Davis Memorial Goodwill Industries

National Labor Relations Board - Board Decisions

Sep 8, 1995

318 N.L.R.B. 1044 (N.L.R.B. 1995)

1044
318 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The election was held November 4, 1994, and the ballots were
impounded.
2 The Employer has requested oral argument. The request is denied
as the record and the briefs adequately present the issues and the po-
sitions of the parties.
3 The Employer, as an example of alleged errors in the Regional
Director’s decision, cites the finding that handicapped workers who
are incapable of referral to private industry are given priority as ele-
vator operators. Although elevator operators have been given training
as custodial employees, the record shows that not all are capable of
performing such duties on a regular basis. The sole witness at the
hearing, the Employer’s vice president for the contracts department,
testified that the Employer’s policy is to give handicapped individ-
uals who cannot do janitorial work preference as elevator operators
and gave as an example a man with a fused back who would never
be able to do janitorial work on a consistent basis. The witness also
testified that he did not know of any outside job opportunities for
elevator operators and the elevator operators are candidates for refer-
ral as ‘‘custodians.’’
4 The principal difference between the primary and secondary su-
pervisors is that a primary supervisor receives communications from
the Government and is in charge of paperwork.
Davis Memorial Goodwill Industries and District
Lodge 12, International Association of Machin-
ists and Aerospace Workers, AFL–CIO, Peti-
tioner. Case 5–RC–14090
September 8, 1995
DECISION ON REVIEW AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On October 7, 1994, the Regional Director issued a
Decision and Direction of Election (pertinent portions
are attached as an appendix) finding that the Employ-
er’s handicapped workers are employees included in
the unit and that the primary and secondary super-
visors are statutory supervisors. Pursuant to Section
102.67 of the National Labor Relations Board’s Rules
and Regulations, the Employer filed a timely request
for review. On November 4, 1994, the Board granted
the request for review with respect to the handicapped
workers’ employee status and the primary and second-
ary supervisors’ supervisory status. Both the Employer
and the Petitioner filed briefs on review.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the Regional Director’s
decision in light of the record and the briefs and has
decided to affirm the Regional Director’s finding that
the handicapped workers are statutory employees, but
to reverse the Regional Director’s finding that the pri-
mary and secondary supervisors are statutory super-
visors.2
1. The Petitioner seeks to represent a unit of handi-
capped and nonhandicapped workers employed at the
Employer’s project at the Bureau of Engraving and
Printing. We agree with the Regional Director for the
reasons stated in the attached portion of his decision
that the handicapped workers’ relationship with the
Employer is characterized by business considerations
more typical of service employment in the private sec-
tor, rather than rehabilitative treatment or therapy. In
adopting the Regional Director’s decision, we rely ad-
ditionally on Arkansas Lighthouse for the Blind, 284
NLRB 1214 (1987), enf. denied 851 F.2d 180 (8th Cir.
1988); Lighthouse for the Blind of Houston, 244
NLRB 1144 (1979), 248 NLRB 1366 (1980), enfd.
696 F.2d 399 (5th Cir. 1983); and Cincinnati Assn. for
the Blind, 235 NLRB 1448 (1978), 244 NLRB 1140
(1979), enfd. 672 F.2d 567 (6th Cir. 1982), cert. de-
nied 459 U.S. 835 (1982). In each of these cases the
Board found the handicapped workers were statutory
employees based on such factors as these employees
were subject to production standards and discipline, the
employer did not provide counseling or social services,
and the employer’s operation contemplated or resulted
in long-term employment for handicapped workers.
Here, the Employer’s handicapped workers are also
subject to productivity standards and discipline, are
provided only limited counseling services, and experi-
ence long periods of employment. Thus, we find that
the Employer’s workers are significantly more like the
handicapped workers in these three cases than the
handicapped workers in Goodwill Industries of Tide-
water, 304 NLRB 767 (1991), and Goodwill Industries
of Denver, 304 NLRB 764 (1991), which the Regional
Director correctly distinguished.3
2. Contrary to the Regional Director, we find that
the record fails to establish that the ‘‘primary and sec-
ondary supervisors’’ are statutory supervisors. The par-
ties stipulated that the program manager and the assist-
ant manager are statutory supervisors. The Employer
operates three shifts, 24 hours a day, 7 days a week.
The manager works the day shift and the assistant the
second shift, Monday through Friday. The nine pri-
mary and secondary supervisors are divided among the
shifts. The Employer contends they are nonsupervisory
leadpersons; the Petitioner contends they are statutory
supervisors.
The facts pertaining to the duties of the primary and
secondary supervisors, and others employed by the
Employer, are set forth in the attached decision. Brief-
ly stated, the primary and secondary supervisors4 gen-
erally do not perform unit work but will do so in
emergencies or to fill in for an absent employee. They
have no authority to hire, fire, suspend, reward, trans-
fer, lay off, or promote employees or effectively to
recommend such actions. The Regional Director found
that the primary and secondary supervisors have the
authority to assign and to responsibly direct employees
and to issue warnings. The record, however, fails to
1045DAVIS MEMORIAL GOODWILL INDUSTRIES
show that they use independent judgment in exercising
any such authority.
Work assignments are made in accord with the
cleaning program, which is generated by the Employ-
er’s contracts division and which is given to the
project managers. The managers relay the cleaning
program to the primary and secondary supervisors. The
cleaning program is based on the units of the building
to which the primary and secondary supervisors are as-
signed. The supervisor for a particular unit of the
building makes up a work list based on whoever
comes to work, and unless there is a problem or emer-
gency, the employees perform their preassigned duties.
Although the supervisor has the authority to tempo-
rarily reassign both handicapped and nonhandicapped
workers if there is a problem or an emergency, there
is no evidence that this occurs other than irregularly.
In any event, it is the contracting Bureau of Engraving
and Printing that instigates emergency reassignments.
The record shows, as an example, that in the case of
a burst pipe, the Bureau would request that a crew be
pulled to handle the problem. In addition, the primary
and secondary supervisors do not have authority to
refuse requests for time off. If an employee requests
time off, the primary or secondary supervisor merely
asks for and records the reason. If none is given, the
supervisor issues a warning slip. In these cir-
cumstances and in light of the routine nature of the
work, we conclude that the evidence fails to show that
the primary and secondary supervisors exercise inde-
pendent judgment in assigning employees.
There is limited, perfunctory testimony that the ma-
jority of the time spent by primary and secondary su-
pervisors is on directing employees. Generally, how-
ever, any such direction stems from the cleaning pro-
gram prepared by the contracts division. A supervisor
may work with a handicapped employee, who, on a
particular day, is not meeting performance expectations
by giving the employee ‘‘on hand show and tell’’ to
develop better proficiency in the job. Generally, how-
ever, the Employer’s policy is to have a less proficient
handicapped or nonhandicapped employee work close-
ly with a more experienced handicapped or nonhandi-
capped employee. Based on this limited evidence, we
find that the record fails to show that any direction
given employees by the primary and secondary super-
visors is responsible direction or that the direction re-
quires the exercise of independent judgment.
There is also limited testimony that primary and sec-
ondary supervisors have authority to issue warning
slips to both handicapped and nonhandicapped employ-
ees. The only examples given, however, were that a
supervisor would give a warning slip to an employee
who punched in late ‘‘if appropriate’’ and would issue
a warning slip if an employee gave no reason for re-
questing time off. There is no evidence that the pri-
mary and secondary supervisors make any rec-
ommendations in connection with warning slips. There
is, however, testimony that a warning slip is reviewed
by a manager who would decide whether to forward
it to the head of the contracts division. In light of the
evidence that a manager independently reviews warn-
ing slips and the lack of evidence that the warnings ad-
versely affect employees, we find that the record fails
to show that the primary and secondary supervisors’
issuance of warning slips constitutes effective dis-
cipline.
For these reasons, we find that the Petitioner has
failed to meet its burden to show that the primary and
secondary supervisors exercise supervisory authority
and shall include them in the unit.
Having found that the handicapped workers and the
primary and secondary supervisors are unit employees,
we shall remand this proceeding to the Regional Direc-
tor to take further appropriate action.
DIRECTION
The National Labor Relations Board remands this
proceeding to the Regional Director for Region 5 and
directs the Regional Director to open and count the
unit employees’ ballots, to prepare a tally of ballots,
and to issue the appropriate certification.
APPENDIX
Handicapped and nonhandicapped workers
Handicapped workers are referred to the Employer by
Maryland and Virginia vocational and rehabilitative services,
and other governmental and nongovernmental programs. The
Employer also receives both handicapped and nonhandi-
capped employees from the Department of Employment
Services. Referrals of handicapped workers are made to the
Employer’s rehabilitation services division, which performs
the intake, tests and evaluates the individual handicaps, and
tests employment potential. Nonhandicapped workers are
interviewed by the personnel division. Handicapped individ-
uals may undergo weeks, months, or in some cases years of
counseling in rehabilitation before being referred to the con-
tract division. This counseling covers such matters as apart-
ment living, punctuality, cleaning techniques, interacting ap-
propriately with staff, and taking instructions. The contract
division will not accept handicapped workers who, in the re-
habilitation counselor’s evaluation, are not capable of per-
forming at a level that is 75 percent of the productivity re-
quired of nonhandicapped workers cleaning 29,000 square
feet in an 8-hour shift.
The Employer has a full-time rehabilitation counselor who
has specialized training in counseling handicapped individ-
uals. This counselor visits the BEP site once a week, and
upon the request of handicapped workers, provides one-on-
one counseling. The counselor has access to workers’ files
and knowledge of their handicaps. The counselor does not
train workers in their BEP positions, but counsels them on
such matters as the importance of punctuality and personal
hygiene, personal finances and living accommodations, and
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
legal problems, and attempts to work with management to re-
solve job-related problems. The counselor does not see every
handicapped worker each week, in part, because the Em-
ployer operates three shifts. The record does not show how
many handicapped workers receive counseling, although
there is evidence that their requests for counseling are ‘‘quite
regular.’’
The employee handbook states under the heading, ‘‘Gen-
eral Employee Benefits, Job Placement,’’ that:
Usually, handicapped individuals are hired as shelter
workers by Goodwill on a temporary basis because em-
ployment in an outside industry is the ultimate goal.
Goodwill’s overall plan is to assist each handicapped
employee in finding a job in the Washington metropoli-
tan area by matching his/her abilities to work with the
requirements of the specific job.
Goodwill has a placement department with five placement
counselors who are responsible for identifying sources of
employment in private industry and placing handicapped
workers in such positions. All handicapped workers who
reach 85 percent efficiency will be referred to other jobs.
The amount of time handicapped workers work for the Em-
ployer varies. Some stay the entire term of the contract be-
tween the Employer and BEP before being referred to other
jobs. During the term of the Employer’s last contract with
BEP, handicapped workers were referred to private industry,
but the record failed to establish how many had been referred
since 1990 or to where they were referred.
To work at BEP, both handicapped and nonhandicapped
workers must complete government security clearance docu-
ments and receive government clearance. Once part of the
BEP work force, handicapped and nonhandicapped workers
perform the same type of cleaning and janitorial work, each
worker having a particular assignment. Handicapped and
nonhandicapped workers report to the same supervisors, wear
the same uniforms and name tags, and receive the same ben-
efits as set forth in the employee handbook.
Based on requirements set by the Department of Labor’s
(DOL’s) Wage Determination Act, nonhandicapped workers
are paid $6.74 per hour from the start of their employment.
Handicapped workers’ starting rate is $5 per hour, plus 89
cents per hour for health and welfare benefits, as required by
the DOL. Handicapped workers receive this starting rate until
their mandatory 6-month evaluation. From that point on, the
wage rate for a handicapped worker, except for elevator op-
erators, is adjusted based on the worker’s productivity com-
pared to that expected of a nonhandicapped worker. Thus, if
the handicapped worker completes 80 percent of the work
expected of a nonhandicapped employee, he will be paid 80
percent of $6.74. Handicapped workers are evaluated every
6 months, in April and October, by a rehabilitation coun-
selor. Each handicapped worker has a ‘‘written training pro-
gram’’ that is used in the evaluation process to assess the
worker’s progress. Contract Division Vice President
McIntosh signs off on these evaluations that are then placed
in the worker’s file. Nonhandicapped workers are evaluated
annually, on their anniversary dates, by Project Manager
Long or by a primary supervisor. Both handicapped and non-
handicapped workers are eligible for an awards program,
which may entitle them to a 50-cent-per-hour wage increase.
The Employer’s process requires that the employee hand-
book be distributed to every new worker. The worker then
signs an acknowledgment and the Handbook is placed in the
employee’s file. The handbook contains general personnel
policies, including work rules, and notifies employees of dis-
ciplinary actions the Employer intends to take for infractions
of these rules. The policies apply uniformly to handicapped
and nonhandicapped workers. Both groups of workers re-
ceive verbal and written warnings for work rule infractions.
Handicapped workers are allowed to work at their own pace
throughout their employment, but those who do not meet a
required 75-percent productivity standard will be additionally
counseled by the Employer’s supervisors on how to improve
performance.
Serious work rule infractions by a nonhandicapped worker
will lead to suspension, and ultimately to discharge. Handi-
capped workers whose performance does not improve
through supervisory counseling are referred to the rehabilita-
tion services division. The director for rehabilitation services
then evaluates the worker, decides the nature of help needed,
and ultimately decides whether to refer the worker to BEP
or to place them elsewhere. McIntosh testified that if the
manager of the rehabilitation services division ‘‘has given up
on’’ a handicapped worker, she may discharge or remove the
worker from the contract division, but not from Goodwill.
During the term of the Employer’s current contract with
BEP, some handicapped workers were referred to the reha-
bilitation division, but the record does not establish how
many.
There are approximately 27 elevator operator positions at
BEP. These positions are filled by handicapped workers. As
required by law, elevator operators are paid the full $6.74-
per-hour wage rate, and receive this amount even on the rare
occasions when they perform janitorial work. Unlike janitors,
elevator operators are required to receive a 15-minute break
every 8 hours. When asked how many handicapped workers
were elevator operators, McIntosh testified, ‘‘[I]t is our goal
for all of them to be . . . . The majority of them are. [I]t
is our policy that those that are incapable of doing the jani-
torial are given preference’’ for the elevator operator posi-
tions. Elevator operators are evaluated exclusively on actual
performance of the job, and not on their productivity.
Analysis and conclusion
In Goodwill of Denver, supra at 765, and Goodwill of
Tidewater, supra at 768, in making the determination wheth-
er individuals are employees within the meaning of Section
2(3) of the Act, the Board stated that:
[T]he Board examines the relationship between the non-
profit employer and its workers. When the relationship
is guided to a greater extent by business considerations
and may be characterized as a typical industrial rela-
tionship, statutory employee status has been found.
When the relationship is primarily rehabilitative and the
working conditions are not typical of private sector
working conditions, however, the Board has indicated it
will not find statutory employee status.
Applying this standard to the facts of this case, I find that
the handicapped workers are employees within the meaning
of Section 2(3) of the Act.
1047DAVIS MEMORIAL GOODWILL INDUSTRIES
The record shows that handicapped workers are required
to perform the same work as the nonhandicapped workers.
They share the same supervision, hours, and benefits, are
subject to the same work rules, receive substantially the same
wages, and are eligible for the same performance awards. Al-
though the Emplpoyer’s handicapped workers are referred to
the Employer by state and other agencies for training, coun-
seling, and eventual referral to private industry—as was the
case of the handicapped workers in Goodwill of Denver and
Goodwill of Tidewater—significant differences exist here
which militate toward finding their relationship is guided to
a greater extent by business rather than rehabilitative consid-
erations.
First, the Employer’s handicapped workers are subject to
the same disciplinary system as nonhandicapped workers.
Both handicapped and nonhandicapped workers may be
given verbal and written disciplinary warnings for infractions
of the Employer’s work rules. Second, just as nonhandi-
capped workers are subject to discharge for serious or re-
peated infractions of the Employer’s work rules, handicapped
workers are subject to transfer back to the rehabilitation serv-
ices division to determine whether additional counseling or
removal from the program is warranted. Further, although
handicapped workers are not held to the same level of pro-
duction as nonhandicapped workers, handicapped workers
must maintain at least 75-percent productivity for retention at
the BEP site.
As in the above-cited Goodwill cases, counseling and
training is available to the handicapped workers here as part
of the Employer’s long range objective of preparing the
workers for private, competitive jobs. The record however
fails to establish that such services are an active part of the
handicapped workers’ work environment. In this regard, the
handicapped workers are taught cleaning and janitorial skills
in rehabilitation services division, before referral to BEP.
Further, the only designated trainer at the BEP site is the
project director and he works the day shift when the least
number of workers are on the job. Similarly, the counselor
works only the day shift, is responsible for other contract op-
erations, and visits the BEP site only once a week for an
hour. The record does not establish that counseling is manda-
tory. To the contrary, the counseling is available at a work-
er’s request. Further, the record fails to establish that coun-
seling is a significant part of the day-to-day environment for
the majority of handicapped workers. In this regard, I note
there is very little record evidence showing how many handi-
capped workers request counseling or how often such re-
quests are made.
This case is also significantly different from the above-
cited Goodwill cases in that here, of the Employer’s 35 cur-
rent handicapped workers, about 27 function in the position
of elevator operator. Concerning this position, the Employ-
er’s acknowledged policy is that handicapped workers, in-
capable of referral to private industry, are given priority
placement as elevator operators. This fact strongly suggests
that the vast majority of the Employer’s handicapped work-
ers are retained for long periods of employment, thereby re-
ducing the number of openings for new referrals from the re-
habilitation services division. Such retention is typical of an
industrial, private, employment relationship. Also consistent
with private industry is the fact that no accommodation for
a handicap is associated with the elevator operator position.
Thus, elevator operators are paid the same as nonhandi-
capped workers, whether they are operating elevators or per-
forming janitorial work. Given the number of handicapped
workers holding elevator operator positions, their conceded
incapability of referral to private industry, and that there are
no productivity variances or allowances for elevator opera-
tors to accommodate their handicap, I find their positions in
the Employer’s work force are more akin to those in private
industry and are less rehabilitative in nature. Thus, although
the Employer has five job placement counselors, it appears
they are of limited service to the handicapped workers at the
BEP location.
In summary, I find that the handicapped workers’ relation-
ship with the Employer is characterized by business consid-
erations more typical of service employment in the private
sector, rather than rehabilitative treatment or therapy. I predi-
cate this finding on the record as a whole, but particularly
on the evidence of the similarities in the nature of discipline
for handicapped and nonhandicapped workers, the limited
use of counseling and training for handicapped workers while
at BEP, and the apparent permanence of many handicapped
workers in positions where pay is not linked to their handi-
caps. Accordingly, I conclude the Board’s decisions in Good-
will of Denver and Goodwill of Tidewater are distinguish-
able, and I find the handicapped workers are statutory em-
ployees eligible to vote in the election.
The status of the primary and secondary supervisors
The Employer operates three shifts. The day shift is 6:30
a.m. to 2:30 and has nine janitorial workers. The evening
shift is 2:30 p.m. to 11 p.m., and has 30 janitorial workers.
The night shift is midnight to 6 a.m., and has 13 janitorial
workers. On weekends the shifts have six, eight, and six jani-
tors, respectively. The project manager works the day shift.
The assistant manager works the second shift. The manager
and assistant manager supervise the primary and secondary
supervisors and are responsible for determining that instruc-
tions of the contract division vice president are implemented.
The nine primary and secondary supervisors are divided
among the shifts: the lowest ratio is 6 to 1, the highest ratio
is 13 or 15 to 1. Pursuant to government regulation, one pri-
mary supervisor on each shift is designated to interact with
the customer, BEP, and is responsible for signing inspection
forms and responding to cover emergency situations such as
cleaning up after a water pipe break.
The employee handbook contains an ‘‘Employee classi-
fication’’ that includes the project manager and the assistant
manager as ‘‘Level I Staff Employees’’; the primary and sec-
ondary supervisors as ‘‘Level II Service Employees’’; and
the shelter workers a ‘‘Level III Shelter Worker[s].’’ The
employee handbook also contains a grievance procedure that
is followed at BEP for all workers. This procedure sets out
a three-step process. Step one is a meeting with the employ-
ee’s immediate supervisor. Step two rests with the vice presi-
dent of the department or the president. The final step rests
with the personnel director who is required to form a com-
mittee composed of management and employees to resolve
the dispute. Contract Division Vice President McIntosh said
that supervisors do not have the authority to resolve em-
ployee complaints, but if two employees have a disagreement
about a work assignment, the supervisor present can resolve
it.
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the basis of a BEP requirement, supervisors wear a dif-
ferent uniform to distinguish them from the janitorial work-
ers. Although supervisors’ smocks at one time contained the
title ‘‘supervisor,’’ that is no longer the case. Primary and
secondary supervisors are paid 15 percent above the $6.74-
per-hour wage rate paid the nonhandicapped workers and the
elevator operators. The supervisors receive the same overtime
pay, benefits, and vacation and holiday schedule as other
workers.
Supervisors attend supervisory training with the project
manager. Other workers do not attend these meetings. Nei-
ther managers nor supervisors have the authority to hire or
fire workers, or effectively recommend such action. Super-
visors do not have the authority to suspend, transfer, or pro-
mote workers. The project manager would recommend sus-
pension based on the reports of the supervisors, but McIntosh
alone has the ultimate authority to suspend workers. Super-
visors do not grant performance awards. Such awards are
made by McIntosh on the recommendation of the project
manager. Supervisors do have the authority to issue warnings
to both handicapped and nonhandicapped workers based on
the Employer’s work rules. Warnings issued by supervisors
are used in evaluating employee performance.
Supervisors are assigned particular areas at BEP, prepare
work lists based on the requirements of the Employer’s con-
tract with BEP, direct work, and temporarily reassign work-
ers when necessary. Supervisors orient new workers, enforce
safety programs, provide instruction on operating elevators,
and assist workers in developing better proficiency. In an
emergency, a supervisor might fill in for an absent employee
and use cleaning equipment or run an elevator, but the super-
visor’s time is routinely spent directing the work of others.
Supervisors review timecards that are then turned into pay-
roll by the project manager. Supervisors have the independ-
ent authority to issue written warnings for late arrival of
handicapped and nonhandicapped workers. Workers call in
sick to a supervisor, but the project manager has the author-
ity to approve sick leave. If a reduction in force were nec-
essary, McIntosh would decide whom to lay off. The project
manager or a primary supervisor writes the evaluations of
nonhandicapped workers. If the worker is on a different shift
from the project manager, the project manager will base his
evaluation on reports from the worker’s primary supervisor.
Analysis and conclusion
I find, as stipulated by the parties, that the project manager
and the assistant project manager are supervisors within the
meaning of Section 2(3) of the Act. I further find that the
primary and secondary supervisors are supervisors within the
meaning of Section 2(11) the Act. Accordingly, the program
manager, the assistant program manager, and the primary and
secondary supervisors are excluded from the unit.
In determining whether a person is a statutory supervisor,
the Board holds that a person must possess, only one of the
specific responsibilities listed in Section 2(11). Applying
Section 2(11) to the duties and responsibilities of any given
person requires that the Board determine whether the person
in question has authority to use independent judgment on
matters that are less than routine in performing any of the
functions listed in Section 2(11) and to do so in the interest
of management. Hydro Conduit Corp., 254 NLRB 433, 437
(1981); Clark Machine Corp., 308 NLRB 555 (1992). In ad-
dition, the party seeking to exclude an individual from voting
for a collective-bargaining representative has the burden of
establishing that the individual is ineligible to vote. Golden
Fan Inn, 281 NLRB 226, 229–230 fn. 12 (1986). As stated
in Ohio Masonic Home, 295 NLRB 390, 393 (1989): ‘‘in
representation proceedings such as this, the burden of prov-
ing that an individual is a supervisor rests on the party alleg-
ing that supervisory status exists. Tucson Gas & Electric Co.,
241 NLRB 181 (1979).’’ Accord: Dickinson-Iron Agency,
283 NLRB 1029, 1034 (1987). Furthermore, ‘‘whenever the
evidence is in conflict or otherwise inconclusive on particular
indicia of supervisory authority, [the Board] will find that su-
pervisory status has not been established, at least on the basis
of those indicia.’’ Phelps Community Medical Center, 295
NLRB 486, 490 (1989).
Primary and secondary supervisors have the independent
authority to issue verbal and written warnings to workers for
infractions of the Employer’s work rules, and these warnings
are relied on by the project manager in evaluating worker
performance. Except in emergency situations, supervisors di-
rect, rather than perform, unit work. While cleaning assign-
ments are generally routine, the record establishes that the
primary and secondary supervisors responsibly assign and di-
rect the workers in the performance of their duties, orient
new workers, and implement safety procedures. The super-
visors are also called on to use discretion and independent
judgment regarding the reassigning work as the need arises,
inspecting work performance, and instructing workers on
ways to improve their performance. Additionally, supervisors
wear uniforms different from those worn by other workers,
and are paid a rate 15 percent higher than other workers.
Further, although individuals are designated primary and sec-
ondary supervisors, the only distinction between these des-
ignations is that primary supervisors have the additional re-
sponsibility of serving as the Employer’s liaison with BEP,
and in many instances, of preparing written evaluations for
the nonhandicapped workers. Moreover, several supervisors
work their crews at night when the project manager and the
assistant project manager are not present to direct work.
Thus, if the primary and secondary supervisors were in the
unit, this would leave only the project manager and the as-
sistant project manager—2 stipulated supervisors—to direct a
work force of 60 employees, resulting in a supervisor-to-em-
ployee ratio of 1 to 30. Particularly in light of the high per-
centage of handicapped workers in the Employer’s work
force at BEP, I find this ratio is unreasonable. See Garney
Morris, Inc., 313 NLRB 101, 114 (1993); Northcrest Nursing
Home, 313 NLRB 491, 498–499 (1993).
I find, rather, that the primary and secondary supervisors
exercise independent judgment and discretion, in the interest
of the Employer, and that they are supervisors within the
meaning of Section 2(11). Accordingly, they are excluded
from the unit and ineligible to vote.