a note for the piano i initially indicated that mr taylor for the intervenor was going to defer his argument time to the n l r b they are now dividing their time eleven minutes in four minutes they don't need to show every element and they don't need to show every element plus a footnote now in this case it's our position that the national evolutions or disregarded substantial evidence in the record made a determination that was not supported by competent evidence when the case was originally heard before the national relations board to wrote supervisors testified and just by way of background trends those services provide contract services so that per transit transportation can occur means and they provided extensive other but it uncontested testimony that they issue various actions and reports that are disciplinary in nature but to union contracts to which they supervis which employees are covered by the are supervised by them include both the mother made a transit union contract as well as a teamster contract was two separate groups operating under the post supervisors and both of those union contracts are specific provisions that talk about an all or reprimand as the st start of a four part disciplinary process and that's the discipline mr jackson testified that he called upon  addition to that the parties had the opportunity to present evidence the employer is the only one that presented evidence on the reasons rector easily found that they were supervisors of the national evolutions that are before i forget who get in t want to file a letter then it's not really that helpful to read citations to s brother you want if you want to discuss the substance of the cases i guess we can hear you on that although we want to read them because we didn't have notice understood both cases since we are similar cases where the north where relations parts rulings on supervisory status has been given the appropriate scrutiny just as this court doesn't beverley and both courts found universals should be own unique parts of the operators couldn't drive they had their own offices they had their own gaffes they had their own private areas at the office of an employer they had different uniforms and as the the step in the subsequent decision by the national they would go to an accident scene to make the finding as whether or not the accident was preventable that's just like a traffic ticket you get so many of those and you're going to lose your job and well we didn't have the case for to support it because the hearing eventually areas in the record were all supervisors testified that they could relieve a driver if they in their discretion find that the driver is not safe to proceed they could relieve that driver either  people to talk about how other cases lead to discipline or didn't the discipline well if you ever need to use moving the goalposts it may be impossible for any employer ever show to do the people who otherwise should be excluded from participation because of the conflict of interest associated with employer is a supervisor it doesn't take anything especially in cases involving alleged and fairly well practices in those cases the national relations work comes back and says oh you look like you have your pen and you have the parents  supervisor therefore you must be a supervisor we cite those cases in a brief in this case the all the once not only hold this to the standard of the section to eleven plus but they wanted to do in a fashion were both belt and suspenders now what do we have to prove that they are supervisory but you have to prove that they were hear from you good afternoon to the court i think just start by explaining what the standard is here because under the national labor relations act it's true that an employee is considered a a nd mr foster would you put your microphone on mute please while you're not speaking go ahead mr castle care this but discipline under the national labor relations act does not need what a lot of colloquially might call it discipline there is plenty of case law including from this court going back decades showing that a mere warning even if it's written is not considered discipline within the meaning of the act because i of itself a warning doesn't affect employees terms and conditions of employment and so to show discipline the employer has to show something more than that or the party stating that these lawyers are supervisors has to show something more than a m down an infraction that's not that's not what the question is the question is whether they are authority whether what they did counts as discipline under the n r a and here we only have one example in the record  a written report that oriel vice any kind of discipline the type of discipline that they were talking about and it's pretty clear from that example that this isn't discipline under the national labor relations act there's one road observation report in the record it's an observation report it has a checklist that goes through various things that could be done wrong the ha by the operator and it has a space for the root supervisor signature at the bottom it's merely a report and there's a long long line of precedent binding that your reportorial what the already is not supervisory in other words to be a supervisor you don't have you got it's not enough to just be the person who says ok this is my misconduct i'm going to write it down and put it in your file you also need to be the person you're dead decides what the punishment is going to be for that misconduct and here again we have just this one isolated example of a group of observation report and that just does not report and those on the accident report the route supervisor simply wrote down what the road supervisor thought happened there's no evidence for that or the broad observation report about what happened to be a four day after especially if there is no evidence about whether the road supervisor made any disciplinary record indications now after the fact it is possible for an employer to show through a progressive discipline policy  that there has to be no it is the union we have nothing like that for any of you for any road observation for pork or prevent ability determination there is no notice to the union that these are disciplined there's nothing to it there is no future there is no suspension or discharge  employee that mentions that road observation report there is no there is a written warning issued teddy employees that mentions any of these things and so the board recently concluded here that what we have shown is that there's a group of employees to or so where between the lines of employees and the people who decide what discipline is going to them they're the eyes and ears of the operation perhaps the road supervisors they go out on the roads and they report what is happening but they have no authority to foster's point that both surprise are said well we have the authority to discipline isn't really relevant here it's not their call whether they have that authority both of them clearly thought that merely writing down what an employee had testimony an arbitration hearing which st of all mr jackson the road supervisor who testified at an arbitration hearing also stated that that arbitration hearing was actually about a different employer and an employee who did not work for tran  so this is not something that that was the board discounted for that reason that had nothing to do with this case that it wasn't determined that that would be that the conditions of those road supervisors with the same as the one that trans nothing in this record indicates that the road supervisor was the one to determine that because that prevents ability issues with the road that the driver right issue would be discharged there's something about that all the road supervisor there was make the perfect perfect ability determination and presumably somebody else made the discharge decision there's also the testimony of the record from anybody about it that these two groups supervisors any higher authority to say ok these wro observation reports might say that they're just observation report but actually i read that is disciplined within the meeting and if there is a collective bargaining agreement there's nothing there so all we have to work on are these written and may also mention that there was quite a bit of static coming through your microphone and if you make another argument in another court you might want to test it and see if you can eliminate that i didn't want to interrupt you because we get you might want to examine that mr taylor will hear from you thank you may please the court your owners i appreciate the opportunity to argue today i have very brief remarks to make i think the record your honors i invite you to take a look at that page that when you have a moment if you lose cover a couple of things about the the instrument is mainly to read by just the driver that a report is being made that's clear and the substance of the report is what happened that's clear there is nowhere on the document that indicates to the driver that the driver's being disciplined there is some writing scrawled and on the bottom of the he exhibit and i remember this from the hearing because it was on the exhibit at the hearing it is in legible i could not tell what it was that went as couldn't tell what it was no one can tell me what t thing get to that minute let me let me close that and then go to the judge woman's question about the nature of this occupation your honor and i've practiced for a good bit of time in this area as this was counsel earlier alluded since motor coaches became the predominant form of transportation in the nation's cities replacing street cars during the nine hundred and fifty s the occupation of st supervisor or roads who provide here has been an important feature of these operations so one needs to be able to get quickly to locations where activity is going on be it an accident or delay or an alter cation or of a standoff the d something we're familiar with in washington d c from time to time and that and the these folks are sent dispatched to those locations to help restore order that's one of the things they do the other thing they do is they are spaced various places where the service is being provided and in this particular case these are transportation for the handicapped and elderly people so they're usually station places where they often go well spills shopping centers public buildings or else and they watch and observe what is happening as they come in that they also when a driver is new or is unsure how to operate they'll counsel and help the operator do what they're supposed to do ask them to buckle their seat belt they had it they direct them for example to put a call a little bit prefer the bottom or they may assist when they're there if a patron has difficulty getting on or getting off sometimes they're actually patrons and i don't want to go into the bunch about this but there are patrons who are you can imagine the judge woman indicated the problem of being a snitch if they came across as a snitch or somebody who was there to discipline or there to control they would not be able to do their job  they instead report what they observe and then supervision through supervision undertakes discipline that is expressed in the collective bargaining agreements themselves in their record at tw street supervisor in say one case it's the general and their peer in the other case is the general manager or designate and noticed asked to be sent to the union when there has been discipline if they're not spelled out in the collective bargaining but let me give you a quick sample to seventy one and i think this is the eighty you agree yes it's the eighty you agreement employees they shall include corrective in again just through the disciplinary process all it in a all disciplinary process shall be performed by the general manager or their designate that's how an employee knows they're being disciplined in the parties have agreed to that that was the this was an employer exhibit and there's no indication that these road supervisors are designees is that your view never they have never been designated by the general manager or anybody else case regarding the proper classification of supervisors in washington d c in the surrounding areas litigated in the th circuit your corporation that has just business everywhere so they can take wherever they want for purposes of jurisdiction or venue or both that's  that it is sort of a finding that they have the authority to transfer it that's happened if it's circuit a couple times i know i don't i don't think there's really any publisher to indians discussing that at like that although yeah i think the only most four pages you'll see that includes the counseling of employees the telling of employees what their standard of behavior should be they also have the discretion to say look and given your counseling and it may not include a report that's going to go to the employee's file there's an abundant testimony that they know the reports did go to the employee's file that's in the record now what the unions are mr taylor and the n l r b may be arguing is well you didn't comply with the teamster grima are parts of the agreement that say that there has to be a report given to the employee it doesn't say by the road supervisor that cloak over function of then turning discipline into a report to the union or to the employee is a clerical function contained in the collective bargaining agreement the road supervisors discussion with the employee discipline at the verbal coach helps when and verbal reprimand that's the st step in the progress of discipline process that way when the union argues that the employee hasn't had due process when he or she is later terminated her suspended or are in any other way treated different leave than they want to be the employer can say well you were in fact even coaching counseling by the road supervisor on  that st day that was the st step in the progress of discipline policy and then after that we had multiple reports that you continued to disregard your coaching and counseling by your own supervisor which led your suspension of distrust that's how progressive discipline works that's how the union wants it to work and there's nothing more complicated and there's nothing more to it than that the rote supervisor has the authority the roads revisers testify they have the authority those supervisors testify that people recognize them as roa budget there's no other evidence was the man into a broad and paper on top of what the road supervisors testified to makes no sense again it's belt and suspenders we proved by the road supervisors testimony that their supervisor in nature that they meet the standards section two of them imposed that if i bring in paper all it's going to do is create ten more days of hearings to show how did this piece of paper get there how did it not get there what happened this piece of paper and it simply complicates the record and this is fairly there was ample testimony substantial testimony on the record that there were supervisory and the regional director who does this for a living every day day in day out got it he found that they were supervisors it was only upon the unions appeal to the national relations board that somehow the board went through some softness redefines that they were in fact not supervisors but something else well if you look at number miss directing them to do something correctly you know all the doing it incorrectly but doing it correctly notice to the union therefore after in this discipline context of the contract is a clerical function that row supervisor gets the point across when he well but they have a function a large function where they transport students parents vendors for washington university here in st louis and they also provide ancillary charter service beyond that and that's a large operation that they haven't seen with us and that became the basis for doing it here because it meets the board's requirement so long as you're doing business within that circuit within that area you can probably request what about our car you'd transferred to a strip we think it's unrelated to our circuit well it isn't unrelated to your circuit because it's a question of the board's in apple core application wrongful application of a standard this is a statute that covers the entire country and each circuit has a role in making sure that the board is correctly guided on following the statute that is supposed to be enforced and if there is there is no reason to punt it there's no reason to send it elsewhere if the case can be heard his can be resolved here as so form shopping you're on a well if i was it i mean you maybe that wasn't your mindset here but i think that's what you're saying that if you think you've got a better chance in a certain circuit if you're a national company you can take a case from florida and bring the suit in new york or where you want does that audit is that the impetus is that the implication of the argument i don't believe so but if that's the that parties are gorm shopping and bringing cases in places that are totally unrelated to the i'm going to spew we all believe that's appropriate given the history of the cases being heard throughout the united states evolutions that covers our country short a short it covers every state every jurisdiction and should more what court of appeals the issues raised in every cause appeals has the obligation to keep the nationally relations board on the right path all right well look at that i do think there's some authority from other circuits that or other circuits claim authority to transfer cases in this area similar appeals were in the d c and there was a lot of back and forth about that about how to balance them geographically make them more local i don't remember what the outcome is your honor i'm sorry this is the st this issue has come up  but i'd like to take a hack at it and see what i can find out about the outcome it seems like the d c circuit itself did something to ringback help ameliorate the problem but if i may check it out as well if i could have an opportunity  business but there's i think still remaining question whether court has to always accept a case or are there transfer might be appropriate in certain circumstances anyway mr foster i'll do it very very quickly week or so oh you mean you want to send us something in writing is that the question that's right but i'm not looking to address the  well i don't want to leave it at that if the court wants to hear from the parties on that will enter an order inviting anything for others who aren't and if you don't hear from us you can just assume the submitted on the present record very well thank you to all three you gentlemen for your arguments today submitted and the court will file an opinion