supervisory employees of the hospital and for those reasons this court should remember key to the board so that it can reconsider its rulings i'd like to use my time today to discuss three of those erroneous rulings  the hearing officer is premature closure of the representation he's proceeding sat in the board's granting of the union's an authorized special appeal and third the board's refusal to hear as an affirmative defense the hospital's claim of proceeding being prematurely closed but hearing officer there the hospital sought to introduce evidence in the form of testimony of charge nurse excuse me registered nurses and how supervisors who are employees of the hospital a finding of supervisory status the board's case handling manual and rules and regulations require the board to develop a complete record in fact the representation manual that the board and its hearing officers follow actually literally states that hearing officers should turn to the two parties before the close of the hearing now ask if there's any other evidence that they would like to present in the case how far not only did not not take place and in fact the hospital requested the would have changed what it was in the original what the regional director relied on in finding supervisory status while the other supervisors would have been the charge nurses working at night with the regional director didn't really rely on this whole  don't know we don't know with a regional director would rely upon how to record and it i but i think i think it shows that well that that's what i'm asked that's a question i'm asking you so shows that they at union evidence about how supervisors didn't really play in the regional directors mind as it was on this record now if you had some killer new evidence they would have changed all the things the regional director did rely on that's what i'm asking for a proper of not just how we would like to respond to what the union said but here's the killer evidence we had that would have changed what the regional director did rely on that's how you have to show prejudice from any procedural error and i think the killer new evidence would have been testimony from the house supervisor themselves about the procedures that are foll switch talking about night shifts and weekends yes during those periods of time and how supervisors the next person down the supervisory chain is the charge of the offer of proof says we want to put on evidence because there's testimony in the record that the charge nurses don't consider themselves supervisors that night there was by the way also evidence in the record from the hospitals directors and managers that said there are supervisory procedures that the charge nurses are responsible for there's just no other proper other than what you're shown with on five thirty five is that proffer i think i'd point you to is there really was even worse than that i'm sorry five thirty three just said it would concern the testimony of the union's witnesses so that's when we asked for an offer proof and that's all that's all that was said right at the end that's the initial it was initially response initial response and then the guy rules and so then we get this on rican i'm asking you to reconsider so actually your offer of proof consists of it would concern the testimony of union witnesses and they know the writing or anything else that was put in to show what the evidence would have been put him no this is the offer i think it's specific as to charge nurses i think it's sufficiently specific because there is no burden on the hospital to present in this archy's hearing in fact that offer proof the burden is on the board to complete a full create create and collect a full record of the evidence and the prejudice results from the fact that the regional director in her decision and direction of election says i can't find supervisory status for two reasons first there's not sufficient evidence well obviously we sought to put in more evidence that would have error directly on supervisory status and second there are conflicts in the evidence and the regional director cites precedent that says when there's a conflict and i haven't ends i can't find supervisory status well if you had taken the additional information that would have been a listed by the hospital regarding supervisory status  the refuse to take evidence on the hospital's affirmative defense of supervisory taint which as you probably know from the record would rely upon some of the scene supervisory assertions the board's refusal to do that flies in the face of its own even if it is indeed the case that the same claim was made in the context of the charge and was dismissed by the general counsel here we have precisely that set of circumstances the board has not addressed why it didn't follow it hospital employees they are still very seamless know what they are i just don't know that i could say that they always have to have an active registered nurse certain condition or not it was a selection conducted for she had to stipulate at election agreement now and that's why that there is a board rule that would apply to the boards there's a special appeal that the work took and i'd like to take a moment even though my time to fire has just expired to discuss that special appeal the board granted in har the union special appeal which was filed thirty c six days after the regional directors hearing on objections issue and seven days before the hearing was to take place despite the fact that the board had no authority to despite the fact that the union authority in the form of a rule that didn't apply and despite the fact that the special appeal was clearly untimely this one more time foreclosed the hospital from the opportunity to litigate the supervisory status of the charge nurses and again the prejudice is clear a parking unit cannot exist that has the hospital's own supervisors and for all three of those reasons standing independently and also taken together it is necessary for this court to remain on this case to the board so that they can comply with their president comply with their rules and regulations and give the hospital the opportunity to deserves to live a supervisory status  evidence of the union put on and the answer seems to me well you should have been pressing enough to know what they were going to say and put that on your from the case is that normally how these records are created in the representation case hearing those hearings are not adversarial the company the employer goes first puts on evidence the union goes next time as he did here the hearing officer often asks are we done or does anyone have more evidence  is in fact what salem had said the hearing officer might well have allowed it and what sam said was that they wanted to put on evidence of the house supervisors duties and whether they were in fact the highest ranking put on our case it's an issue of the chain meaning the union attorney created and that is not an issue that actually goes to the supervisory status of the charge nurses if there's in fact a maintenance supervisor and do you over night at the hospital the fact that there there's a whole new theory of the union brings up we would like a chance to respond to it but that was not the union scary the unions theory was that the charge nurses themselves were not supervisors that house supervisors whether or not they are supervisors doesn't necessarily affect the status of my supervisor also has a supervisor that make that does not make my supervisor not a supervisor want to probe those who had what responsibilities and they say they certainly took took from this the implication that house supervisors are there you don't need charge nurses to also be supervisors within the meaning of the national labor relations act i don't know why the hearing officer wouldn't just let them respond to evidence they've never had a chance to address that doesn't seem to fit the role of letting in all relevant evidence because their witnesses and the use witnesses said exactly the same thing about how supervisors who salem's own witnesses said the house supervisors are the highest ranking people at the hospital when they are serving that supervisor but the chargers are the next layer supervisor just like you said there's a supervisor of a supervisor and you have to show that the charge nurse is actually has some supervisory duty do they assigned to the director they hired you they fired do they adjust grievances do they reward do they punish there was no evidence there's a hearing on the regional director found that under the kentucky river and open health care the charge nurses did not exercise one of those eleven  statutory supervisors whether the house supervisors who were stipulated supervisor salem agreed their supervisors there's no question that they were supervisors whether the house supervisors in fact were supervisors was not relevant the issue was whether the charge are regional director found on the basis of evidence provided by salem that those two nurses were in fact supervisors have to run that by the house supervisors some of them some of see those witnesses said you don't have to get the permission but you have to tell them some of them said you have to get the permission all of the charge in our society you have to get their permission this is the evidence that was presented that the regional director relied upon it's based on evidence that was presented by salem and evidence of presented by the union whether or not what exactly were the duties of the house who provides or whether they were supervisors at night witnesses anticipated to testify to at the representation case or is it because i'm not sure that they actually do have that right so no one would sail and put out its case wouldn't know what the going to say in the union would know it's going to say until i'm not it's not like discovery where you have a list of witnesses and you know exactly what's going to happen and i get your position straight that when the regional director said house supervisors are responsible for everything that happens at the hospital during the evening and overnight hours during the week that i weekends when they are generally the highest ranking officials on site did you say that both salem and the union presented witnesses to that what did you say supports that samsung witnesses testified that the house supervisors are in fact the highest ranking people at the hospital overnight and i mean they are in the organizational charts of the joint appendix they are lateral to the unit director's unit directors are the folks who run the surgical unit or run the emergency department unit i was there lateral to those people census can you call someone and i'm a least one of salem's witnesses said yes you have to talk to house supervisor before you can read the whole supervisor's aryans i don't know it's not enough it's not in the record they are at least in bother to wait for hospitals responsible for making their decision in this situation the board is the reason the union brought brought a special appeal notifying the board that sixteen that thirty six days is timely and asked and answered is a sufficient basis and appropriate case any time someone says very decided that that's an appropriate case for this special appeal and so appropriate we don't even need to wait for the other side  the board there was no reason to go back and look at supervisory status or supervisory taint when the reason director had affirmed by the board of the charge nurses were in fact supervisors a common for them to making special decisions without waiting for the other side to even file a brief response in cases like this where you're the i don't know that it's common but in cases like this where it's obvious that they've already decided all the issues and objections going through sixteen i don't think it would be unusual i'm sorry but you have a lot of negatives entirely fair what they had to say aloud because it was obvious that the board already when you said it's not uncommon so does that mean you have some instances you can cite to us in which they've done the same thing no sorry i don't know that it's common or uncommon i just know it's allowed me never seen it before i have not seen it isn't what is what i mean by timely i've ever done cases explain what it means to be timely or not nothing to your so they have legal standards here for these appeals and they have other cases explained appropriate elsewhere will that appropriate includes the sort of asked and answered argument that they made here i know that the board does not normally set for hearing questions that have already been answered in a pre election hearing the board would not after in objections the board would never hear a question that might very well be even when with that when they normally yank it out of a regional director who said i think i need a hearing like this is very different right they yanked it out of the regional directors hands after regional director said i need a hearing yes they did thirty six days and without any explanation without waiting for the other side to respond with an explanation that the questions have been asked so i do think the board answer cases like that there may be that they would probably be unpublished cases because these are not you if you cases they would be your board orders that are not so how can i know if there been more how can i know if in fact this is happened before that this is what the this is one of  you but under the board's procedures election of the time for election objections and election rejections hearings do not include issues that have been settled in a representation hearing they just never do i guess i'm just trying to add to the board made to it but it wasn't the regional director and so the board someone that said no regional director you can't hear this some the same thing as saying the board itself if the regional director had had the hearing and said you know what thank you we've come to a conclusion here we're done and then they try to peel off the board where we go please how many times we need to re litigate the same issue we're not going to entertain it with that and that different from what happened here once the newness of of court not much i mean they could have filed papers with the board asking for the board and actually i think they did file papers when they found a motion for reconsideration of the board's decision and the board denied so they did ask the board to reconsider its decision to grant you meet one point addressing premature closure of the record and one point addressing the special appeal with regard to the premature closing of the record counsel for the board insinuates that the witnesses said exactly the same thing have the unions attorney asking are you aware in your absence the house supervisor has told people charge nurses that they may not ask additional staff to work i e assignment to come into work and work and later on that s be the director says i don't have any idea because i'm the director of the unit and it's my expectation that the chargers have that authority and that is evidence of exactly why the house supervisors testimony would have been for this record especially where the board has a duty to take all the evidence make a complete record in weight of evidence and especially where the hospital was prejudiced by a conflict that was left existing in this record by the hearing officer and that's why it's so prejudicial in error the board's granting of the union special appeal is similarly prejudicial the board's counsel cites to the discretion of the board the difference or to give that abuse of discretion is not to be tolerated this and there's no explanation in the record below there is no explanation here today as to why this would be allowed or if it's ever been allowed in the past and piggybacking on that ever hear of the regional director errors as well because then she entered back into the proceedings to dismiss objections one through sixteen after the board has simply said they should not be sent for evidence set for evidentiary hearing and there's no explanation for why the regional director would then rely on that  relies on the board's order for the premise that the objections which she's previously set for hearing should actually be dismissed so the under you aren't disagreeing of the objections one through sixteen had had already been decided i do disagree with fatten for one thing their record was close prematurely which means that there were issues that were not enough that you would like to have a different record but that the issues had been decided well there but really no you're out of the borderline was that they were authority on nights and weekends that contradicted evidence put into the record record by the directors who said they did because an event hospital cannot be run by one supervisor acting alone the charge nurses are in the stand instead of the directors and managers of the units during those off chefs that's what makes the evidence so important and it's also why it's so important to the hospital that charge nurses who work weekends and are the second line of supervisors