Training School at Vineland

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1412 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1412
Training School at Vineland and Communications
Workers of America, AFL–CIO, Petitioner.
Case 4–RC–19575
December 15, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On March 8, 1999, the Regional Director for Region 4
issued a Decision and Direction of Election (relevant
portions are attached as an appendix) finding that the
Employer’s group home managers (GHMs) are not su-
pervisors within the meaning of Section 2(11) of the Act.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s decision. By Order dated June 23,
1999, the Board granted the Employer’s request for re-
view. The election was conducted as scheduled on April
7, 1999, and the ballots were impounded.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have carefully considered the entire record in this
proceeding, and affirm the Regional Director’s determi-
nation that the GHMs are not statutory supervisors.
The facts are set forth in detail in the appendix.
Briefly, the Employer provides residential care and edu-
cational programs to developmentally disabled individu-
als (clients) in 44 group home settings in southern New
Jersey. The Employer has a director, six assistant direc-
tors, and two night supervisors for these programs (one
night supervisor position is presently vacant). A GHM
and several counselors and technicians (direct care work-
ers) are assigned to each of the 44 facilities. Four to six-
teen clients reside at each home. The Petitioner seeks to
represent a unit consisting of the 44 GHMs.1
The Employer asserts that its GHMs are supervisors
within the meaning of Section 2(11) of the Act. It claims
that they assign, direct, effectively recommend hiring,
effectively recommend discipline, and evaluate the em-
ployer’s direct care workers. The Employer also asserts
that the GHMs redress employee grievances. We agree
with the Regional Director that the Employer has not met
its burden of establishing that GHMs possess any of the
claimed statutory supervisory authority.2

1 The direct care workers assigned to 33 of the homes are repre-
sented by the Amalgamated Local 2327, United Automobile Workers
of America, AFL–CIO. The Petitioner represents in a separate unit the
direct care workers in the other 11 homes.
2 In particular, we find that the Employer has not shown that GHMs
possess statutory supervisory authority to adjust employee grievances
or effectively recommend such action. To the extent that GHMs have
some involvement in the grievance resolution procedure, the evidence
does not specify with any clarity what role they play. Indeed, there is
no evidence that a GHM independently adjusted or used his or her
independent judgment to effectively recommend the adjustment of a
grievance pursued by an employee through the Employer’s grievance
procedure.
The Employer asserts that the GHMs must be statutory
supervisors, since otherwise there would be no other su-
pervisors at the group homes. Nothing, however, in the
statutory definition of “supervisor” suggests that service
as the highest ranking employee on site requires finding
that such an employee must be a statutory supervisor.
See VIP Health Services v. NLRB, 164 F.3d 644, 649–
650 (D.C. Cir. 1999) (if an employee “do[es] not possess
Section 2(11) supervisory authority, then the absence of
anyone else with such authority does not then automati-
cally confer it”); Providence Alaska Medical Center v.
NLRB, 121 F.3d 548 (9th Cir. 1997); NLRB v. Res-Care,
Inc., 705 F.2d 1461, 1467 (7th Cir. 1983); Washington
Post Co., 254 NLRB 168, 204 (1981); cf. Beverly Enter-
prises v. NLRB, 148 F.3d 1042, 1048 (8th Cir. 1998)
(where a statutory supervisor is available by telephone or
pager, “the highest ranking on-site employee will not
invariably be considered a supervisor”); Northeast Utili-
ties Service Corp. v. NLRB, 35 F.3d 621, 625 (1st Cir.
1994), cert. denied 514 U.S. 1015 (1995); NLRB v.
KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir. 1986);
Highland Superstores, Inc. v. NLRB, 927 F.2d 918 (6th
Cir. 1991) (highest ranking employee on the premises
does not ipso facto make them supervisors, citing NLRB
v. Res-Care, supra); see also Empress Casino Joliet
Corp. v. NLRB, 204 F.3d 719 (7th Cir. 2000) (“we grant
that the idea of a completely unsupervised vessel is, al-
though implausible, not completely preposterous” (cita-
tions omitted)). Thus, evidence must still be presented
that supports a finding that an individual possesses one
or more of the indicia set forth in Section 2(11). As the
Regional Director found, the Employer has not presented
sufficient evidence to establish that GHMs possess any
of the indicia set forth in Section 2(11).3

3 We recognize that the courts are split on the issue and that some
courts are critical of the Board’s failure to find individuals to be super-
visors where there would otherwise be no statutory supervisor present
at the facility. See, e.g., Glenmark Associates, Inc. v. NLRB, 147 F.3d
333, 341–342 (4th Cir. 1998) (“We cannot fathom the Board’s position
that for more than two-thirds of the week at a nursing home providing
twenty-four hour care, where patient conditions can change on a mo-
ment’s notice, there is no one present at the facility exercising inde-
pendent judgment”); Kentucky River Community Care v. NLRB, 193
F.3d 444, 453–454 (6th Cir. 1999), cert. granted 121 S.Ct. 27 (2000)
(serving regularly as the highest ranking employee in the building is
supervisory in nature). However, just as the Board is constrained by
the statute to find supervisory status where any one of the statutorily
prescribed indicia of supervisory status is present, we believe that we
are constrained by the statute not to find an employee to be a supervisor
332 NLRB No. 152
TRAINING SCHOOL AT VINELAND 1413
The Employer also relies particularly on decisions of
the Third Circuit Court of Appeals denying enforcement
of Board Orders in cases concerning the statutory super-
visory status of employees. In Passavant Retirement &
Health Center v. NLRB, 149 F.3d 243 (3d Cir. 1998),
denying enf. 323 NLRB 598 (1997), one of those cases,
the court specifically stated that it was “not creating a per
se rule” concerning the supervisory status of employees.
Indeed, each case must be decided on its facts. Here, the
Regional Director carefully considered the duties and
responsibilities of the group home managers and found
that the evidence does not establish that GHMs possess
statutory supervisory authority.
We are not unmindful that the Third Circuit’s interpre-
tation differs from that of the Board’s over the meaning
of the term “independent judgment” in Section 2(11)—
particularly as to the application of that term to the au-
thority to assign, direct, and discipline employees, and
resolve employee grievances. Briefly, the Board finds
judgment the use of which requires that it be exercised
beyond that involved in regular or customary activities
and which is not controlled or significantly constrained
by outside sources to be independent judgment under
Section 2(11). See, e.g., Weyerhaeuser Timber Co., 85
NLRB 1170 (1949); The Door, 297 NLRB 601 (1990).
The Board’s interpretation of the meaning and applica-
tion of the term “independent judgment” in Section 2(11)
has been generally upheld by the First, Seventh, Eighth,
Ninth, Eleventh, and District of Columbia Circuits.
NLRB v. Provident Nursing Home, 187 F.3d 133 (1st Cir.
1999); Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259
(11th Cir. 1999); NLRB v. Grandcare, Inc., 170 F.3d 662
(7th Cir. 1999); Lynwood Health Care Center, Minne-
sota v. NLRB, 148 F.3d 1042 (8th Cir. 1998); Grandview
Health Care Center v. NLRB,129 F.3d 1269 (D.C. Cir.
1997); Providence Alaska Medical Center v. NLRB, su-
pra. Besides the Third Circuit, the Board’s interpretation

has not been upheld in the Second, Fourth, and Sixth
Circuits. Schnurmacher Nursing Home v. NLRB, 214
F.3d 260 (2d Cir. 2000); Kentucky River Community
Care v. NLRB, supra; Glenmark v. NLRB, supra.
unless it has been established that at least one of those indicia is pre-
sent.
The Employer also asserts that if GHMs are not statutory supervi-
sors, there would be only one assistant director to provide daily super-
vision for every 55 employees in the Community Living Department.
The ratio of supervisors to employees is not one of the indicia of super-
visory authority listed in Sec. 2(11). Without evidence that GHMs
possess any one of the indicia of statutory supervisory authority, secon-
dary indicia are not dispositive. See Chrome Deposit Corp., 323 NLRB
961 (1997). Compare: NLRB v. Prime Energy LTD Partnership, 224
F.3d 206, 209 (3d Cir. 2000) (“we do not consider the ratio of supervi-
sors to employees when determining the supervisory status of a posi-
tion”); Empress Casino Joliet Corp. v. NLRB, supra at 722 (ratio a
consideration when employer cannot manage the business “without any
help from other employees who owe their undivided loyalty to the
company”); Highland Superstores, supra (low supervisor to employee
ratio would be suspect; clearly out of balance).
The Supreme Court has recently granted certiorari to
resolve the conflict in the circuits over the meaning of
the term “independent judgment” in Section 2(11) as it is
applied to the authority of employees to direct and disci-
pline employees. NLRB v. Kentucky River Community
Care, 121 S.Ct. 27 (2000). Unless the Supreme Court
decides otherwise, we adhere to our interpretation of the
term “independent judgment.” We believe that that in-
terpretation furthers the purpose of Section 2(11): It
gives effect to Congress’ intent to preserve the protec-
tions of the Act for employees who have only “minor
supervisory duties” while excluding from coverage those
who exercise “genuine management prerogatives.” S.
Rep. No. 105, 80th Cong., 1st Sess. Pt. 1, at 4 (1947).
Further, it comports with Congress’ intent to incorporate
the definition of supervisor that the Board used in admin-
istering the Wagner Act, which excluded from supervi-
sory status employees who provided limited oversight
over other employees based on employer-specified stan-
dards, as is the case here.
Accordingly, we do not believe the responsibilities of
the GHM evidence the requisite independent judgment
necessary to find statutory supervisory authority. See,
e.g., Graphics Typography, Inc., 217 NLRB 1047
(1975), enfd. mem. 547 F.2d 1162 (3d Cir. 1976); Chil-
dren’s Farm Home, 324 NLRB 61 (1997); cf. Fred
Finch Youth Center, 243 NLRB 77 (1979).
ORDER
The Regional Director’s decision is affirmed, and the
case is remanded to the Regional Director for further
appropriate action.
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Employer operates residential, educational, and treat-
ment centers for developmentally disabled adults and children
in southern New Jersey, including a facility located at 1667
East Landis Avenue, Vineland, New Jersey (the Main Campus).
Communications Workers of America, AFL–CIO (the CWA),
the Petitioner in Case 4–RC–19575, seeks to represent a unit of
approximately 44 full-time and regular part-time group home
managers and senior group home managers3 employed at all of
the Employer’s 44 southern New Jersey group homes.4 The
Employer takes the position that group home managers are
supervisors under Section 2(11) of the Act. Amalgamated Lo-

3 At the hearing, the Employer’s executive director testified that the
classification of “senior group home manager” is no longer in exis-
tence.
4 The UAW did not seek to intervent in Case 4–RC–19575.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1414
cal 2327, United Automobile Workers of America, AFL–CIO
(the UAW), the Petitioner in Case 4–UC–351, took the position
at the hearing that group home managers are not supervisors,
but in its brief stated that it was takes no position concerning
the supervisory status of the group home managers.
The Employer and the UAW are parties to a collective-
bargaining agreement that is effective from August 22, 1996,
though June 30, 1999. The agreement covers approximately
300 full-time and part-time nonprofessional employees, includ-
ing licensed practical nurses, orderlies/aides, instructors with-
out degrees, residential counselors, group home technicians,
groundskeepers, plumbers, carpenters, general maintenance
persons, electricians, mechanics and teachers instructors em-
ployed at the Main Campus and at 33 group homes in southern
New Jersey.
The Employer and the CWA are parties to a collective-
bargaining agreement covering approximately 125 full-time
and regular part-time technicians, instructors, and independent
living trainers, including their substitutes, who work at 11
group homes and at the Main Campus.5
Neither the CWA nor the UAW agreements specifically ex-
clude group home managers, but both agreements exclude su-
pervisors.
Prior to 1990, the Employer received funding from the New
Jersey State Division of Developmental Disabilities (DDD)
under two programs, the Community Services program and the
Purchase of Care program. The Community Services program
funded several group homes and a day program. Employees in
this program were represented by the CWA. The Purchase of
Care program funded services at the Main Campus and in resi-
dential units located at the Main Campus. The UAW repre-
sented these employees. In 1994, the Employer moved its resi-
dential operations from the Main Campus and opened 30 group
homes for some 200 relocated clients. Most of the UAW-
represented employees accompanied the relocated clients to the
newly opened group homes, while a smaller number remained
on the Main Campus.
Division Director Sharon Omrod oversees the 44 group
homes within the Employer’s Community Living program. Six
Assistant Directors reporting to Omrod are responsible for
seven to nine group homes each. There are approximately 44
group home managers who report to their respective assistant
directors. Each assistant director supervises both UAW- and
CWA-represented group homes.
The Employer’s 44 group homes are located in four counties
in southern New Jersey. Each group home houses from 4 to 16
clients, with an average of 6 clients per home. The group
homes are staffed 24 hours per day, 7 days per week by 250
direct care workers including counselors and technicians.6 The
direct care workers earn from $7.25 to $11 per hour. Their
average wage rate is about $8.50 to $8.60 per hour. Each group
home is under the direction of a group home manager. The
operations of the group homes are fairly uniform. The staff
assists the developmentally disabled clients with basic adaptive
living skills such as eating, dressing and hygiene and partici-
pates in an individual habilitation plan for each client. The
staff also transports the clients to and from their day programs
and doctors’ appointments, performs housekeeping duties, goes
shopping for the clients, attends meetings, and take the clients
on outings. They follow specific written shift responsibilities
established for each group home. Staffing varies at each group
home. Most often there are two group home counselors or
technicians on the first shift, two on the second shift and one on
the third shift.

5 In Case 4–RC–19595, the undersigned Regional Director on Feb-
ruary 4, 1999 issued a Decision and Direction of Election in a unit of
job coaches employed by the Employer at its Main Campus. The CWA
filed the petition in Case 4–RC–19595 and the UAW did not intervene.
6 The employees in both the UAW- and CWA-represented units em-
ployed in the group homes are collectively called direct care workers.
Group home managers work from 40 to 60 hours a week.
They earn from $10 to more than $20 per hour, with an average
of approximately $12 per hour. Group home managers work
flexible hours, but typically cover the first of three shifts, start-
ing from 7 to 9 a.m. and quitting between 4 and 6 p.m., Sunday
through Thursday or Tuesday through Saturday. They visit
other shifts as they deem necessary. Assistant directors visit
the group homes for an hour or so about once or twice per
month.
Group home managers provide coverage for each other ne-
cessitated by vacations, sick and disability leave, termination
and resignation. They assemble at the Main Campus for
weekly unit meetings, monthly department meetings and other
meetings attended by the executive director and human re-
sources department personnel. Group home managers have
transferred from UAW-represented group homes to CWA-
represented group homes. Group home managers call each
other regularly for insights on clients and staff.
Group home managers are responsible for ensuring compli-
ance with requirements established by the State’s Division of
Developmental Disabilities concerning staffing and client-care.
They are required to know the Employer’s policies, procedures,
and goals and communicate any policy changes to direct care
workers at in-service training and monthly staff meetings. The
Employer provides group home managers with training on
topics such as “Supervisory Review of Abuse, Neglect or Un-
fair Treatment,” “Attendance Policy/Payroll Review” and sex-
ual harassment issues. Group home managers may also con-
vene voluntary staff meetings at their homes to discuss issues,
problems or goals. At these meetings, group home managers
may direct the staff to take specific actions to solve minor prob-
lems in the home such as increasing their sanitation duties.
Group home managers may ask a new staff member to stay at
the home beyond his or her shift to discuss problems or ques-
tions the employee has or may wish to raise. In addition to
these duties, group home managers may also perform direct
care duties including waking clients, assisting them with their
hygiene, feeding them breakfast, giving their medication, clean-
ing, and providing transportation for them.
The Employer experiences substantial turnover among its di-
rect care workers and has found it difficult to recruit workers in
some group homes located away from the Main Campus. As a
result, the Employer holds job fairs at various locations in the
four counties in which it has group homes in order to maintain
a ready pool of applicants. Group home managers may partici-
332 NLRB No. 152
TRAINING SCHOOL AT VINELAND 1415
pate in these job fairs and interview applicants with representa-
tives from the human resources department. When the human
resources department concludes that an additional direct care
worker is needed, or when openings occur, the human resources
department gathers applications and interviews applicants.7
The human resources department, rather than the group home
managers, initiate this process; checks the applicants’ refer-
ences and their motor vehicle records. The human resources
department may contact a group home manager and ask the
manager to arrange a second interview in the group home.
When the human resources department refers the applicant to a
group home manager for a second interview, the group home
manager completes a checklist of questions based on observa-
tions of the applicant in the group home setting. The group
home manager thereafter enters a notation at the bottom of the
application form recommending for or against employment and
sends the application back to the human resources department.
There is no other communication between the group home
manager and the human resources department in connection
with an application. Not all workers obtain a second interview.
If the human resources department concludes that an applicant
is not a desirable candidate, the process ends. On some occa-
sions, the human resources department places the direct care
worker in the home without input from a group home manager.
The human resources department may also hire a direct care
worker contrary to a group home manager’s recommendation
not to hire. In this event, the human resources department will
not place the worker in that manager’s group home.
Group home managers provide orientation and on-the-job
training for new employees. Assistant directors dictate the job
tasks to be performed on each shift and direct care workers
divide the tasks among themselves. Direct care workers gener-
ally know how to perform these tasks. The group home man-
ager is responsible for assuring that the work is performed
properly, that clients are well cared for and that employees
work their required hours. Group home managers sign off on
direct care workers’ time sheets and check the shift logs and
staff paperwork to assure that the home is being run properly
and the clients are being cared for correctly. The group home
manager will counsel employees regarding performance short-
comings, require them to undergo additional or refresher train-
ing and advise them that discipline will follow if the deficien-
cies continue.
Group home managers annually receive a master schedule
showing the number of hours, the regular shift and specific
days off for each employee in each group home. The group
home manager adjusts the schedule to staff uncovered shifts
when employees call out sick, are on vacation, or are otherwise
unavailable. The group home manager follows an established
procedure regarding the order in which employees are con-
tacted for uncovered shifts. If no employee can cover the shift,
the group home manager will. The record shows that group
home managers have filled in for direct care workers and per-
formed their duties from 5 to 30 hours per week in addition to
performing their group home manager duties. Executive Direc-

7 Until April 1998, group home managers conducted the initial inter-
view.
tor Jane Detweiller testified that group home managers can
require direct care workers to come in or work a double shift.
Group home managers testified that they routinely ask, rather
than require, direct care workers to cover shifts. Employees
calling in sick or to report that they will be late must contact
their group home manager who can excuse the lateness or ab-
sence if he or she deems the reason to be an emergency. The
group home manager will note this on the employee’s time
record, and so noted, the lateness or absence is not counted as
an occurrence under the Employer’s attendance policy. That
policy requires the imposition of discipline upon the eighth
occurrence. At the end of the pay period, the group home man-
ager tallies all the hours worked by each employee, transfers
them to a time card and delivers the timecards to the assistant
director for review who then transmits them to the payroll de-
partment. Group home managers are responsible for client and
petty cash funds for the home, and are the only individuals with
access to the home’s safe. Group home managers prepare a
monthly client activity calendar and a monthly group home
assessment.
Group home managers are authorized to grant time off to
employees who have accumulated leave. These employees
must complete the appropriate forms and submit them to their
group home managers for approval which is routinely granted if
coverage can be arranged. The group home manager can deny
the request for those periods for which coverage cannot be
found. Group home managers are also authorized to approve
up to 32 hours of overtime in a pay period but must justify the
approval to their assistant directors after the fact.
Group home managers are required to be on call around the
clock and available to the direct care workers in their homes but
they have the discretion to decide whether they need to come to
the group home to address a problem. For this on-call respon-
sibility, the group home managers receive one additional vaca-
tion day per month. When the group home manager is unavail-
able, another group home manager or a higher level supervisor
must assume on-call responsibility for the group home.
Group home managers prepare evaluations of the group
home staff. In addition to providing numerical ratings on the
performance areas such as communication, reliabil-
ity/dependability, quality of work and job performance, the
group home manager provides written comments. The group
home manager discusses the evaluation with the employee,
signs and dates it, asks the employee to sign and date it, and
forwards it to the community living department director for
signature. On at least one occasion, at the suggestion of an
assistant director, the group home manager changed an evalua-
tion. A copy of the evaluation is maintained in the human re-
sources department and in the employee’s personnel file. The
evaluations do not directly affect employees’ wages. Executive
Director Detweiller testified that they can have an impact on
the Employer’s decisions regarding discharge, promotions,
work improvement plans, transfers and discipline. The record
contains no evidence of an evaluation having such an impact on
any employee’s terms or conditions of employment.
Group home managers report instances of misconduct and
poor performance by the direct care workers to their assistant
Director or to the human resources department. Group home
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1416
managers also deliver copies of disciplinary documents to the
employees in their homes. In some cases, group home manag-
ers have recommended that a particular discipline be imposed.
There are numerous instances of discipline in the record. In
some instances group home managers recommended discipline
that was imposed and, in other instances, the discipline was
ultimately not imposed. In some instances, assistant directors
have ignored group home managers’ reports of misconduct
altogether. The record also contains numerous instances in
which discipline against a group home worker was initiated and
recommended by assistant directors or the human resources
department. The Employer’s policy requires that any decision
to suspend or discharge an employee be approved by the Hu-
man Resources Department. By memorandum dated April 3,
1998, Jim Mallardi, the Employer’s director of human re-
sources, notified “all management personnel,” including group
home managers, that all disciplinary action notices must be
“communicated to” either Mallardi or the assistant director of
human resources prior to their implementation.
The collective-bargaining agreements to which both the
CWA and the UAW are parties, provide that all grievances (the
CWA agreements) or grievances concerning discipline (the
UAW agreement) may be filed in writing with the human re-
sources department after informal discussions with the em-
ployee’s immediate supervisor have proven unsuccessful or
have not been pursued. Group home managers have become
involved in resolving grievances both before and after they are
filed with the human resources department, particularly those
concerning the group home manager’s arrangements for provid-
ing staff coverage. The record shows one instance in which a
grievance was abandoned by the Union after a meeting with the
group home manager. In another instance, a group home man-
ager acknowledged to the Union and her assistant director that
she had made a mistake in not scheduling an employee. With
the assistance of the group home manager’s assistant director,
the employee was paid. There were also several written griev-
ances indicating resolution at the group home manager level,
but there is no record evidence clarifying the role played by
higher level officials.
Unlike the direct care workers, group home managers are re-
quired to have a minimum of 2 years postsecondary education
or 2 years of working with people with developmental disabili-
ties, at least 1 year of which should have been in a supervisory
capacity. The job description of the group home managers
provide that they supervise, train, communicate with staff, pro-
viding leadership to ensure that client needs are met effectively;
effectively delegate, plan, organize and manage the area super-
vised; and, supervise and schedule staff to meet coverage stan-
dards.
A finding of supervisory status is warranted only where the
individuals in question possess one or more of the indicia set
forth in Section 2(11) of the Act. Providence Alaska Medical
Center, 320 NLRB 717, 725 (1996), enfd. 121 F.3d 548, 156
LRRM 2001 (9th Cir. 1997); The Door, 297 NLRB 601 (1990);
Phelps Community Medical Center, 295 NLRB 486, 489
(1989). The statutory criteria are read in the disjunctive, and
possession of any one of the indicia listed is sufficient to make
an individual a supervisor. Providence Alaska Medical Center,
supra, 320 NLRB at 725; Juniper Industries, 311 NLRB 109,
110 (1993). The statutory definition specifically indicates that
it applies only to individuals who exercise independent judg-
ment in the performance of supervisory functions and who act
in the interest of the employer. NLRB v. Health Care & Re-
tirement Corp., 511 U.S. 571, 574; Clark Machine Corp., 308
NLRB 555 (1992). The Board analyzes each case in order to
differentiate between the exercise of independent judgment and
the giving of routine instructions, between effective recom-
mendation and forceful suggestions, and between the appear-
ance of supervision and supervision in fact. Providence Alaska
Medical Center, supra, 320 NLRB at 725. The exercise of
some supervisory authority in a merely routine, clerical or per-
functory manner does not confer unital supervisory status on an
employee. Id.; Juniper Industries, supra, 311 NLRB at 110.
The authority effectively to recommend “generally means that
the recommended action is taken with no independent investi-
gation by superiors, not simply that the recommendation is
ultimately followed.” ITT Lighting Fixtures, 265 NLRB 1480,
1481 (1982) (emphasis in original). The sporadic exercise of
supervisory authority is not sufficient to transform an employee
into a supervisor. Robert Greenspan, DDS, 318 NLRB 70
(1995), enfd. mem. 101 F.3d 107, (2d Cir. 1996), cert. denied
117 S.Ct. 68, (1996), citing NLRB v. Lindsay Newspapers, 315
F.2d 709, 712 (5th Cir. 1963); Gaines Electric, 309 NLRB
1077, 1078 (1992); Ohio River Co., 303 NLRB 696, 714
(1991), enfd. 961 F.2d 1578 (6th Cir. 1992). Job descriptions
or other documents suggesting the presence of supervisory
authority are not given controlling weight. The Board insists
on evidence supporting a finding of actual as opposed to mere
paper authority. East Village Nursing Center v NLRB, 160
LRRM 2342, 2345−2346 (D.C. Cir. 1999); Store Employees
Local 347 v. NLRB, 422 F.2d 685 (D.C. Cir. 1969); NLRB v.
Security Guard Services, 384 F.2d 143 (5th Cir. 1969), enfg.
154 NLRB 8 (1965); North Miami Convalescent Home, 224
NLRB 1271, 1272 (1976).
The burden of establishing supervisory status is on the party
asserting that such status exists. Northcrest Nursing Home, 313
NLRB 491, 496 fn. 26 (1993); see Bennett Industries, 313
NLRB 1363 (1994). The Board has cautioned that the supervi-
sory exemption should not be construed too broadly because
the inevitable consequence of such a construction would be to
remove individuals from the protections of the Act. Providence
Alaska Medical Center, supra, 320 NLRB at 725; Northcrest
Nursing Home, supra, 313 NLRB at 491. Where the evidence
is in conflict or otherwise inconclusive on particular indicia of
supervisory authority, the Board will find that supervisory
status has not been established, at least on the basis of those
indicia. Phelps Community Medical Center, supra, 295 NLRB
at 490. The legislative history of Section 2(11) makes it clear
that Congress intended to distinguish between employees per-
forming minor supervisory duties and supervisors vested with
genuine management prerogatives, and did not intend to re-
move individuals in the former category from the protections of
the Act. S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947), re-
printed in 1 Leg. Hist. 407, 410 (LMRA 1947). The legislative
history also shows that Congress considered true supervisors to
be different from lead employees or straw bosses who merely
332 NLRB No. 152
TRAINING SCHOOL AT VINELAND 1417
provide routine direction to other employees as a result of supe-
rior training or experience. Id., reprinted at 1 Leg. Hist. at 410
(LMRA 1947). Providence Alaska Medical Center, supra, 320
NLRB at 725; Ten Broeck Commons, 320 NLRB 806, 809
(1996). An individual will not be found to be a supervisor
unless he or she has a “kinship to management.” Adco Electric,
307 NLRB 1113 fn. 3 (1992), enfd. 6 F.3d 1110, 144 LRRM
2763 (5th Cir. 1993); NLRB v. Security Guard Services, supra,
66 LRRM at 2250. Further, “supervisory direction” of other
employees must be distinguished from direction incidental to
an individual’s technical training and expertise, and technical
employees will not be found to be supervisors merely because
they direct and monitor support personnel in the performance of
specific job functions related to the discharge of their duties.
Robert Greenspan, DDS, supra, 318 NLRB at 76; New York
University, 221 NLRB 1148, 1156 (1975).
Based on the foregoing, I find that the Employer has not car-
ried its burden of establishing that group home managers are
supervisors within the meaning of Section 2(11) of the Act.
There is no record evidence to establish that group home man-
agers transfer, lay off, recall, promote, or reward direct care
workers or any other employees. The evidence concerning the
authority of the group home managers to recommend effec-
tively the hiring of direct care staff is inconclusive. As dis-
cussed above, the human resources department initiates the
hiring process and may place workers in group homes without
ever contacting group home managers for input. Although
group home managers are asked, in some instances to conduct a
second interview of an applicant and to make a recommenda-
tion as to whether the applicant should be hired, the ultimate
decision rests with the human resources department, which may
or may not adopt the group home manager’s recommendation.
The only concession to the group home manager who recom-
mends that an applicant not be hired is that the applicant will be
placed in another group home. In these circumstances, I find
that the record does not show that the group home managers
have the authority claimed by the Employer. Ryder Truck
Rental, 326 NLRB 1386 (1998); Waverly-Cedar Falls Health
Care, 297 NLRB 390, 392 (1989), enfd. 933 F.2d 626, (8th Cir.
1991); Bowne of Houston, 280 NLRB 1222 (1986); Oregon
State Employees Assn., 242 NLRB 976 (1979).
A similar conclusion is warranted with respect to the role of
group home managers in the issuance of discipline. All disci-
pline must be cleared with the human resources department and
the department must approve all recommendations to suspend
or discharge employees. Group home managers clearly report
instances of misconduct and poor performance and have, on
some occasions, specifically recommended that discipline be
imposed. However, in many instances the Employer has either
not adopted or ignored group home managers’ recommenda-
tions altogether. In these circumstances, it cannot be said the
group home managers, recommendations are effective or that
the record conclusively shows that they possess the indicia of
supervisory authority. Accordingly, I find that the Employer
has not met its burden of establishing that group home manag-
ers have authority to impose or effectively recommend disci-
pline in the exercise of independent judgment within the mean-
ing of Section 2(11). Ten Broeck Commons, supra, 320 NLRB
at 809; Northcrest Nursing Home, supra, 313 NLRB at 497
(1993); Hydro Conduit Corp., 254 NLRB 433 (1981); Florida
Steel Corp., 220 NLRB 225, 227 (1975), enfd. in relevant part
544 F.2d 896 (5th Cir. 1977).
Although group home managers perform scheduling func-
tions and direct employees, the evidence falls short of demon-
strating that they exercise independent judgment in these as-
pects of their duties. The Employer provides group home man-
agers with a master schedule setting forth the hours and shifts
on which employees are to work. A group home manager may
adjust the schedule based on employee requests and as needed
for coverage with the consent of affected employees. See
Providence Alaska Medical Center, supra, 320 NLRB at 725;
Ohio Masonic Home, 295 NLRB 390, 395 (1989). As to the
direct care workers’ daily tasks, the record shows that assistant
directors dictate the jobs each shift is to perform and the em-
ployees divide the work among themselves. Direct care work-
ers know how to perform these tasks and group home managers
thus do not need to provide day-to-day direction. When Em-
ployer policies change, group home managers relay that infor-
mation to the staff in their homes, but group home managers do
not set or participate in setting that policy. The record discloses
only very minor instances in which group home managers have
directed the staff to take certain actions, such as regularly
cleaning bathrooms to solve a sanitary problem in the home.
This is routine, rather than responsible, direction within the
meaning of Section 2(11) of the Act. Providence Alaska Medi-
cal Center, supra, 320 NLRB at 725; Ten Broeck Commons,
supra, 320 NLRB at 809. Further, while group home managers
are required to be on call 24 hours per day, they usually are not
physically present at their group homes on the second and third
shifts to oversee direct care workers on those shifts. Accord-
ingly, the evidence demonstrates that group home managers
provide no more than a conduit for direction provided by Assis-
tant Directors and by changes in Employer policy and that they
do not responsibly direct group home staff. Providence Alaska
Medical Center, supra, 320 NLRB at 725; Hexacomb Corp.,
313 NLRB 983, 984 (1994).
The Employer also failed to meet its burden of establishing
that group home managers exercise 2(11) supervisory authority
in preparing performance evaluations for the direct care work-
ers in their homes. The evaluations are not tied to employee
wage increases or promotions, nor do they directly affect any
employee term or condition of employment. Although Execu-
tive Director Detweiller testified that evaluations can have an
impact on the Employer’s decisions regarding discharge, pro-
motions, work improvement plans, transfers and discipline, the
Employer presented no evidence of an employee evaluation
having any specific positive or negative impact on any em-
ployee’s terms or conditions or employment. In the absence of
specific evidence demonstrating such an impact, the Em-
ployer’s unsubstantiated assertions are insufficient to establish
supervisory authority based on this aspect of group home man-
agers’ duties. Ahrens Aircraft, 259 NLRB 839, 843 (1981),
enfd. 703 F.2d 23 (1st Cir. 1983); Beth Israel Medical Center,
229 NLRB 295, 295 (1977).
The record shows that group home managers have been in-
volved in resolving employee complaints about scheduling
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1418
issues, obtaining staff coverage and other matters within their
purview. These complaints have been resolved both before and
after a grievance was filed. The Board has held that authority
to resolve these sorts of minor disputes is insufficient to estab-
lish supervisory status. Riverchase Health Care Center, 304
NLRB 861, 865 (1991). Accordingly, I find that no primary
indicia of supervisory status have been established for group
home managers. That they are paid more than direct care staff,
are salaried and earn an extra vacation day for on-call responsi-
bilities will not render them supervisors where no primary indi-
cia of supervisory status exists. First Western Building Ser-
vices, 309 NLRB 591, 603 (1992).
Based on the above, I find that group home managers are not
supervisors within the meaning of Section 2(11) of the Act.8

8 See also Green Acres Country Care Center, 327 NLRB 257
(1998). Contra Resident Home for the Mentally Retarded, 239 NLRB 3
(1978) (housemothers who responsibly directed the staff of their group
homes, granting them time off, controlling and adjusting their work-
loads and recommending discipline were supervisors); Mon Valley
United Health Services, 238 NLRB 916, 923–925 (1978) (resident
managers scheduled and assigned tasks to staff, wrote employee
evaluations, made recommendations regarding the hiring of staff and
the program director who supervised the resident managers did not
directly supervise the staff of the group home).

332 NLRB No. 152