there is that i'm it's my belief that you know that ordinarily we don't put record cites for the fact repetition of the facts that were in the statement of facts and there's the the page facts are only like neither ten pages facts and the exhibits were twenty exhibits but about only one of them refer i've also put in my brief and there's been objection to it and development happened later i just made a reference to the davis case we don't have to go into any of the arguments because it's a moot point now in the sense that  standard should be and asked in the p s a option to case i tempted i tempted in the same way the port in both those cases to state here's the standard standards gash i have whether or not it's which are not the standards required under the law which are not the standard and this is the same thing this is in the words  that the same union the same way ellerby ok the three they know this court said well you don't have to exercise you have to formulate policy at all you don't have to fight have the are they still in this case this case they still maintain basically that we have to prove our whole case prove that we would prevail before we have a right and just like the other thing we raise is we're requiring specific evidence just to suit employee i mean that's a that's truly just the wrong way of looking at things because someone may be a simply because those are duties that somehow makes me a confidential employee because i represent somebody it used to be regarded discrimination it's well that representation  you had initially you had eight employees who were petition to become part of the park three of those were excluded by agreement because they were labor relations council it were directly involved in the collective bargaining process it worked  davis because there was specific evidence in the records that suggested that she simply wasn't in ministering the law but she was actively involved with labor relations council on resolving an issue that was adverse to th so the board wasn't simply allowing every member of the proposed bargaining unit should join the board was looking at it on the night in play by play basis in deciding whether or not there was sufficient evidence offered the documents beyond my job description in a performance review relates in this davis and i think that shows that's one of the reasons i think the board warranted but a hearing was warranted in her case because there is there was more than simply a job description that suggested things like you know reviewing documents or performing basic will duties is suggested that she was actively involved in the resolution of a case to which the union was adverse you contrast that to the evidence offered for the other two allegedly confidential ways in the case of miss o'connell it is true that she has the same general job responsibility and she reports the supervisor but the supervisor mr shockley's here today he's not a believer relations there on the personnel side or the labor relations counsel or other individuals that ms davis was working on in show that she's not so they may have the same general job description but the way that they're performing their job is different things that they're being tasked with this different than the actual evidence that was sufficient to warrant or an oral hearing basically said in describing duties he could envision where maybe the employee was going to a confidential capacity maybe a marriage bit or vice versa maybe not so why not appear to be a just m since well why many hearing there is there is a cost to a hearing and so the or the statute and then the courts rules implementing the act acquire reasonable cause you could imagine a system in which you know you would grant a hearing in every case but the cost both in terms to the agency to the parties and also of the delay in allowing workers who achieve through the union so the act allows the court to strike a balance by saying an o hearings are not required in every case the courts allowed to set rules that sort of rule reasonable up so there has to be a showing beyond some sort of possibly maybe if we got to a hearing stage they could bring forth additional evidence that courts rules are imagine the civil justice system in every case had to trial there were no devices such as two six one five or six or nine or summary judgement to dispense with cases about the cost of trial you know the civil justice system right all the costs to the parties to the public from the mystery that would arise and so you have to have some kind of balance between the amount of evidence you need to get in to an oral hearing and also you know the evidence and they made specific arguments not simply listening hey job responsibilities or said yes that is reasonable cause we'll go ahead and grant to hearing on this and but on the other employees the allegations were either evidence was offered by c m s in each of those cases i'd like to begin with the two managerial employees because i believe that those are the two where that evidence was it was extremely the first advise other agencies on legal matters they might draft legislation or elations for review approval by their superiors those are the kinds of things that of lawyers do it base so we have a number of lawyers that are  exercising any of the kinds of three sources he's not involved in running the enterprise and he's not a trusted adviser of someone who runs the enterprise he's simply a lawyer who does the work that's a sign him  superiors carries it out so she's the only thing that they raise that could arguably be managerial that he does i think if you look at the evidence and the record it supports the board's finding this out for example they claim that he does protest review work and that it's a manager well there's two protests letters in the record on that allegedly shows material and one of those letters the simply timeliness of you know basically that the department he says the federal mailbox will instead of the rule that was proposed by the protester and also that he consulted with the agency and the agency that the bit specifications so if you look at the specific evidence that they submitted that that they claim shows that he was a managerial employee you'll see that it shows that he's simply you know applying a limited stimulus program but again there's nothing saying here that he's doing anything more than what ordinary lawyer would do or asking his opinion on what the statute needs city provides you know an opinion of the statute they're asking him for an opinion of whether or not you know the state's rules and regulations for why with the structure he's providing them any that's just you know general lawyer work that's not the type of work that you would associate with a manager i see that my time a subordinate nature working under the authority of others to deal with property leases but in accordance with state policy in practice but not to make policy or even effectively recommend policy access to personnel files hiring recommendations discipline problems evaluations those things are insufficient to render someone confidential that occasional irregular potential access to collector partly tiriel is also insufficient this court so found in school principals who have knowledge may have not had the time of people being disciplined but that's insufficient to make them confidential because they aren't involved in any way collective bargaining or they don't authorize the access to collective bargaining and the whole purpose of the what part of any of this analysis does that play are the missile can was a member of a asked me if she knows i mean union loyalty and her interests perhaps as a member of this to make sure that the complaint is treated fierro one would hope that those two coincide but there is the problem of divided loyalty i think not i guess my general what you know is this a healthy state of prayers and does that play any part shouldn't be part of it now says because it's not currently a statutory exclusion it's not within the narrow confidential exclusion it's a it's a marcus argument general conflict of interest yeah and all the case size has the fact that someone may have access to