of making these types of decisions and the record the evidence the record was not just about me it was about each of them testified for example john the fact is testimony was about what  eight somebody that everybody can agree is a supervisor present that the o p s can't can't just sort of sit sit there and watch i mean circumstances require some management and so there has to be a little play in the joints on that without them necessarily becoming supervisors the statute really doesn't afford that type of latitude i mean as long as they've got the ability to assign to direct to discipline and the other i had items that we had then a fied they are supervisors it doesn't matter that they use that power infrequently the fact of the matter is they had the authority and did exercise the authority to do many of the things that are included in th descriptions come into the picture here they absolutely do judge the jet the job description specifically include key elements about how they're evaluated with respect to their ability to supervise their underlying personnel for example that have that the job description and annual performance evaluation include items like directing and monitoring the duties of the of the subordinate employees that report to them and you know reading from a particular page of the record now yes that can that's on page two twelve to two fourteen and six fifty five and fifty six in the record on appeal that cite some of the elements with respect to the performance  the hearing the terms are used interchangeably but the union the unit that was actually certified by the board includes three different job classifications there's l p s and lp and team leaders an lpn charges and the employer failed to clarify  hearing what's the distinction between those are how many of the fifteen individuals at issue are one of those three the second issue i want to clarify which is very important is kind of the the hierarchy of the the facility individual c n a is do go to the administrator to resolve issues below him you have the director of nursing who's in charge of all nurses and who is not there all the time for example at the evening overnight shift but below her you have an r n nursing supervisor who's responsible for both floors of the facility and below her you have an r n unit manager who's responsible for there's two of them and their teachers possible for a given floor and as the record shows there is never an occasion where you don't have either an r n unit manager all or an r n nursing supervisor onsite and so descending order of seniority if you will what you just laid out for act and then below those managers are supervisors you have l s who are in a sense considered more senior nurses than the c n a but l p n s have their own job duties throughout the day they're not responsible for supervising nurses like these other employees l p s are performing their own duties in connection with caring for the residents of his facility for example they administer medication they perform recordkeeping functions they check the narcotics store each day and so it's important to note that there always is a more senior nurse and i can certainly understand your argument based upon the hierarchy you've given but we're talking about twenty four hours a day and it looks to me like most of these jobs are eight hour day jobs nine to find this i can see how this hierarchy might be in place but what about the other sixteen hours director are there three shifts so there's a daytime shift an evening shift and and overnight shift and so you have different is not going to have the registered nurse to there for twenty four hours our it's different employees the so the director of nursing for example is not there twenty four hours because there's one director of nursing for the facility but there are ships of our and nursing supervisors and our own unit managers so even during the overnight shift there is either an r n unit manager or an r and r a nursing supervisor at the facilities so if an emergency arises arounds call to supervise rect so for example of if a resident as it is experiencing pain or emergency arises in a c n a witnesses that the sienese duty is to go contact the more senior nurse the lpn but then the lpn is required to go and contact a manager or an uncontested supervisory nurse in our brief from the l p n s another employees that there's never an occasion where and lpn is the most senior person on site so even overnight if there is an emergency there is someone more senior who makes the final call and that in fact they required to make the final call because virtually all of the care provided to residents is spelled out in a very detailed resident care plan which both c n a as an lpn are required to follow and only the managers have the authority to modify that resident care plan so an lpn cannot make a final decision that for example we're no longer going to do so is that the board's position at so long as there is somebody else senior somebody who is also a manager campaign manager no your honor it's not it's not that bright line situation but in this particular case what the evidence shows is that they're not making independent decisions on their own so you could have a situation where you have multiple layers of authority and the less senior individual is making independent decisions for example in the oakwood to the boards leading casey oakwood health care case there you had charge nurses who were found to be supervisors and there was presumably more senior personnel but those charged nurses had the responsibility for making independent decisions using independent judgment during the day for example as patients came in and medical decisions had to be made in their expertise of assigning those incoming patients to nurses based on skills based on expertise this case is different because the l p s do not have that type of independent judgment and for example on the assignment factor contrary to the nurses assigning a less senior nurse to a patient can contact can constitute assignment but here there's insufficient evidence that the do that independently or that they do it using independent judgment which is required for all of the statutory factors because the only evidence in the record is that when lp ends or assigning part time and float c n a so first of all full time c n a is always have the same residence they're not assigned residence discussion or really it all  a discretionary simon needs to be made lpn baki the only specific concrete considerations he could provide were first of all the gender preference of the patient which is spelled out in the resident care plan and is a kind of routine clerical decision and secondly the equalization of workloads so making sure the c n a are assigned you know roughly equal amount of work and under a status board law those do not require independent judgment for you or warrant i just wanted varies throughout the day or hour or so during the daytime shift when there is the most activity i believe there are steps that will suffer throughout the day there's two pianos on each floor and during the daytime shift i believe there's five to six cna whereas during the overnight shift there might be four or five for the entire building and so during the day for the entire building you might have guessed ten to twelve because you have two units so the lowest ratio would be during the somebody is going to make that decision that's correct your honor and those were the handful of examples in the record where for example if a resident requests a different c n a or if a family member requests that a resident receive an unscheduled shower and the board acknowledge those situations or hypotheticals but what the board reasonably found is that for the lpn to then discretion early assign that does not require independent judgment because that does not require weighing say the expertise of the c n a or the acuity of the patient or any kind of expertise or a weighing of data or independent analysis that essentially just a clerical or routine administrative functions where the lpn would say so that perhaps th a is available to do this right now or the c n a is already assigned to this patient so they will do the unscheduled shower there is that kind of discretionary decision making but something which i think is important to emphasize is that independent judgment under the act is a term of art which the supreme court has recognized as is an ambiguous term and in the kentucky river case in two thousand and one the supreme court held that first of all the courts are required to defer to the board's reasonable interpretation of that term and secondly what's very important here is that not every decision which is discretionary constitutes an independent judgment the purpose of the supervisory exclusion in the act was to distinguish between statutory supervisors who are exercising genuine management pr from lower level employees who may have some type of supervisory authority such as lead persons or straw bosses who may be directing other employees but don't have sufficient independent judgment and don't rise to the level of having all of their rights under federal labor law stripped from them so there is the supreme court has recognized that you have employees who make discretionary decisions and may direct others but it does not rise to the level of being a statutory supervisor and the supreme supervisor wasn't present surely because in one instance where a time when when because somebody is sick or because you know all of a sudden the resident nurse has to has to leave  for an emergency some like that and there's circumstances occurring at the at the nursing facility that require some some actions and some you know competent decisions and lpn steps in and asked  a to do a certain thing or that's not that's not the same thing as an assignment a permanent assignment no it's not but it's an example of circumstances where they may be the top person there's a premium even even within the  contrary to the you're not arguing that just because conceivably the circumstance could occur where the supervisory personnel becomes sick or called away and are out of the building during the overnight shift that makes the i'm not i'm arguing that in fact has happened where these folks exercised supervisory authority and happens on a regular basis contrary to the board's position the test on the record established that with respect assignments is not perfunctory it's not simply occasional showers a mystery vacuum testified that we consider the gender of the aids specific requests from families skills the c n a as well as the acuity of the patient you talked  about the fill in assignment sheets which are about half of the flowed each week each day that he's responsible for how we would assign tasks including showers and nourishments and all i kind of stuff he also testified that he would you base these decisions upon his judgment and what he thought was fair c n a workload and their responsibilities and abilities there is evidence that would have supported the opposite conclusion doesn't mean that there wasn't i was making the point that you really are you in the wrong side of it got to look at what the what the what the board found and what these what the evidence was that they had before them and to see whether or not it was substantial in the sense that it was relevant that  so it's the understanding the you know the ability of peons to act in certain instances to the end of the day the fact of the matter is that they had the ability to exercise this authority and they did the fact that there could be a more senior supervisor someplace in the building doesn't mean that they didn't actually exercise this authority and just to address the question of you know the board's position and what we should be arguing it's that what the board said was that there wasn't substantial evidence that they were engaged in supervisory that they engage in any one of the statutory supervisory duties should the appellant's establish that it did this but that there is substantial evidence the record that they did any one of these things that's sufficient it's not just that the board you know  it's no burden of proof for that for them to try to establish the absence of the stuff they just didn't appreciate the import of the clear examples of supervisory activities that w