charge nurses and whether charge nurses are supervisory employees if they are supervisory employees they are not considered employees and therefore cannot be part of the bargaining unit that's the issue before station to do that that's their preference the way it happened i believe that it is it happened actually ten years ago originally there was a charge nurse petition at that time and at that they are not substantive in any way the responsibilities and duties of the nurses are the same today as they were not exactly the same again there are some cosmetic changes but they're not magic change one of them for example is that the charge nurse is now do not list which rule was violated by a c n a certified nursing assistant but i would submit that that a difference that makes no difference it doesn't matter whether what discipline is right discipline is one of the things that i obviously want to address the issue and i'll get to your question in a second but it's one of the issues that has come up many times in this court and in other courts most recently in g g n s c judge wrote a dissenting opinion in that case and your question then was what evidence is there that they discipline the evidence that they discipline which is not disputed by the board three sets of facts the first is that the charge nurses exercise discretion in deciding whether a c n a zx misconduct should be disciplined they decide whether to do nothing they decide whether to orally instruct  statement of fact yes the n l r b agrees that the charge nurses have that discretion and every charge nurse that testified as well as the other supervisory employees all agreed on that they decide whether to do nothing whether to orally instruct the c n a or whether to use the disciplinary for once they use the disciplinary form the charge nurse then describes the misconduct on the form and there's no dispute about that fact the third fact that there's no dispute about it is that once that disciplinary formis filed submitted to h r to the director of nursing it sets into motion the  progressive discipline process that necessary that that the charge nurse do that in order to have any is one area proceeding go forward it's another routes to discipline i suppose there could be other routes but that's the primary route one of the examples that the board cites in its brief where they say that there's an independent investigation that goes on i would submit that there is not in the vast majority of c and that is that there's independent review by higher ups supervisors to what the charge nurses have done and in fact that's not what the evidence shows the finding the standard of review the supreme court in universal camera has sad quote the substantial substantiality of evidence must take into account whatever the record whatever in the record fairly detracts from its weight in other words as this court held in g g n a c the court has to take into account not only the evidence that the board cited and relied on but also what is in the record that the court or that the board did not cite or distinguish or say why it was ignoring it when the court ignores scuse me when the board ignored that evidence  there's good reason as the court said in g g and i see to have questions and to raise questions about how much deference should be paid there are a couple of other paths you're posing counsel this case is different from what is it well the first point that they make is that the charge nurses don't determine the stage of discipline in the progressive discipline system the charge nurse doesn't know that well the progressive discipline system starts out and once you start down that road a progressive discipline every act of misconduct moves you further along toward terminations ultimately so you ultimately reach terminations at the end of that process and what happens is the charge nurse writes up the misconduct prepares the foreman says you know the c n a did not do such and such turns that in to the director of nursing or the assistant assistant director of nursing and the charge nurse doesn't know where in that process of progressive discipline the c n a is because the charge nurse doesn't have access to all of the  sustain what's happened here they're making the exact arguments that were made in the springfield case wait to see what does the record reflect about what happened in the instances where the witnesses who testified the charge nurses rode up the person who had committed a violation what happened did it get ignored what happened now without exception the testimony from both the director of nursing and the h r manager was that without exception it moved the personal along the progressive discipline system one more step without exception so that clearly is disciplined arguments have been made in springfield as well as here that that that's not disciplined but the court previously has rejected the fact that simply because somebody is not terminated that an act is not a this court has reversed on the issue of charge nurses in published opinions and more in unpublished opinions one of the other arguments that the government makes with respect we're not counting  and there's other cases to write it but it is worth noting i think that while deference is generally paid in the area these charge nurses this court and other courts have not been reluctant  to overturn what the board has done one of the other arguments that the board makes is that the charge nurses don't sign the disciplinary form but if you go back to springfield and look at the facts there that was the case there as well the court in springfield noted that in fact sometimes let me back up in this case the argument was that the charge nurses do not alone sign the disciplinary forms they do cite it but another higher up supervisor also signs it in springfield the facts were even worse for the employer because in fact sometimes the charge nurses did not sign the form at all and yet they were found to be supervisors because of the discipline issue notwithstanding  correct and the final issue that the board has raised in connection is similar to what it has done in argued in springfield is the reinvestigation issue and that's one that judge merit you addressed in the dissent because in fact the evidence there was that basically nothing happened according to your dissenting opinion to the process and in fact here there is no reinvestigation the evidence is clear on that and the process is always followed and as i indicated the process that the progressive discipline process is always moved forward as a result of each of these disciplinary forms thank you the disciplinary form that the nurses the charter says completed in springfield in and of itself constituted discipline it was and it was these first step of the him lawyers disciplinary pop progressive disciplinary program in springfield so the the form itself while bears certainly some similarities to the form here but what's different is is the incident report that the or the e p would call an incident report that the nurses in at lake point complete is not part of the disciplinary process so in that respect it puts this case closer to frenchtown how he or how was it the form itself disciplining the barracks of the other such chances short so the nurse the chargers completed the form identified the misconduct and then that constituted a written warning that en itself that form signed by the charge nurse went into the file they identified whether it was a more serious violation or there are two different categories i think in that case and of the lesser offenses then the category that less serious offens that was your first warning of which you got four before terminations so in the course of twelve months full written warnings would result in it would trigger an investigation that but the court in springfield talked about how it moved you along in the you know step by step process it's it did because that's the first step in the sense that you now have discipline in your file that written it constitute a written warning you know this is assuming the lesser offense is that different from the present situation present situation is that there's a if there's no there's an investigation after the form is completed and there's no it that the form itself does not constitute the discipline it doesn't put you on at step one of the process where you get four letters and you're out it initiate it draws to management's attention that there was an incident and then there is an investigation and i would say that  four instances that people have time where there is the incident report and then we know what happened and we have the testimony from the director of nursing in the administrator and then you have the charge nurses back up before we get to the documentarians because i think that's a major problem at the effect of the nurses actions here as opposed to an investigation issue just so you absolutely i put that in the bill then i'll get straight to that i would in every instance it had this effect of escalating right that the vets orde says that that's not part of the  disciplinary process that it's not enough itself without further investigation which is what but that's a separate issue so that if this is the best this is frenchtown i would submit the board's admits that this is frenchtown there's no difference the reporting forms that were completed in frenchtown also put people on the path toward some sort of investigation to determine whether the reported conduct would lead to a personal action by management the mere fact that there has been a report to management i would suggest is not that then that m lead you into the process of discipline that that is not the holding of springfield springfield's the only way that it can be squared with frenchtown is that the form itself in springfield was the discipline the charge nurses in springfield presented the form to the nurses if if the record shows that in every instance the more senior people at late point relied on the nurses right up to escalate the disciplinary process i mean doesn't that satisfy the standard if that is an accurate characterization i know you would disagree with it but if that's an accurate characterization doesn't that satisfy the standard knocks i still think i still submit that that would be what frenchtown is that you have a conduit of information from the charging arses but that the charge nurses themselves have not needed out the discipline they have not written that effectively recommending discipline no in fact the nurses here the church nurses testified they had no idea whatever happened so i think it's a stretch to say that somebody has exercised the authority to effectively recommend discipline when several of those people who were saying you were effectively recommending discipline said i have no idea what happened why when they write it up instead of just talking to them if they had no idea that this could have any effect in the disciplinary process i don't know that any of the chargers a spoke to  report something because it may have been more serious doesn't necessarily again put us in that they have a effectively recommended discipline so much as they're drawing attention to the fact that well i saw the nurse smith do this last week i talked to her and she didn't do it maybe somebody else needs to speak with her because she's not she didn't take my advice pressure i got of the record was a rather more serious decision and that they knew it and that it wasn't this all i just noticed this you know it's sort of an don and the administrator saying they this is discipline you have the charge nurse is saying i had no idea i wrote it up if i saw something i could choose and as judge cut that pointed out perhaps in the more serious instances they chose to write something as opposed to speak with somebody but at the end of the day what they wrote up they didn't know what happened with it it went up the four instances that are in the record so i think we should remember that there was no testimony in there's no evidence that every single time that enormous nurse reported on this form that it resulted in discipline we know that of the four in instances that are in the record that discipline resulted from that there are other ways to get discipline or is this a necessary part of this larry i assume that there have to be other ways to being to it's not in the record that soon because it was unusual i think for the nurse because there was no reporting mechanism anymore for the specific category of offenses though the category one or the category two so i think  that all the charge nurses are doing is passing along information at their ass by management to by us by as a loan to a process to look at the information this is the first notice of the information so that the process can start looking at the information to see that type of information we should charge nurses or asked to pass a law to the process to then takes place of that which initiate or is the first stage by the the question yes and the board has answered that and said it was their burden to show that that constituted discipline in order to take these employees out from the protection of the act the board said this was your burden doesn't have to be dis can be effectively recommending this absolutely and again i would go back absolutely that's part of the test for discipline and i would go back to the charge nurses who said we help or to the argument that's made in the brief on the basis of the charges this testimony how c they effectively be making a recommendation for discipline if it wants completing the form they had no further involvement they didn't know what happened at the end of the day with that so i think that it's putting the cart before the horse than to knew was it was a written warning the the discipline in springfield was the written warning itself that was the discipline you had a written warning in your file once you cumulated to many of the course of twelve months you were subject to terminations based on i think the the fourth i think the fourth warning triggered in investigations you before that was filed have a different question juries forms be filed for instance fellow c n a i'm sorry i don't know the answer to that i don't know if it's not in the records just like you know i'm in the hospital and i see bad things happening and i put the slip down that would be notice certainly whether because the question becomes whether i certainly don't think there's anything to prevent if no then the reason for no is because they're not supervising him they're just reporting about the right thing that if the answer were yes you would have a much stronger argument he would say this is just a report  maybe even a patient could fill it out you know and i think a big part of the answer is it's not in the record again but the guess whose birth it was on the employer to prove the case but on top of that there i guess one of the suggestions could be that the that the forms are only made available to the charge nurses i don't know that the c i don't i don't know more about that but to the extent that there was forms available to certain people at the at the desk i said i don't know but you're right if it was available for anybody to fill out or me visiting somebody at the home it would be dipped certainly a different set of facts as to whether this is discipline and so on what about sort of the other fact in this case which is that a couple of the charge nurses receive lesser paying creases because their i guess you know h r right up said that they did not do as effective a job i don't want to use the loaded word supervising i forget the word a a director thank you on the record i mean does that suggest that you know put this in a certain light that these disciplinary forms are in fact direction directing discipline no i don't think that i don't think it changes this i don't think it changes the perspective of the forms themselves because i think as it related to the failure i think the specific example i think there were ten other sort of failures for reasons why a particular nurse didn't get a promotion or pay increase right and that so that has nothing to do i would submit that that doesn't have anything to do with the with the discipline itself so much as the nerve the chargers have the responsibility for instance there's some sort of wish i could have actually seen the hospital understand how this works there's some sort of computer system at the front desk that will doing if certain tasks haven't been completed by particular times everybody has an assignment sheet thing the scene is need to do for every patient and so i think that that charge nurses were held responsible then for ensuring that if that light goes and if they've been told or then there's now an indication and people know that there's a particular task that hasn't been done that they would be responsible for telling the charge nurse hey patient in room one o four hasn't had this particular you know hasn't been changed today or something like that so you could get dings on your evaluation for not being able to do that task well so i'm not sure that the failure to director of the failure to direct  but she didn't direct well enough to get the raise has more to do with ensuring that the hospital or the facility rather is running as it's supposed to run and people are doing the things that they need to do it w with respect to discipline that that particular performance appraisal really bears on discipline to the extent though that the argument is that it bears on responsibly directing because they're held accountable we rely on what we write in our brief which is that's not me being held to that is not a charge nurse rather being held accountable for the failures of people she's purportedly supervising it's failure for her own inability to do with the job that she is supposed to do which is to make sure that people are doing what they are supposed to be doing consistent with the assignment sheets the computer and system doing does not automatically start the process because the charge nurse has to decide whether the charge nurse is going to talk to the person ignore it completely talk to the c n a informally which does not constitute discipline or write it up in the disciplinary form once they write it up in the disciplinary form it goes in the employee's personnel file it is the same as the springfield case is to be characterized as just and then anything to do with it doesn't that you're correct that not everything in a file is disciplined but this is disciplined the director of nursing mccauley and in the record one ninety nine two hundred and h r manager been in the record it to ninety two said this always is acted upon it always moves somebody up to the next step in the disciplinary process so it's so are you haven't shown that they're the training well the evidence in the record goes through the training that was provided to the charge nurses and that's very clear that the process is that the charge charge nurses issue the disciplinary forms and the charge nurse is know they're trained that when they issue the disciplinary form it's starting the disciplinary process very little that is does anything else start the disciplinary process and it's nothing in the record that says yes or no then anyone else can n they cannot i don't know where in the record that would be what i do know is that the record does address the training that is provided to this the charge nurses to initiate that process and get it started frenchtown in french town it is not comparable case in french town the charge nurses did not use a form that was part of the disciplinary process that's part of the findings of frenchtown a part of the reasoning for it in fact all that was provided was an in service training and what the director of the in frenchtown said the director of nursing from frenchtown said that that in service is not discipline so that testimony from everybody in that case is that the in services were not disciplined and therefore this court held that it was a communication between the charge nurse and the