The Arc of South Norfolk

National Labor Relations Board - Board Decisions

Aug 15, 2018

01-RC-213174 (N.L.R.B. Aug. 15, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE ARC OF SOUTH NORFOLK
Employer
and Case 01-RC-213174
AMERICAN FEDERATION OF STATE, COUNTY
& MUNICIPAL EMPLOYEES, COUNCIL 93
Petitioner
ORDER
The Employer’s Request for Review of the Acting Regional Director’s Decision
and Direction of Election is granted as it raises a substantial issue regarding whether
the Employer’s Program Coordinators possess the authority to assign or responsibly
direct employees within the meaning of Section 2(11). The Request for Review is
denied in all other respects.1

1 In denying review of the Acting Regional Director’s findings that the Program
Coordinators here do not have the supervisory authority to effectively recommend hiring
or to effectively recommend discipline, we do not rely on the Acting Regional Director’s
suggestion that such recommendations must be “binding” to confer supervisory status
under the Act. It is well established that a recommendation is effective when “the
recommended action is taken without independent investigation by superiors, not simply
that the recommendation is ultimately followed.” Children’s Farm Home, 324 NLRB 61,
61 (1997). Although a “binding” recommendation might well be effective, the Board
does not require that that a recommendation be “binding” in order to be effective.
With respect to the Program Coordinators’ putative authority to effectively
recommend hiring, the Board has found that a purported supervisor does not effectively
recommend hiring when a recommendation does not concern whether a candidate
should be hired by an employer, but instead concerns whether a candidate should be
placed in a purported supervisor’s particular area or department. Training School at
Vineland, 332 NLRB 1412, 1412, 1417 (2000). The Board has found that such
recommendations do not primarily implicate the employer’s interest, but instead are
based on the purported supervisor’s interest in maintaining a harmonious working
environment in the area or department. See Kenosha News Publishing Corp., 264
NLRB 270, 271 (1982); Willis Shaw Frozen Food Express, 173 NLRB 487, 488 (1968).
Such is the case here, based on the very testimony cited by the Employer in its Request
for Review. The Employer cited testimony from two managers that Program
Coordinators conduct “working interviews” with a candidate and evaluate whether a
candidate is “an appropriate match” for a Program Coordinator’s group room. The
managers further testified that although they would not hire a candidate for a particular
Program Coordinator’s group room without that Program Coordinator’s approval, they
Contrary to our dissenting colleague, we find that the request for review raises a
question whether the Acting Regional Director may have disregarded relevant evidence
and thereby clearly erred in finding that the Program Coordinators did not exercise
statutory supervisory authority with respect to the assignment and responsible direction
of case managers’ work. In particular, the Employer identified testimony from a
Program Coordinator explaining that he assigns case managers to work with certain
participants based on his assessment of the case manager’s skills relative to
participants’ needs. Further, the Employer points to testimony from Program
Coordinators that they make decisions about what occurs in their rooms and that they
are accountable for the actions of case managers. The Acting Regional Director failed
to sufficiently address this evidence, and the overall summary nature of his discussion
of the responsible direction issue raises a concern that other relevant evidence may not
have been properly considered. Accordingly, we cannot affirm the decision below
without a full review of the record. Unlike our colleague, we express no view with
respect to whether the Program Coordinators are statutory supervisors until we have
completed that review.
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
Dated, Washington, D.C., August 15, 2018.
MEMBER PEARCE, dissenting in part:
Contrary to my colleagues, who grant the Employer’s request for review of the
Acting Regional Director’s findings that the Employer’s Program Coordinators do not
possess the authority to assign or responsibly direct employees within the meaning of

might nevertheless hire the candidate into a different Program Coordinator’s group
room. Accordingly, we deny review of the Acting Regional Director’s decision in this
regard.
With respect to discipline, we find that the Employer has not established that it
maintains a progressive discipline policy because Program Coordinators can engage in
any amount of informal counseling without it warranting further discipline and because
managers can skip over steps in the discipline policy if they feel more serious discipline
is warranted. See Veolia Transportation Services, Inc., 363 NLRB No. 98, slip op. at 8-9
(2016) (explaining that a discipline system is not progressive if steps can be skipped or
repeated). In circumstances such as these, where there is no progressive discipline
system and where the purported supervisors report misconduct but do not recommend
formal discipline, the Board has found that the purported supervisors lack the authority
to discipline or to effectively recommend discipline under the Act. See id., slip op. at 9-
10; Illinois Veterans Home at Anna L.P., 323 NLRB 890, 890 (1997). Further, as the
Acting Regional Director found, any disciplinary recommendation made by Program
Coordinators is subject to an independent investigation by higher management.
Section 2(11) of the Act, I would deny the Employer’s request for review in its entirety.
The Acting Regional Director correctly found that the Employer failed to meet its
evidentiary burden of showing that the Program Coordinators possess the authority to
assign or responsibly direct employees, and the Employer has not established any
basis under Section 102.67(d) of the Board’s Rules and Regulations for granting its
Request for Review.
First, I agree with the Acting Regional Director’s finding that the Program
Coordinators do not responsibly direct employees within the meaning of Section 2(11).
The Acting Regional Director correctly found that the Employer failed to present
sufficient evidence that the Program Coordinators are held accountable for their
direction of case managers’ work assisting clients with their personal care and daily
activities and documenting their clients’ progress. See Golden Crest Healthcare Center,
348 NLRB 727, 731 (2006) (because “purely conclusory evidence is not sufficient to
establish supervisory status,” there must be a “more-than-merely-paper showing” of a
prospect of consequences for a putative supervisor whose alleged employees do not
perform tasks properly). Second, I agree with the Acting Regional Director’s finding that
the Program Coordinators do not assign employees within the meaning of Section 2(11)
because they are primarily engaged in equalizing the case managers’ workload and
making ad hoc assignments based on their individual preferences. See Oakwood
Healthcare, Inc., 348 NLRB 686, 693 (2006). Further, even assuming the Program
Coordinators assigned or responsibly directed employees, the Acting Regional Director
correctly found that the Program Coordinators’ discretion is narrowly circumscribed by
the terms specified in their clients’ state-generated individual service plans and day
habilitation service plans and therefore does not require the use of independent
judgment. See, e.g., Community Education Centers, Inc., 360 NLRB 85, 85-86 (2014)
(putative supervisors’ direction of employees did not entail the use of independent
judgment where their discretion was limited by the employer’s policies and procedures
and the exercise of such judgment was routine in nature).
Because I agree with the Acting Regional Director’s finding that the Employer
failed to establish that Program Coordinators possess any indicia of supervisory status,
I find that they were properly included in the bargaining unit. Accordingly, I dissent from
my colleagues’ partial grant of review.
MARK GASTON PEARCE, MEMBER