with petitioners counsel please approach the they board has consistently done everything it can to take our and nurse supervisors out of the coverage of the section two eleven of the act and put them into collective bargaining units and for that it has been repeatedly and consistently criticized for not following the dictates of the n r a the case law holds that because the board has exhibited a pattern of  or perhaps the entire facility ok because in kentucky river the court did exactly the same thing and held and said it is impossible to avoid the conclusion of the board's interpretation of independent scope of review in this case my reading of your brief was that you were saying the facts were greta enough and no longer kentucky river clear enough so that you don't need a more probing standard of review and your honor i believe that's them once a month the nurses run their care on a day to day basis that is correct you are actually the nursing homes have changed over the last ten twelve years to be much more intensive care three excuse me thirteen ninety six are and the c f r is its forty two c f r section forty three part forty three there's a comprehensive requirements to attain and maintain the highest practicable physical mental and cycle social well being of these residents and that's what these charge nurses are charged with doing and implementing the many standards that are constantly  in the view of the state surveyors and so these are and i'm going to be on the record when in answer to the court's question they are regularly at least once a year reviewed by the state survey which talking about something entirely unrelated to my question actually here's my here's one of my my focus i'm thinking a nurse at the kind of hospital where doctors are running up and down the hall all the time they're doing surgery there quite active in patient care on a moment to moment and day to day basis the nurses might have a role different from nurses in a facility where a doctor only sees the patient once a month and the nurse on assays the patient and makes the decisions about medical care on a day to day basis  for a case of a hospital such as i described it can in the hospital setting there are many layers of caregivers starting from the administrators of the hospital down of the doctors through layers of nursing supervisors and eventually you get possibly even doran's and l p n s and then below them you have a few extra certified nursing assistants in the nursing home the nurses are it you're correct questions you should supervise not they were stipulated the supervisors but they're not around and the record here shows that those people how much of a tiny around i mean they're not around what do you mean and they're around for five days a week for forty hours a week there they are during the day shift ok well and i don't call the rest of time the hour all the rest of the time it's there are those that charge nurses that are under them they've got med nurses under them they've got certificate earth and we know that those that director of nursing services on call or deal land director person is the record however if she's called at all it's for informational because the charge nurse has made the decision and carried out what needed to be done and here f y is the record says this is what happens if somebody needs to be disciplined f y i i get it very different situation from what we had way for instance on page thirteen is that there are the only persons in charge for fourteen to sixteen hours a day they're making the decisions they calls her f y r as i just for they do talk about judgment that's correct by but i guess what we still have to establish is that if i read act gives and providence crack i mean is that the charge nurse or something more than a lead person armstrong boss it has to be somebody who's got a little more she's a little more elevation above the other employees and a more accountability for their performance right she that the person you're calling a supervisor can get in trouble for a subordinate does not do certain things yes they can she can get in trouble and she does give verbal warnings to those people to keep a little line what kind of what kind of things is she telling is asked by hearing officer lerner you said that a charge nurse can independently issue a verbal warning if that's virtually verbal counseling yes verbal counseling here in officer luna when that occurs is there any memel that is written jamm do here you're not doing the job right i think it's one thing i sense a memo it's up to her i'm still kind of curious as to what the job is i think it's up to her to write her up you know a verbal warning memorandum that's how it's done frank and and so as a consequence i think that's what they were talking about with the many layers of supervision so it's possible that if you have lots of layers and somebody else is in charge where there are no doctors around she's much more dominant than hierarchy is what you're saying i am saying that and i'm also saying that that patients residents care needs change and can change daily and she has to make a decision about that was not covered by the manual or was beyond her supervision which she called the director of nursing to consult the record reflects as i said that there it's for your information she of performance by c n n you quoted testimony of someone saying they can me they can be in there that's where any instances where they were there was there was one test and piece of testimony i believe on cross examination your honor that miss white stated that it happened but she couldn't remember the circumstances of it so what i will say though is there the board has come up short in most of the recent cases involving our nurses there's a quite a string of them the beverly cases care more about landmark integrated health after and of course the two supreme court cases health care and retirement corp and kentucky river so i think that it in line with what the providence case and the principle that was  this is exactly what we have here these people are ultimately responsible and i submit to the court that there is the requisite independent judgment being exercised by these individuals to be super i'm wrong to leave providence the providence hospital case out of anchorage it's easily distinguishable because it's a hospital a person may have the same professional qualifications and be a supervisor in a nursing home but not a supervisor in a hospital in a hospital there are doctors around twenty four hours a day in a nursing home you've got a doctor once a month it seems so obvious to me that with a doctor coming only once a month somebody has to be running the place it looks from the way it was so they're saving money on iran's by using a whole lot of less professionally qualified people and using the aryans mainly to tell other people what to do buy manuals even more expensive than they are so i got the u s code thinking the whole wall in my office all the rules of criminal and appellate and civil procedure and all these others i'm following all these intricate manuals more than the nurses are and then i told my my law clerk give me the material from the record that shows all these things in the manual that tells these people what to do and he gave me the little bit that was in the record and all it was was brought directives to exercise judgment company's burden to prove that it's nurses supervisors and the acts you are it's the it's your burden if you're saying the manual shows that they're not to show us the man you off i understand that your hon and clear here it wasn't it wasn't necessarily we're going to lose our you know the nurses are not supervisors in lessness manual shows that it was only the unions attempt to rebut the company's showing that you know the around and everybody else is less professionally qualified and there are no doctors around perhaps but it's really unclear i mean i don't know you know to what degree there's a it's unclear in the record how often the doctors they hear that and they thought it was clear  obviously obviously that's not the case they would have to do that and in fact i mean but that's not something that requires necessarily independent judgment that's you know i mean who are they supervising and it's obvious what they have to do and why how is that obvious there are many reasons why patients not breathing well but there's you know i'm not going to i'm certainly no doctor so i'm not going to tell you exactly what's going on but you know through their training their i mean they're the nurse they're going to determine what they need to do based on  are pro union i'm sorry if all the nurses in this are pro union and choose not to testify then the management can't categorize them as supervisors under your theory because no reasonable inferences are allowed i'm not sure if that's the case ron i don't mean they can be subpoenaed and certainly and you know on the board i don't i mean if there is obviously evidence that something like that was going on what would take that into it's just simply not in the record and that's what the courts left with they had two opportunities present evidence here and they simply didn't do it rather that they're asking for yet another bite at the apple what about this material in supervisory authority that the nurse has whether it's showing that the nurse has responsibility to care for the patient that's not supervisory authority as the records show there something tash to the medical cart for most of their time that's not supervising assistants i just don't you know i mean much much like the testimony regarding the the manual that was parts that were put in there you know there was testimony showing that you know what the manual shows is you know if you have a problem i believe the example is that there was a problem with the catheter what about going on in that same section he does thirty five through thirty eight of those which she says other tell the same sort of things to each other i mean people at work obviously you know more experienced people will tell less experienced people to see things like your theory would limit supervisors to the very top people like the president me executive vice president and everybody else since they have to report to them or get things signed off by them or ultimately be subject to their authority would not be a supervisor you know i mean i have to disagree your honor i mean there's obviously a line and there's extreme did none of that here at least there's no evidence they did any of that here so it's not it's obviously not limited to the very top people thank you rogers let me start by going directly to the question asked by judge kleinfeld and i think we have to see that it actually cuts in exactly the opposite direction the fact that there are no factors present and most of the times in this nursing home he said the primary responsibility provider for providing care professional care to these patients is borne by these alleged supervisors i thought there were very few of these alleged supervisors and that most of the people providing the care where the certified nursing assistant and others who are further down the hierarchy than are are and those individuals can't provide professional care they can't deliver medications for example yet that you would under supervision no they can't deliver medications or aren't these nurses as the testimony a charge nurse and she was asked how often she would have to correct direct c n n and she answers and i quote a couple times a week a couple times a week so what they're doing most of the time in left for the records represented by the board and page thirteen there's an example from the already testified and there wasn't are any testified presented by the union so there's both a deal and one of the aryans testified she talks about missing a patient she's about examples of the kind of direction again and she says and i quote i'll just remind them to people who are left question and is it pursuant to the employer's policy on hoyer answer yes our safety protocol so that's the kind of direction she providing patient care she's not properly using the left to get a patient out of bad she knows that's against the written policy and she's simply passed for them he should be using to people that's the kind of direction we're talking about it clean someone's eye out maybe even do a good job right say you know you need to actually just showing them better technique question are you getting it from the employer policy answer answer it would have to be another examples of the direction in which the employer alleges you're supposed to use to people left person out of bad that's according to the written safety protocol you're supposed to use this technique to wash out the patients that's according to the written policy this is not the kind of direction using independent judgment which congress had in mind in the board did exactly what the court told it to do in kentucky river it's there to look at exactly the assignment and direction then look at the constraints on the independent judgment and then impose the burden on the employer to prove the actual size of independent judgment within the constraints of the employer's policies manuals rules what have you you have to look at the  thirty seven d my thinking is the nurses to the person who's actually cleaning patients started out you did a good job or you need to do it better than you did it the proper technique is such and such and you're saying well that's just the rote following of a manual and i'm thinking it's no more rote following of a manual then when we reversed a case and send it to the district extent three we know that it's then you burden on the employer to prove that you need help angel exercises of direction very occasionally and these are the examples that are given it's the burden on your employer hoarder so if i see only one person doing it i say you gotta have two people how do we know that in how do we know the pattern we know that all the nurses doing there is supplying some roof standard from the manual when you can put the manual in evidence and a little bit of the manual employer and if you look at the employer's evidence with all due respect it is full of conclusions do they direct yes yes fine yes but if you look at that evidence and break it down for example sign of no you don't get my question let me explain it i read an excerpt that you just pointed me to and it says a nurse reprimands other people for not using two people to look at the horror and i'm thinking boy she really is exercising a lot of independent judgment i don't even know what a your wrist and she's saying not only if she knows what it is but you need two people to lift it and you're saying that is not an exercise of a independent judgment because it's right in the manual and i'm saying show me where some manual and it might injure the patient or the worker she's saying this is protocol i simply told them to follow protocol the employer could have put on rebuttal evidence and said no there are many instances where the exercise judgment in situations which are not governed by you check it out and if it doesn't seem to fit the patient then you change it and start all over again question do you do this independent you do it with anyone else actually your chart it's independent independent judgment it becomes ingrained in you as a there is one thing but i don't think it's what the case is that i think the question is whether there's independent judgment and supervising out there in directing the work of others or are ok and that's through responsibly direct that's the standard we're dealing with here and so i don't know what any of that testimony has to do that well what their testimony saying to us is that that nurse must use your professional independent judgment you determine what's add also this the nurse and she is not somebody who is steeped in harvey law but that's what she's saying she's doing she's describing the nursing process  and somebody else say that that the way she implements these plans this by directing other people to do the work well she does and it is a throughout the record that she's directing the c n a that's throughout most of the  these pieces of the testimony in both hearings and also that information on the for your information that's on page thirteen of the july sixteenth hearing where both as to employment decisions and operational decisions that the person has made on the floor she lets the director of nurses know but it's not for your information basis that is the record i submit is closing their  exorcist what kinds of things they call you about the call they make called to be usually f y i say there's been a disturbance outside there's a leak in the roof things like that they were called let us know what is going on are the calls the charge nurse makes a decision carries it out and then what's the deal and do they ever through their recall you lack personnel issues that's what this was about do they ever call you about personal issues answer's yes so they're just calling to inform you answer right i submit to you that what's really going on here with the with the board is to try to create a hurdle over which no employer can in trying to establish a supervisor had to reduce in this nursing area supervisors down to next to nothing as one for the set to narrow the definition down to nothing is strange