MCAR, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 2001

333 N.L.R.B. 1098 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
MCAR, Inc. and American Federation of State,
County and Municipal Employees, District
Council 85, AFL–CIO. Case 6–CA–30300
April 24, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On January 13, 2000, Administrative Law Judge Mar-
tin J. Linsky issued the attached bench decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, MCAR,
Inc., Hermitage, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Refusing to bargain in good faith with the Ameri-
can Federation of State, County and Municipal Employ-
ees, District Council 85, AFL–CIO, as the exclusive bar-
gaining representative of the employees in the bargaining
unit described below, as clarified by the decision in Case
6–UC–397 to include the position of production techni-
cian:

All full-time and regular part-time nonprofessional em-
ployees, including Accounts Receivable/Payable Tech-
nicians, Crew Leaders, Drivers, Fiscal Assistants, Floor
Supervisors, Floor Supervisors II (Food Service, Furni-
ture Shop, Pallet Shop), In-Home Residential Aides,
Individual Specialized Program Implementers, Job
Coaches, Maintenance Technicians, OBRA Compan-
ions, Production Technician, Receptionists and Resi-
dential Workers, employed by the employer at its Her-
mitage, Pennsylvania and Greenville, Pennsylvania fa-
cilities; excluding all management employees, confi-
dential employees and guards, professional employees
and supervisors as defined by the Act.”

1 The judge concluded that the Board’s holding in the earlier unit
clarification proceeding, Case 6–UC–397, was res judicata in regard to
the issue of the Board’s jurisdiction over the Respondent. In that unit
clarification proceeding, Member Hurtgen dissented from the Board’s
denial of review of the Regional Director’s holding that the Board
should assert jurisdiction. He agrees, however, that nothing new has
been presented in this proceeding and accordingly, for institutional
reasons, he joins in the assertion of jurisdiction.
2 We shall modify the judge’s recommended Order to include a de-
scription of the bargaining unit. Also, in accordance with Excel Con-
tainer, Inc., 325 NLRB 17 (1997), we shall change the date in par. 2(b)
of the recommended Order from July 1, 1998, to January 18, 1999, the
approximate date of the unfair labor practice.

2. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its facility in Hermitage, Pennsylvania, copies of the at-
tached notice marked ‘Appendix D.’2 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 18,
1999.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain in good faith with
the American Federation of State, County and Municipal
Employees, District Council 85, AFL–CIO as the exclu-
sive bargaining representative of the employees in the
bargaining unit described below, which now includes the
333 NLRB No. 134
MCAR, INC. 1099
production technician position, pursuant to Case 6-UC-
397:
All full-time and regular part-time nonprofessional em-
ployees, including Accounts Receivable/Payable Tech-
nicians, Crew Leaders, Drivers, Fiscal Assistants, Floor
Supervisors, Floor Supervisors II (Food Service, Furni-
ture Shop, Pallet Shop), In-Home Residential Aides,
Individual Specialized Program Implementers, Job
Coaches, Maintenance Technicians, OBRA Compan-
ions, Production Technician, Receptionists and Resi-
dential Workers, employed by the employer at its Her-
mitage, Pennsylvania and Greenville, Pennsylvania fa-
cilities; excluding all management employees, confi-
dential employees and guards, professional employees
and supervisors as defined by the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request by the Union, bargain in good
faith concerning wages, hours, and other terms and con-
ditions of employment of the employees in the bargain-
ing unit which includes the position of production tech-
nician.

MCAR, INC.

Gerald McKinney, Esq., for the General Counsel.
Albert S. Lee, Esq., of Pittsburgh, Pennsylvania, for the Re-
spondent.
Eric M. Fink, Esq., of Philadelphia, Pennsylvania, for the
Charging Party.
BENCH DECISION AND CERTIFICATION
MARTIN J. LINSKY, Administrative Law Judge. This case
was tried in Youngstown, Ohio, on December 7, 1999. At the
conclusion of the trial and following oral argument by counsel
for the General Counsel, counsel for the Charging Party, and
counsel for Respondent, I issued a bench decision pursuant to
Section 102.35(a)(10) of the Board’s Rules and Regulations,
setting forth findings of fact and conclusions of law. In accor-
dance with Section 102.45 of the Board’s Rules and Regula-
tions, I certify the accuracy of, and attach hereto as “Appendix
A,” the portion of the transcript containing that decision. I have
corrected, sua sponte, certain obvious errors in the transcript.
As noted in my bench decision I will attach as “Appendix B”
the Regional Director’s Decision, Order, and Clarification of
Bargaining Unit in Case 6–UC–397, and as “Appendix C” the
Board’s Order denying review of the Regional Director’s deci-
sion in Case 6–UC–397. In addition, because the remedy, Or-
der, and notice to employees were delivered orally in summary
fashion, those sections of the bench decision shall be set forth
more fully below.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act, including the posting of a
notice to employees attached here as “Appendix D.”
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, MCAR, Inc., Hermitage, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the bargaining
unit represented by the Union as clarified by the decision in 6–
UC–397, i.e., the unit should include the position of production
technician.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request by the Union bargain in good faith with the
Union concerning hours, wages, and other terms and conditions
of employment of the employees in the clarified bargaining unit
which includes the position of production technician.
(b) Within 14 days after service by the Region post at its fa-
cility in Hermitage, Pennsylvania, and all places where notices
customarily are posted copies of the attached notice marked
“Appendix D.”2 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees customarily are posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that the Respondent has gone out of business
or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since July 1,1998.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses.
2 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice “Posted By Order Of The National
Labor Relations Board” shall read “Posted Pursuant To A Judgment Of
The United States Court Of Appeals Enforcing An Order Of The Na-
tional Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
APPENDIX A
83
JUDGE LINSKY: On the record. Okay. As I indicated, I
will be issuing a bench decision in this case. And I will reading
the decision into the record.
And then when I get the transcript, as you probably know the
routine, I will be certifying that part of the transcript which
contains my decision.
84
And I will be issuing an order, a notice in this case and an
order, and they will be more fully spelled out in the—in the
bench decision and certification order that I will be issuing.
And Counsel will be getting copies of that and of course will
have the right to take exception to it and go to the Board or let
it become final Board action and take it somewhere else if they
deem that appropriate.
Judge’s Bench Decision
In any event, on January 25th, 1999, and on March 24th,
1999, a charge and an amended charge were filed with Region
6 of the National Labor Relations Board in a case entitled 6–
CA–30300.
The Charging Party was The American Federation of State,
County and Municipal Employees, District Council Number 85,
AFL–CIO. The Charged Party or Respondent is MCAR, Inc.
On the 30th of April, 1999, The National Labor Relations
Board, by the Regional Director for Region 6, issued an
Amended Complaint, which I’ll refer to as the complaint, here-
after, which alleges that the Respondent, MCAR, Inc., violated
Section 8a-1 and 5 of the National Labor Relations Act by
unlawfully refusing a request to bargain with the Union con-
cerning a clarified unit of employees represented by the Union.
Okay. The Respondent, MCAR, at all material times, has
been a not-for-profit corporation with an office and facilities in
Hermitage, Pennsylvania, where it operates a community resi-
dential and rehabilitation services for mentally retarded and
developmentally disabled persons.
MCAR has admitted that it meets the financial jurisdictional
standards of the Board. In addition, the Respondent has admit-
ted that it’s an employer engaged in commerce within the
meaning of the Act and is a healthcare institution within the
meaning of the Act, and also has admitted that the Union is a
labor organization within the meaning of the Act.
However, the Respondent takes the position that the National
Labor Relations Board should not exercise jurisdiction over it
because
85
traditionally it has been that the Board has declined jurisdiction
and in addition the jurisdiction has been exercised, I guess, by
the Pennsylvania Labor Relations Board.
In any event, some time ago there was a petition to clarify a
unit of nonprofessional employees that worked for the Respon-
dent. And in connection with that Petition to Clarify the Unit,
there was a hearing held. And there was a decision issued by
the Regional Director for Region 6, in a case headed, Number
6–UC–397.
Sufficive to say, the Board in that case did two—the Region,
pardon me, did two things. It said that the Board would now
exercise jurisdiction over the Respondent, because there had
been a change in Board Law, and this is more fully spelled out
in the Regional Director’s decision which will be attached as an
appendix to my decision when I certify it to the Board.
In any event, and in addition, the Regional Director con-
cluded that the unit of nonprofessional employees that worked
for the Respondent should be clarified, changed, and that the
position of production technician should be added to the per-
sons in that unit.
The Respondent sought review of that decision by the—by
the Board, the National Labor Relations Board itself in Wash-
ington, D.C. And the Board affirmed—denied review, in affect
affirming the decision of the Regional Director.
The Regional Director’s Decision was dated on September
11th, 1998, which said that the Board would assert jurisdiction
and that the production technician should be in the nonprofes-
sional unit of employees represented by the Union who work
for Respondent.
And the Board’s decision, with one member dissenting, is
dated October 28, 1998. And the majority of the Board af-
firmed the decision of the Region.
We were here today for a hearing. Essentially we had four
witnesses. For the General Counsel, Sheila Doddo and Ed
Scurry testified. I found both Ms. Doddo and Mr. Scurry to be
very credible witnesses. And I credit their testimony in its
entirety.
86
The Respondent had two witnesses also. And Mr. Robert
Beach and Mr. David Ferand. Robert Beach being the CEO of
the Respondent, and David Ferand being the individual who
actually occupies the position of production technician. I found
both of those witnesses to be very credible and honest as well.
So with respect to whether or not there were any major
credibility differences, I don’t think there were. I think I found
all four witnesses to be extremely honest and forthcoming and
candid. Now that doesn’t mean I agree with every conclusion
that they may want me to draw, I don’t. But I found all four
credible.
Sufficive to say, after the unit was clarified by the Regional
Director’s Decision, affirmed by the Board, the Union made a
request to bargain with the unit as clarified, namely to bargain
about the production technician.
Requests to bargain were made by Ms. Doddo on January the
8th, 1999 and January 21st, 1999. And the answer to Ms.
Doddo was a handwritten response from Respondent’s Director
of Human Resources, to the effect that MCAR does—quote
“MCAR does not intend to comply with NLRB Decision inso-
far as we feel it is wrong,” end quote.
In addition, Mr. Scurry sent a letter requesting bargaining to
Mr. Beach, and again there was no bargaining. So there is no
question about the fact that there was a request to bargain about
the unit as clarified and MCAR refused to bargain.
And they assert basically two defenses, One is jurisdiction,
that the NLRB should not assert jurisdiction in this case. As far
MCAR, INC. 1101
as that issue is concerned, that is res judicata, as far as I’m con-
cerned. And therefore, I’m not going to disturb that decision.
The second, this item about which Respondent contests the
decision, and why it refuses to bargain is because they feel the
Board was wrong and that the production technician is a statu-
tory supervisor within the meaning of the National Labor Rela-
tions Act and therefore should not be in this unit.
The one way that the Respondent could proceed, of course,
would
87
be to file a UC petition and ask the Board again to clarify the
unit, that based on new facts that this production technician
really doesn’t belong in the unit. Respondent chose not to go
that route.
Another route, since the decision of the Board on the unit
clarification issue was not appealable directly to the Court of
Appeals, the only way to get it to the Court of Appeals is to
have a finding, really, that Respondent violated Section 8a-5 of
the Act in order to have—and committed an unfair labor prac-
tice, in order to have a decision which the Respondent can ap-
peal to a Court of Appeals, more than likely the Third Circuit,
but not necessarily the Third Circuit.
In any event, on the question of statutory supervisor, I must
find that I agree with Mr. McKinney who in his closing argu-
ment thought that the evidence we heard today on that issue
was cumulative, basically, as to what the production technician
does, cumulative in the sense that it was really essentially re-
gurgitating what was laid out as testimony in the UC hearing.
And I think with—I agree with Mr. McKinney that the pro-
duction technician position is like a lead man, and in any—
more than—and is not a statutory supervisor.
I permitted the Respondent to put forth evidence on the—on
exactly what the production technician does, not so much to
give them another bite at the apple, as Mr. Fink has suggested,
although it may look like that, but because there could be
changed circumstances since the hearing in August of 1998,
and in fact the production technician does indeed have authority
that would make him a statutory supervisor, in my—in my
opinion the new evidence doesn’t rise to that level.
With respect to handling grievances—and I’ll only devote
my attention now to the stuff that would really show or might
show supervisory status. With respect to the processing of
grievances, Mr. Ferand testified that he only sat in on one, and
he sat in as a witness.
With respect to hiring, which is a major factor in deciding if
someone is a statutory supervisor, I find that we don’t have a
heck of a lot more than was presented back in August at the UC
hearing.
88
And I’ll just quote a part from the Regional Director’s Deci-
sion in the UC case, quote, “With regard to the Employer’s
hiring process, while Ferand was asked to sit in on one inter-
view, one job interview, this related to an applicant for a job in
another department. And there was no evidence that Ferand’s
opinion was considered in the decision making with regard to
that applicant.”
Then there is a footnote that states, quote, “In fact, the record
indicates that a decision has not yet been made with regard to
that applicant. The interview in which Ferand took part was
only the first of three interviews conducted before a decision is
made on the applicant.” That’s the end of the footnote.
And then the decision goes on to state, quote, “There is no
indication in the record that Ferand will be asked to sit in on
interviews in the future. And it appears that there is no hiring
expected to take place in the pallet job in the foreseeable fu-
ture,” end quote.
I would note that, in fact, and I credit Mr. Ferand, he has sat
in on seven or eight interviews with applicants who were inter-
ested, as I understand it, in getting the job as the truck driver in
the pallet department.
In any event, he recommended a number of people, that a
number of people actually be hired. None, indeed were hired.
And again he testified that he is on the first step of a three step
hiring process.
So I find that that additional facts, those additional facts,
don’t materially alter the decision or would not materially alter
the decision of the Regional Director in finding that the produc-
tion technician is not a statutory supervisor.
With respect to a tidy products remedy, tidy products is a
case which stands, among other things that are propositioned,
that the General Counsel and/or the Charging Party Union can
get certain litigation costs and other costs if a defense is put
forth in defense of a ULP charge, is frivolous.
I’m not going to order a Tidee Products remedy. I think that
the Respondent, while it certainly doesn’t agree with—doesn’t
agree with
89
the decision to include the production technician in the unit,
and as a practical matter the only way to get that to a Court of
Appeals for review is to have an 8(a)(5) unfair labor practice
finding by the Board.
So and another factor is that there was evidence that I think
Mr. Lee, in good faith, wanted to present. And I don’t think it’s
enough to change the underlying decision. But I think he
should have been given the opportunity to do it. And it didn’t
take very long at all.
In any event, based on the facts in this case, I find that Re-
spondent violated Section 8(a)(1) and 8(a)(5) of The National
Labor Relations Act when it refused the request to bargain in
good faith with the Union about the production technician in
the nonprofessional bargaining unit.
Okay. And I will be making a Recommended Order to the
Board. And my Recommended Order would be that the Re-
spondent, MCAR, Inc., its offices, agents, successors and as-
signed, shall cease and desist from refusing to recognize and
bargain collectively with the Union as the exclusive collective
bargaining representative of the employees in the appropriate
unit.
In addition, I will order that they cease and desist in any like
or related matter from interfering with, restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
I will also recommend to the Board an order that the Re-
spondent take the following affirmative action necessary to
effectuate the policies of the Act: Namely that it recognize and
on request bargain in good faith with the Union as the exclusive
collective bargaining representative of the employees in the
appropriate unit concerning wages, hours and other terms and
conditions of employment.
That is that the—that the Employer, MCAR, Inc., bargain
with the Union with respect to the nonprofessional unit as clari-
fied, namely that it count in its number the production techni-
cian person.
Now, what I will do, when I get a copy of this decision, I
will certify it to the Board with copies to all the lawyers. And I
will attach—actually my certification will be what I will be
sending to you.
But attached to it as Appendix A, will be this bench decision.
90
As Appendix B will the Regional Director’s Decision of Sep-
tember, ‘98. Appendix C will be the Board Order denying
review of the Regional Director’s decision in the UC Case.
And Appendix D will be a notice to be posted at Respondent’s
facility.
And I think that’s it. Is there anything else, Mr. McKinney,
that you think needs to be put on the record, sir, that I—
MR. MCKINNEY: No, there’s—
JUDGE LINSKY: —might have inadvertently left out?
MR. MCKINNEY: No. There is—I would like to discuss a
little bit—
JUDGE LINSKY: You may, sir.
MR. MCKINNEY: You referenced twice the nonprofes-
sional bargaining unit. And I understand that the Regional
Director did reference those two units that were certified under
the Pennsylvania Labor Relations Board.
But we also made clear, I believe, that the parties have
merged those two units into one. And unless I’m mistaken, I
believe it is the one unit that the Regional Director clarified.
MR. FINK: I think it’s “all nonprofessionals.”
MR. MCKINNEY: It’s—
JUDGE LINSKY: Okay. Well I’m looking at the com-
plaint. And in paragraph 8, I understood it just to refer to the
nonprofessional employees unit and that that was the unit that
the --
MR. FINK: Yeah, Your Honor, I think there had—there
had, at one time, been some distinction between, I think, two
segments of the unit. But the unit, the single unit that exists
now is all nonprofessional. There aren’t any professionals in
the unit. So it’s—it is accurately characterized as nonprofes-
sional.
I think they once had a janitorial and a other nonprofessional
or something like that. But it’s—-
MR. LEE: Your Honor, the current unit is professional and
nonprofessional.
MR. FINK: Are there professionals in there? Okay.
91
JUDGE LINSKY: Okay. So there is one merged unit?
MR. LEE: Yes.
JUDGE LINSKY: Okay. And the only issue in this case
was would the Respondent bargain in good faith with the—that
one merged unit as clarified. And the only issue was the pro-
duction technician, okay?
MR. LEE: That’s correct.
MR. FINK: That’s my understanding.
JUDGE LINSKY: Okay. So the order then will say that
the—that the—this will be clarified when I issue, you know,
my order certifying the bench decision to the Board, that there
is one merged unit, and that one merged unit, the Respondent
should bargain in good faith with and that one merged unit
should include, as clarified, the production technician person.
Okay. Is there anything else, Mr. McKinney?
MR. MCKINNEY: No, Your Honor, I believe that’s it.
JUDGE LINSKY: Mr. Fink?
MR. FINK: No, nothing. Thank you.
JUDGE LINSKY: Okay. Mr. Lee?
MR. LEE: No, sir. Thank you.
JUDGE LINSKY: Okay. All right. At this time, the record
is closed.
(Whereupon the hearing was concluded at 4:40 p.m.)

APPENDIX B
DECISION, ORDER, AND CLARIFICATION OF
BARGAINING UNIT
Upon a petition duly filed under Section 9(b) of the National
Labor Relations Act, a hearing1 was held before JoAnn F.
Dempler, a hearing officer of the National Labor Relations
Board.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this case to
me.2
Upon the entire record3 in this case, the Regional Director
finds:
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and are affirmed.
2. The Employer is engaged in commerce within the mean-
ing of the Act and it will effectuate the purposes of the Act to
assert jurisdiction here.
3 American Federation of State, County and Municipal Em-
ployees, District Council 85, AFL–CIO (the Union or
AFSCME), the Petitioner here, is a labor organization within
the meaning of Section 2(5) of the Act.
The Union is the collective-bargaining representative of cer-
tain employees of MCAR (the Employer or MCAR) which the
Union was originally certified to represent in two units by the
Pennsylvania Labor Relations Board (PLRB) in Case PERA–
R-12, 599-W on October 30, 1979, clarified in Case PERA–
U-82–403W on October 27, 1982, and again clarified in Case

1 The name of the Employer appears as amended at the hearing.
2 Under the provisions of Sec. 102.67 of the Board’s Rules and
Regulations, a request for review of this decision may be filed with the
National Labor Relations Board, addressed to the Executive Secretary,
109914th St., N.W., Washington, D.C. 20570-0001. This request must
be received by the Board in Washington by September 25, 1998.
3 The Employer and the Union timely filed briefs in this matter
which have been duly considered by me.
MCAR, INC. 1103
PERA–U–84-441-W on July 31, 1984. As clarified, those two
units presently are described as:

(1) All full-time and regular part-time professional employ-
ees, including but not limited to Caseworkers, Caseworker
Trainees, Nurse I, Special Education Teachers I, Special
Education Teachers II, and Special Education Teacher
Associates; excluding Residential Director I, Caseworker
Supervisor I, nonprofessional employees, management level
employees, supervisors, first level supervisors, confidential
employees and guards, as defined in the [Pennsylvania Labor
Relations] Act.

(2) All full-time and regular part-time nonprofessional em-
ployees, including but not limited to Houseparent I, House-
parent II, Houseparent III, Activity Aide 1, Activity Aide II,
Activity Aide III, Homemaker, Clerk Typist I, Clerk Typist
11, Teacher Aides and Emergency Relief; excluding profes-
sional employees, management level employees, supervisors,
first level supervisors, confidential employees and guards, as
defined in the [Pennsylvania Labor Relations] Act.

In the petition for unit clarification here, the Union described
a single unit, listing the inclusions from both of the units de-
scribed above. Since the Union was certified, the parties have
had successive collective-bargaining agreements, the most re-
cent of which is effective from January 1, 1998, through De-
cember 31, 1999. That document covers both the professional
and nonprofessional units in a single collective-bargaining
agreement but references the units as separately certified by the
PLRB.
In the instant proceeding, the Union seeks to clarify a com-
bined unit of professional and nonprofessional employees by
including within it the recently created nonprofessional position
of production technician. In support thereof, the Union con-
tends that the duties of this position are not supervisory within
the meaning of Section 2(11) of the Act, and, in fact, consist
more of a realignment of job tasks previously performed by
individuals in the nonprofessional unit as well as nonsupervi-
sory tasks previously performed by Production Manager Mark
Russell. The Employer, contrary to the Union, contends that the
production technician is a supervisor within the meaning of
Section 2(11) of the Act and therefore must be excluded from
the unit. Moreover, the Employer contends that the NLRB
should not assert jurisdiction in this matter inasmuch as all of
the previous representation issues have been decided before the
PLRB. In addition, the Employer contends that, should the
NLRB assert jurisdiction here, the case should be deferred to
the arbitration procedure. Aside from the supervisory conten-
tion, the Employer raises no other substantive objection to the
inclusion of the production technician in the existing nonpro-
fessional unit.
The Employer is a private, not-for-profit Pennsylvania cor-
poration located in Mercer County providing various services
to clients with mental retardation and/or developmental dis-
abilities. MCAR, previously known as Mercer County Associa-
tion for the Retarded, Inc., provides a variety of services to its
clients, including vocational training, residential facilities, re-
habilitation, and community employment. MCAR is overseen
by an 11-member board of directors who are elected by ARC
(Association for Retarded Citizens) of Mercer County, the par-
ent organization of MCAR. The membership of the parent cor-
poration is comprised of families of clients, concerned citizens,
and any other individuals who choose to join the organization.
The main facility of MCAR is in Hermitage, Pennsylvania.
There is also a workshop of MCAR in Greenville, Pennsyl-
vania, which is only about 30 miles from Hermitage. The main
facility consists of a main workshop, a furniture shop, and a
pallet shop. Donna Nicastro is the director of vocational ser-
vices at the Hermitage facility4 Reporting to Nicastro is Pro-
duction Manager Mark Russell, who has overall responsibility
for the four production shops. There are nine activity aides5 in
the main workshop. Assisting Russell are Jerome Thomas,
furniture supervisor, in the furniture shop, and Mr. Jaggers,6
assistant production manager, in the main workshop and at the
Greenville facility. Each activity aide oversees the work of
about 15 clients. There are also two activity aides in Greenville,
and two in the furniture shop. Each of those aides also oversees
about 15 clients. Prior to July 1, 1998, there were two activity
aides and one driver employed in the pallet shop. There were a
total of about 15 clients in the pallet shop at that time.
Prior to July l, 1998, Dave Farrand and Don Roudybush, the
two activity aides assigned to the pallet shop, and Ed Perich,
the driver, reported directly to Russell. Farrand has been work-
ing at MCAR for 17 years; Roudybush has been there for 11
years. In the pallet shop, various business customers place or-
ders to have pallets built to the size needed for their purposes.
Until this summer, these orders were called in to Russell, who
would send the order in memo form to Roudybush or Farrand.
Russell also prepared the invoices for Perich to take on the
deliveries. According to Russell, the amount of work for the
pallet shop has increased steadily in the last few years. While
the orders for the other workshop areas are, to some extent,
seasonal, the pallet shop volume is constant throughout the
year.
Inside the pallet shop, there are various types of machines
needed to produce the product. The aides supervise the clients,
who grind, cut wood, cut metal, and assemble the pallets. The
aides assign, oversee, and check the clients’ work. The aides
also fill out a timesheet for each client, as well as for their own
time. The activity aides also load the truck driven by Perich,
who delivers the finished pallets to the customers who placed
the orders.
According to Russell, the system in effect prior to July 1,
1998, had some inherent problems. While the furniture shop
and the main workshop had Thomas and Jaggers to assist Rus-
sell in overseeing the activity aides, the employees in the pallet
shop reported only to Russell. Because of his responsibility for
the entire production at MCAR, at times Russell was unavail-
able to take calls, assign work, prepare invoices, take inventory,
and generally oversee the flow of work in the pallet shop. As a

4 The management personnel at Hermitage also oversee the Em-
ployer’s operation in Greenville.
5 The activity aides are also called floor supervisors. However, they
do not supervise other employees of MCAR within the meaning of the
Act. Rather, they supervise the activities of the clients who do the pro-
duction work in the workshops.
6 The record does not reveal Jagger’s first name.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
result, there were sometimes delays in communications be-
tween Russell and the employees in the pallet shop, which con-
sequently resulted in delays in production and delivery. It was
thus decided that Russell needed an intermediary to assist him
with the work in the pallet shop. In 1998, a new position was
developed for this purpose, posted with the job title “production
technician.”
Farrand applied to be the production technician and was of-
fered the position, which he began on about July 1, 1998. Con-
sequently, there is presently only one activity aide in the pallet
shop. Currently, the Employer has no plan to fill the second
activity aide position which Farrand vacated. In his new job,
Farrand took over certain duties, some of which had been per-
formed by Russell, and some of which had been done by Rus-
sell, Roudybush, and Farrand. Roudybush and Perich now give
their timesheets to Farrand, whereas previously they turned
them in to Russell. When customers call in with orders, they
now speak to Farrand, who accepts the order, and passes on the
assignment to Roudybush. The calls previously came to Rus-
sell, and either Russell or the two activity aides would schedule
the work. Farrand is now responsible for taking inventory, a
task previously shared by Russell, Farrand and Roudybush.
Farrand also does the pricing on the costs of new orders, which
he turns in to Russell, who in turn gives it to the sales manager.
Another one of Russell’s duties which is now performed by
Farrand is the invoicing of deliveries and the scheduling of
stops for Perich each day. Farrand instructs Roudybush in the
loading of the delivery truck; in the past, Russell gave those
instructions to Farrand and Roudybush.
With these changes in duties, Farrand received an increase in
pay. His hourly rate increased by approximately 40 cents per
hour. Roudybush and Perich now have little direct contact with
Russell since Farrand’s duties allow him to act as an intermedi-
ary for Russell. Farrand has never been asked to attend any
management meetings, although he was once asked to sit in on
an interview of an individual who was applying for a job on the
cleaning crew, which is not part of the pallet shop. Although he
is no longer responsible for the supervision of the clients who
work in the pallet shop, Farrand does spend part of his time
assisting Roudybush when needed.
I. THE JURISDICTIONAL ISSUE
As previously stated, the units at issue here were certified
and then clarified by the PLRB. The Union, by filing the instant
petition, requests that the NLRB assert jurisdiction in the mat-
ter. The Employer, contrary to the Union, contends that juris-
diction should be declined by the NLRB and that all representa-
tion issues should be resolved by the PLRB, as has always been
done in the past.
In support of this position, the Employer argues that the par-
ties have a long history of a stable bargaining relationship un-
der the jurisdiction of the PLRB, and that nothing has changed
jurisdictionally to justify disturbing this relationship. Thus, the
Employer contends that jurisdiction should remain with the
PLRB because there is no compelling reason to change it. I find
the Employer’s argument unpersuasive. After the Board’s deci-
sion in Res-Care, Inc., 280 NLRB 670 (1986), the Board’s
policy was to decline jurisdiction in certain cases, based on the
relationship between the employer and the exempt entity for
which it was providing services. Consequently, in 1988, when
the Union filed a charge with the NLRB against MCAR, the
Regional Director dismissed the charge, noting that, based on
the policies set forth in Res-Care, Inc., supra, the Board would
decline to assert jurisdiction over the Employer.7 However, in
1995, the Board overruled Res-Care in Management Training
Corp., 317 NLRB 1355 (1995). Thus, Board policy changed so
that the NLRB would henceforth assert jurisdiction in certain
situations in which it had previously declined to assert jurisdic-
tion. Instead of the standards set forth in Res-Care, supra, to
decide whether or not the Board would assert or decline juris-
diction in such cases, the Board held that the sole determining
factor in making this decision would be whether or not the em-
ployer meets the definition of “employer” within the meaning
of Section 2(2) of the Act and the applicable monetary jurisdic-
tional standard. Management Training Corp., supra at 1358.
Two later charges that were filed by the Union with the NLRB
against MCAR in 1991 and 1993 were dismissed on the merits,
but it was noted in the dismissal letters that it appeared the
Board would now assert jurisdiction over the Employers.8
The Employer’s argument that merely because the Board de-
clined jurisdiction in the past, it should continue to do so, is
unconvincing. The Employer argues that the parties have al-
ways enjoyed a “stable bargaining relationship” which has
always been controlled by the PLRB and therefore it should
stay that way. However, the stable bargaining relationship
has been between the Employer and the Union, not the Em-
ployer and the PLRB. There is every expectation that the
stable bargaining relationship can continue regardless of
which agency exercises jurisdiction over the Employer.9
Thus, the assertion that this matter should remain within the
jurisdiction of the PLRB because the Employer has histori-
cally been under that agency’s jurisdiction is not persuasive.
10By filing the instant petition, the Union is requesting that

7 That letter was received into the record as Jt. Exh. 3.
8 Those dismissal letters were received into the record as Jt. Exhs. 4
and 5.
9 The Employer cites D & T Limousine Service, 320 NLRB 859
(1996), in support of is position that the Board should not assert juris-
diction in this case. I find that the Employer’s reliance on this case is
misplaced. In that case, the employer believed that the Board should
decline jurisdiction because it contended that the National Mediation
Board could assert jurisdiction in the matter. In that case, the Board did
assert jurisdiction because the employer failed to show that there had
been a jurisdictionally significant change in the employer’s operations
and it fit the definition of an employer within the meaning of the Act.
Thus, both the factual and the legal issues in that case are different than
the situation here, where the Board had previously declined to assert
jurisdiction, but because of a change in jurisdictional standards, can
now assert jurisdiction. The instant case rests on the change in the
Board’s standards for asserting jurisdiction, while D & T Limousine
Service deals with the issue of alleged changes in the employer’s opera-
tions.
10 The Employer argues that the instant case is distinguishable from
the situation in Community Interactions-Bucks County, Inc., 288
NLRB 1029 (1988), which the Employer acknowledges is an. opera-
tion that is quite similar to that of MCAR. The Employer asserts that
the instant case is different from Community Interactions inasmuch as
MCAR, INC. 1105
the NLRB assert jurisdiction herein, and, so long as the Em-
ployer meets the definition of an employer within the mean-
ing of the Act and the applicable monetary jurisdictional
standard, I find no reason to decline jurisdiction herein.
The parties “have stipulated that the Employer is a health
care institution within the meaning of Section 2(14) of the
Act. The Board has found that employers such as MCAR
which provide residential care and training to the mentally
retarded fall within the definition of a health care institution
within the meaning of the Act. Beverly Farm Foundation,
Inc., 218 NLRB 1275 (1975). Thus, I find MCAR to be a
health care institution within the meaning of Section 2(14)
of-the Act. The parties also stipulated that MCAR meets the
applicable monetary standards for the assertion of jurisdiction
as a health care institution. Moreover, the Employer agrees that
its operations are substantially similar to the operations of the
employer in Community Interactions-Bucks County, Inc., supra,
a case in which the Board asserted jurisdiction over such an
employer.
Thus, it is clear that MCAR is an employer within the mean-
ing of the Act. Despite the fact that the units involved here were
originally certified by the PLRB, I find that the Employer meets
the appropriate monetary jurisdictional standard as a health care
institution, is subject to the Board’s jurisdiction and that there is
no basis for declining to exercise jurisdiction over the Em-
ployer. Accordingly, I find that it is appropriate to assert juris-
diction in this matter.
II. THE DEFERRAL ISSUE
At the hearing in this case, the Employer raised the argument
that a grievance has been filed over the issue of whether the
production technician’s duties belong in the bargaining unit,
and therefore, the matter should be deferred to the arbitration
process. Contrary to the Employer, the Union argues that the
matter should not be deferred to arbitration. I find that deferral
would not be appropriate in this matter.
Although infrequent, the Board has, in some cases, deferred
to arbitration in a representation proceeding. However, this is
only done in cases where the resolution of the underlying issue
turns solely on the proper interpretation of a collective-
bargaining agreement. St. Mary’s Medical Center, 322 NLRB
954 (1997). When the resolution of the issue turns on statutory
policy, the Board will not defer to arbitration. Id., citing Marion
Power Shovel, 230 NLRB 576 (1977).
In the instant matter, there does not appear to be any issue
that can be resolved through interpretation of the collective-
bargaining agreement. Rather, apart from jurisdiction, the un-
derlying issue involves the statutory inquiry of whether or not
the position of production technician should be excluded from
the nonprofessional unit as possessing supervisory indicia
within the meaning of Section 2(11) of the Act. Accordingly,

that case involved a new representation case, while MCAR has a long
history of being certified under the PLRB. I do not find this distinction
to have any probative significance. The fact that the instant unit has
been certified for a long time while the one in Community Interactions
was newly certified does not affect the disposition of the jurisdictional
issue in any way.
the issue here is a statutory one and should not be deferred to
the arbitration procedure.
III. THE SUPERVISORY ISSUE
As previously noted, the Union filed the petition in the in-
stant proceeding requesting that the present unit as described by
the Union be clarified to include the newly created nonprofes-
sional position of production technician. Contrary to the Union,
the Employer contends that the production technician must be
excluded from the unit on the basis that the duties of the pro-
duction technician are supervisory, particularly with regard to
the direction of work.
Section 2(3) of the Act excludes supervisors from the defini-
tion of “employee.” Section 2(11) of the Act further defines a
supervisor as “any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely rou-
tine or clerical nature, but requires the use of independent
judgment.”
The Board has been careful not to construe the language of
the statute relating to supervisory status too broadly because
once an individual is found to be a supervisor, that individual is
denied the rights of employees which are protected by the Act.
St. Francis Medical Center-West, 323 NLRB 1046 (1997);
Hydro Conduit Corp., 254 NLRB 433, 437 (1981). “In enacting
Section 2(11), Congress emphasized its intention that only truly
supervisory personnel vested with ‘genuine management pre-
rogatives’ should be considered supervisors, and not ‘straw
bosses, leadmen, setup men and other minor supervisory em-
ployees.’” Id., quoting Chicago Metallic Corp., 273 NLRB
1677, 1688 (1985), affd. in relevant part 794 F.2d 527 (9th Cir.
1986). The exercise of some supervisory authority in a manner
which is merely routine, clerical, perfunctory or sporadic, does
not confer supervisory status. Id. at 1609.
As a result, the Board analyzes each case individually “in or-
der to differentiate between the exercise of independent judg-
ment and the giving of routine instructions, between effective
recommendation and forceful suggestion, and between the ap-
pearance of supervision and supervision in fact.” Providence
Hospital, 320 NLRB 717, 725 (1996), citing McCullough Envi-
ronmental Services, 306 NLRB 565 (1992), enf. denied 5 F.3d
923 (5th Cir. 1993). Further, the burden of proving supervisory
status in a representation case rests on the party alleging that
supervisory status exists. St. Francis Medical Center-West,
supra. When the evidence is in conflict or inconclusive with
regard to a particular indicia of supervisory status, the Board
will not find supervisory status based on that indicia. Davis
Memorial Goodwill Industries, 318 NLRB 1044 (1995); Phelps
Community Medical Center, 295 NLRB 486, 490 (1989).
Applying the above principles to the instant case, I find in-
sufficient evidence to warrant a conclusion that the duties of the
production technician are supervisory within the meaning of the
Act. There was no evidence at all presented that Farrand, in his
new position, has any authority to transfer, suspend, lay off,
recall, promote, discharge, assign, or reward employees. With
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
regard to the Employer’s hiring process, while Farrand was
asked to sit in on one job interview, this related to an applicant
for a job in another department and there is no evidence that
Farrand’s opinion was considered in the decisionmaking with
regard to that applicant.11 There is no indication in the record
that Farrand will be asked to sit in on interviews in the future,
and it appears that there is no hiring expected to take place in
the pallet shop in the foreseeable future.
Farrand stated that he might someday sit in on grievance
meetings; however this assertion was vague and speculative.
The Union has been certified at the Employer’s facility for
about 20 years, and none of the witnesses could recall a single
grievance ever having been filed.
Likewise, Farrand testified that he might report a discipline
problem to Nicastro if the occasion ever arose. There is no
indication, however, that should such a situation arise, Far-
rand’s opinion or recommendations regarding discipline would
be solicited or followed. Such speculation is not probative of
supervisory status.
The thrust of the Employer’s argument relating to supervi-
sory status is that Farrand directs the work of Roudybush and
Perich in the pallet shop. In this regard, Farrand has been as-
signed some of the duties formerly performed by Russell,
which Russell was frequently too busy with other aspects of
production to handle efficiently. Farrand also assumed the sole
responsibility for certain duties formerly performed by himself
and Roudybush. However, none of Farrand’s current duties
appear to involve the necessary independent judgment required
for a finding of supervisory status. Farrand now receives the
phone calls from business customers who wish to place orders
for clients. He passes these orders on to Roudybush. He takes
inventory of the supplies and stock of pallets in the shop. Far-
rand prepares the invoices and informs Perich of the deliveries
that need to be made that day, and in which order the deliveries
should be made. Farrand receives and reviews the timesheets,
but if he observes an error, he merely informs Nicastro; he does
not handle it himself. Farrand also spends about 10 percent of
his time performing duties along with Roudybush, overseeing
the work performed by the clients in the pallet shop.
In sum, the record reveals that, although Farrand has been
given different job duties than he previously had as an activity
aide, with a raise in pay of about 40 cents per hour, his new job
duties do not confer supervisory status on him. His new duties
appear to be a rearrangement of certain duties previously per-
formed by either Russell, Roudybush, and/or Farrand. Nonethe-
less, these new duties appear to be lacking in supervisory au-
thority. These duties allow Russell more time to perform his
supervisory and management functions by having Farrand as an
intermediary, or conduit, for his directives. This was done to
allow for more efficient production, since Russell was some-
times unavailable in the pallet shop. However, the assignment
of work and other duties assumed by Farrand are clearly routine
and clerical in nature. Both Roudybush and Perich are long

11 In fact, the record indicates that a decision has not yet been made
with regard to that applicant. The interview in which Farrand took part
was only the first of three interviews conducted before a decision is
made on the applicant.
time employees who appear to need little direction other than
informing them of what order has come in or what delivery is
ready for the day. There is insufficient evidence that any inde-
pendent judgment is used in the performance of such duties.
In summary, the Employer has not met its burden of estab-
lishing that the production technician duties are supervisory as
defined in the Act. In analyzing the various incidents asserted
to show supervisory authority, I find that in each instance the
record fails to establish anything more than merely routine,
perfunctory, or, at best, sporadic events. The exercise of such
limited authority is insufficient to confer supervisory status.
Delta Mills, Inc., 287 NLRB 367 (1987); Bowne of Houston.
Inc., 280 NLRB 1222 (1986). Accordingly, I find that the pro-
duction technician is not a supervisor within the meaning of
Section 2(11) of the Act and I shall clarify the existing nonpro-
fessional unit to specifically include therein the newly created
nonprofessional position of production technician.12
ORDER
It is ordered that the existing nonprofessional unit repre-
sented by American Federation of State, County and Mu-
nicipal Employees, District Council 85, AFL–CIO be, and it
is, clarified so as to include therein the position of produc-
tion technician.

12 As discussed previously, the Union was certified by the PLRB to
represent MCAR’s employees in two separate units, and the two units
were twice clarified by the PLRB. The two units consisted of one unit
of professional employees and one unit of nonprofessional employees.
Although the instant petition describes one combined unit, and the
current collective-bargaining agreement covers both units in one con-
tract, the record does not reflect that there has ever been an election
held in order for the professional employees to vote as to whether or
not they wished to be included in a unit with the nonprofessionals.
Therefore, I shall clarify only the nonprofessional unit at this time to
include the position of production technician.
The parties have submitted, as a joint exhibit in this matter, a de-
scription of the two units with the job titles as they presently exist.
Accordingly, the clarified units, with the updated job titles, are as fol-
lows:
PROFESSIONAL UNIT: All full-time and regular part-time profes-
sional employees, including Vocational Program Specialists and Wrap
Around Workers employed by the Employer at its Hermitage, Pennsyl-
vania and Greenville, Pennsylvania, facilities; excluding all nonprofes-
sional employees, management employees, confidential employees and
guards, and supervisors as defined in the Ad.

NONPROFESSIONAL UNIT: All full-time and regular part-time
nonprofessional employees, including Accounts Receivable/Payable
Technicians, Crew Leaders, Drivers, Fiscal Assistants, Floor Supervi-
sors. Floor Supervisors II (Food Service, Furniture Shop, Pallet Shop),
In-Home Residential Aides, Individual Specialized Program Implemen-
tors, Job Coaches, Maintenance Technicians, OBRA Companions,
production technician, Receptionists and Residential Workers, em-
ployed by the employer at its Hermitage, Pennsylvania and Greenville,
Pennsylvania facilities; excluding all management employees, confi-
dential employees and guards, professional employees and supervisors
as defined in the Act
MCAR, INC. 1107
APPENDIX C
ORDER
The Employer’s request for review of the Regional Direc-
tor’s Decision, Order, and Clarification of Bargaining Unit is
denied as it raises no substantial issues warranting review. In
denying review, we note that the Employer’s reliance on the
Third Circuit’s decision in Passavant Retirement & Health
Center v. NLRB, 149 F.3d 243 (3d Cir. 1998), enf. denied 323
NLRB 598 (1997), is misplaced. In its decision, the court spe-
cifically stated that it was “not creating a per se rule that LPNs
are supervisors.” 149 F.3d at 249. Further, the record in that
case, unlike the facts before us in the instant case, contained
specific evidence, relied on by the court in finding the LPNs to
be statutory supervisors, that the LPNs had the authority to
discipline employees and adjust grievances in the exercise of
their independent judgment.

MEMBER HURTGEN, dissenting.
I would grant review on the jurisdictional issue and on the
supervisory issue.
With respect to the former, I note that NLRB jurisdiction
over the Employer has previously been declined, and that a
State Board has exercised jurisdiction. Although the declination
preceded Management Training Corp., 317 NLRB 1355
(1995), I have said that I do not necessarily agree with that
case. See Correctional Medical Services, 325 NLRB 1061
(1998). Accordingly, I would grant review.
With respect to the supervisor issue, I note that there is at
least some evidence that the person in dispute has authority to
make effective recommendations in regard to hiring, adjust-
ment of grievances, and assignment and direction of employ-
ees.