COMMUNITY EDUCATION CENTERS, INC

National Labor Relations Board - Board Decisions

Jan 9, 2014

360 N.L.R.B. 85 (N.L.R.B. 2014)

COMMUNITY EDUCATION CENTERS, INC. 85
360 NLRB No. 17
Community Education Centers, Inc. and District
1199J, NUHHCE, AFSCME, AFL–CIO, Peti-
tioner. Case 22–RC–106424
January 9, 2014
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MISCIMARRA
The Employer’s Request for Review of the Acting Re-
gional Director’s Decision and Direction of Election is
granted as it raises a substantial issue solely with respect
to the Acting Regional Director’s finding that the shift
and unit supervisors (collectively, Supervisors) at the
Employer’s Logan Hall facility do not possess the au-
thority to responsibly direct the Employer’s operations
and unit counselors (collectively, Counselors). (Regional
Director’s Decision and Direction of Election is attached
as an appendix.) In all other respects, the Request for
Review is denied.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully examined the entire record with re-
spect to the issue on review, we disagree with the Acting
Regional Director that the Supervisors do not possess the
required authority to take corrective action regarding a
Counselor’s deficient performance. However, we affirm
on different grounds the Acting Regional Director’s find-
ing that the Supervisors do not responsibly direct within
the meaning of Section 2(11) of the Act and therefore are
not statutory supervisors.1
Specifically, we find merit in the Employer’s argument
that the Acting Regional Director erred in finding that
the Employer had not demonstrated that the Supervisors
possess the required authority to take corrective action
regarding a Counselor’s deficient performance. The Act-
ing Regional Director based that finding on the absence

1 In Oakwood Healthcare, Inc., 348 NLRB 686, 692 (2006), the
Board interpreted the phrase “responsibly to direct” as requiring ac-
countability. To establish accountability, “it must be shown that the
employer delegated to the putative supervisor the authority to direct the
work [of others] and the authority to take corrective action, if neces-
sary[,]” and also “that there is a prospect of adverse consequences for
the putative supervisor if he/she does not take these steps.” The Board
emphasized that “the person directing and performing the oversight of
the employee must be accountable for the performance of the task by
the other.” Id. In addition, supervisory status under Sec. 2(11) requires
the exercise of independent judgment in carrying out a supervisory
function. “[A] purported supervisor does not exercise independent
judgment when making assignments based on an employer’s detailed
policies, a collective-bargaining agreement, or other such directives, or
when such assignments are routine in nature.” Alternate Concepts,
Inc., 358 NLRB 292, 295 (2012) (citing Oakwood Healthcare, supra at
693).
of evidence that the Supervisors can recommend disci-
pline, or cause a dismissal through an unsatisfactory
evaluation. We agree with the Employer that the Acting
Regional Director set the standard for corrective action
too high, as the threshold of corrective action for purpos-
es of demonstrating responsible direction falls below that
of other Section 2(11) indicia, including disciplinary and
promotion authority. See CGLM, Inc., 350 NLRB 974,
974 fn. 2, 983–984 (2007), enfd. mem. 280 Fed. Appx.
366 (5th Cir. 2008); see also Croft Metals, Inc., 348
NLRB 717, 722 fn. 13 (2006) (issuing verbal warnings
or taking a recalcitrant employee to personnel office con-
stitutes “corrective action”). Applying the correct stand-
ard, we find that the Supervisors do possess authority to
take corrective action. The evidence (for example, the
disciplinary notices issued by Supervisors to Counselors)
indicates that the Supervisors can take corrective action
by recording Counselors’ failures to follow proper pro-
cedures and by providing related training. While these
corrective actions fall short of “disciplinary authority”
under Section 2(11) because the Supervisors cannot im-
pose or effectively recommend discipline, they do in-
volve reporting deficiencies in the Counselors’ perfor-
mance to the disciplinary committee,2 which then for-
wards the information to the corporate office for a final
decision. See Croft Metals, supra.
Having found that the Supervisors can take corrective
action as to the Counselors, we further find, however,
that the Employer did not satisfy its burden of proof as to
the other elements required to establish that the Supervi-
sors’ direction of the Counselors constitutes responsible
direction under Section 2(11): accountability and the
exercise of independent judgment. First, based on the
record evidence, we find that the Employer did not
demonstrate that the Supervisors “responsibly” direct the
Counselors because there is insufficient evidence that
there is a prospect of adverse consequences for the Su-
pervisors if the Counselors perform poorly. See G4S
Regulated Security Solutions, 358 NLRB 1701, 1704
(2012); Entergy Mississippi, Inc., 357 NLRB 2150,
2154–2156 (2011). In reviewing the disciplinary and
supervision notices and evaluations issued to Supervisors
submitted into evidence by the Employer–which we as-
sume represent at least “the prospect of adverse conse-
quences” to the Supervisor–we find that they concern the
Supervisors’ own performance rather than that of the
Counselors. Therefore, the notices and evaluations do
not demonstrate that the Employer holds the Supervisors

2 The disciplinary committee is comprised of the supervisor of oper-
ations at Logan Hall, a human resources official, and the assistant to
Logan Hall’s director.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD86
accountable for the Counselors’ poor performance. See
id.
Second, the Employer did not demonstrate that the Su-
pervisors direct the Counselors using independent judg-
ment. The notices and evaluations issued by the Super-
visors to the Counselors, also submitted into evidence by
the Employer, fail so to establish. These documents
merely indicate that the Supervisors correct Counselors
in such tasks as writing reports on resident behavior,
maintaining the logbooks, filling out unit inspection/tour
sheets, and addressing the residents. We find that the
Employer has not demonstrated that the Supervisors’
direction of Counselors in performing these tasks is not
controlled by the Employer’s own policies and proce-
dures or involves a degree of discretion rising above the
merely routine. See Oakwood, supra, 348 NLRB at 692–
693.
Therefore, we agree with the Acting Regional Direc-
tor’s conclusion that the Supervisors do not possess the
supervisory authority under Section 2(11) to responsibly
direct the Counselors. Accordingly, we remand this pro-
ceeding to the Region for further action in accordance
with our Decision.
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I join my colleagues in granting the Employer’s re-
quest for review of the Acting Regional Director’s Deci-
sion and Direction of Election with respect to his finding
that the shift and unit supervisors (Supervisors) do not
possess authority to responsibly direct the operations and
unit counselors (Counselors), and in denying review in
all other respects. I agree with my colleagues that the
Acting Regional Director applied the wrong standard to
find that the Supervisors lack authority to take “correc-
tive action” when the Counselors’ performance is defi-
cient, and that, under the applicable standard, the Em-
ployer has shown that the Supervisors do have that au-
thority. My colleagues then find that the Supervisors are
not statutory supervisors because they are not held ac-
countable for the Counselors’ poor performance and they
do not exercise independent judgment. I reach the same
result, but solely for the latter reason.
I disagree with my colleagues’ interpretation of “ac-
countability,” which would find that a putative supervi-
sor is not accountable unless he or she faces adverse con-
sequences directly as a result of others’ poor perfor-
mance. This restrictive interpretation improperly fails to
recognize that “accountability” can exist based on “the
supervisor’s own conduct and judgment in exercising
oversight and direction of employees in order to accom-
plish the work.”1 Under this standard, the Employer here
does hold the Supervisors accountable for their direction
of Counselors because the evidence establishes that Su-
pervisors have suffered adverse consequences for failing
to adequately oversee the Counselors’ performance of
their tasks.2
I agree, however, with my colleagues that the Employ-
er has not shown that the Supervisors exercise independ-
ent judgment in directing the Counselors. The burden of
proof rests with the Employer as the party seeking to
demonstrate Section 2(11) status,3 and the Employer has
not adduced any evidence to show that the Supervisors’
direction of the Counselors was other than routine and
narrowly circumscribed by the Employer’s policies and
procedures. To be sure, “the mere existence of [such]
policies does not eliminate independent judgment from
decision-making if the policies allow for discretionary
choices,”4 but the Employer did not make that showing.
Accordingly, I join in finding that the Supervisors do not
possess the Section 2(11) authority to responsibly direct the
Counselors, and in remanding this proceeding to the Acting
Regional Director for further appropriate action.
APPENDIX
DECISION AND DIRECTION OF ELECTION
I. INTRODUCTION
Petitioner, DISTRICT 11991, NUHHCE, AFSCME, AFL–
CIO (the Union) filed a representation petition pursuant to
Section 9(c) of the National Labor Relations Act. The Un-
ion seeks to represent all full-time and regular part-time shift
supervisors and unit supervisors employed by Community
Education Centers, Inc. (the Employer) at the Employer’s
Logan Hall facility (Logan Hall) located at 20 Toller Place,
Newark, New Jersey.1 The Employer argues that the peti-

1 Entergy Mississippi, Inc., 357 NLRB 2150, 2158 (2011) (Member
Hayes, dissenting) (citing Oakwood Healthcare, Inc., 348 NLRB 686,
692 (2006)).
2 For example, Employer Exh. 9 includes “Performance Discus-
sions” and a “Disciplinary Action” issued to Unit Supervisor Ira Hoop-
er for his failure to properly oversee the Counselors’ performance of
their tasks. Supervisor of Operations Tommy Odom testified without
contradiction that the Performance Discussions were the “first part . . .
of our disciplinary stage” for Supervisors. And in a “Rebuttal” to the
Disciplinary Action, Hooper wrote that he felt “this last warning, disci-
plinary write up is unwarranted.” Thus, Hooper and Odom both under-
stood that Supervisors are held accountable for their failure to properly
direct and oversee the Counselors.
3 See NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–
712 (2001).
4 Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006).
1 The petition was amended at the hearing to remove an Assistant II
classification. In this regard, the parties stipulated that the Employer
voluntarily recognized the Union as the collective-bargaining repre-
sentative for the Assistant II classification. Accordingly, my decision
in this matter will concern only the classifications of the shift supervi-
sor an d unit supervisor.
COMMUNITY EDUCATION CENTERS, INC. 87
tioned-for unit is inappropriate inasmuch as the shift super-
visors and unit supervisors are supervisors as defined in the
Act, and that the petition should be dismissed.2 The Employer
argues that the shift supervisors and unit supervisors (collec-
tively Supervisors) are supervisors as defined in the Act be-
cause they discipline and effectively recommend discipline of
the Employer’s operations counselors and unit counselors (col-
lectively Counselors), responsibly direct and assign the work
of the Counselors, have the authority to adjust grievances,
effectively recommend applicants for hire and because they
are responsible for performing formal annual evaluations of
the Counselors which can affect a Counselor’s employment
status. Based on the following facts and analysis, I reject the
Employer’s arguments and order an election as set forth below.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has designated its authority in this proceeding to the
undersigned. Upon the entire record in this proceeding3 the
undersigned finds:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are hereby affirmed;
2. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdictions herein4
3. The labor organization involved claims to repre-
sent certain employees of the Employer;5
4. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c) (1) and Section
2(6) and (7) of the Act;
5. The following employees of the Employer con-
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act for the reasons described infra:
All full-time and regular part-time shift supervisors and unit
supervisors employed by the Employer at its Logan Hall
facility in Newark, New Jersey, excluding all other employ-
ees, guards, and supervisors as defined by the Act.
II. FACTS
A. Background
The Employer, Community Education Centers, Inc. (CEC)
is a Delaware Corporation engaged in providing “re-entry”
social services and drug/alcohol treatment programs to incar-

2 The parties stipulated that if the issue of whether shift supervisors
and unit supervisors are statutory supervisors under the Act were set
aside, the unit and shift supervisors are an appropriate unit for collec-
tive bargaining.
3 Briefs filed by the Petitioner and the Employer have been duly
considered.
4 The parties stipulated at the hearing that during the preceding 12
months the Employer derived gross revenue in excess of $250,000 and
that, during the same period of time, the Employer purchased and re-
ceived at its Newark, New Jersey facility goods and supplies valued in
excess of $5000 directly from enterprises located outside the State of
New Jersey.
5 The parties stipulated, and I find, that the Union is a labor or-
ganization within the meaning of Sec. 2(5) of the Act.
cerated and/or paroled individuals at various New Jersey facili-
ties including its Logan Hall facility at 20 Toller Place, New-
ark, New Jersey, the only facility involved here. Some of the
Logan Hall residents come to the program upon their own
application, while others are referred from the criminal justice
system. Logan Hall can accommodate approximately 600 resi-
dents.
Logan Hall is hierarchically structured into two general divi-
sions: Operations and Clinical. The facility has three residen-
tial units: two male units and one female unit. The main units
are further divided into smaller housing units or “pods” which
can accommodate up to 75 residents each. The Operations
Division (Operations) is responsible for security at the facility
and monitoring the residents’ movements throughout the fa-
cility. The Clinical Division (Clinical) is responsible for
providing treatment services and for providing security within
the units.
Within the units, in the Clinical Division, the residents are
monitored by unit counselors, who are responsible for monitor-
ing resident behavior, documenting resident behavior, and
supervising all resident movements and activities within their
assigned areas. Unit counselors are overseen by unit supervi-
sors, who in turn report to the unit managers. In the Opera-
tions Division, Operations Counselors function as the unit
counselors’ counterparts, monitoring and overseeing resident
movements outside of the units. The Operations Counselors
are overseen by shift supervisors, who in turn report to the Su-
pervisor of Operations.6
CEC operates Logan Hall on three shifts. The first shift is
from 7 a.m. to 3 p.m. There are usually five operations coun-
selors and one shift supervisor scheduled for this shift in Op-
erations, with eight unit counselors and four to five unit su-
pervisors scheduled in Clinical. The second shift runs from 3
p.m. to 11 p.m., typically with three to four Operations counse-
lors, one shift supervisor, eight unit counselors and three unit
supervisors. The third shift runs from 11 p.m. through 7 a.m.
Unit counselors and unit supervisors do not work this shift.
Typically, there are eight or nine Operations counselors and
two shift supervisors working on the third shift. Unit manag-
ers work from either 8 a.m. to 4 p.m. or 9 a.m. to 5 p.m., while
the Supervisor of Operations works from 9 a.m. through 5 p.m.
At the time of the hearing, there were six shift supervisors
at Logan Hall: Karriem Curl, Frederick Austin, Durwin
Smalls, Thomas Jacobs, Wasi Willoughby, and Raymond
Hopkins. There were also seven unit supervisors: Ira
Hooper, Nathaniel Ghant, Celeste Muhommad Darryl Wells,
Sherrie Belle, Yolanda Daval, and Lucandy Manley. Unit
supervisors and shift supervisors are cross-trained to prepare
them to function in either capacity. 7

6 Although unit managers and the supervisor of operations occupy
the same level at the employer’s organizational chart, the employer’s
witness, Supervisor of Operations Tommy Odom, testified that the
supervisor of operations supervises the unit managers.
7 As the unit and shift supervisors’ job functions are nearly iden-
tical and these individuals are cross-trained to perform either job
and, as the record often does not distinguish between the two classi-
fications, unit and shift supervisors will sometimes be referred to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD88
At the hearing, the Employer’s only witness was Tommy
Odom (Odom), the Supervisor of Operations at Logan Hall.
Odom oversees the operation of the entire facility. Odom
has worked for CEC since 2001, first as a Counselor, then as
a unit supervisor. Odom was promoted to Supervisor of Oper-
ations in 2005 and has worked in that capacity ever since. The
Union’s only witness was Ira Hooper8 (Hooper), a unit supervi-
sor at Logan Hall. Hooper has been a unit supervisor for
approximately 6 years. During the 2 years prior to that,
Hooper worked as a unit counselor and property manager at
Logan Hall.
B. Hire, Transfer, Layoff, and Promote
Although the Employer has had occasion to lay off em-
ployees, the unit and shift supervisors do not participate in
that decision-making process. Odom stated that Supervisors
make recommendations for employee transfers, though the
record is not clear as to what that process is and the extent
of the Supervisors’ participation. According to Odom if a
position opens up, a Counselor may request a transfer.
Odom also stated that Supervisors could not transfer em-
ployees without first discussing the issue with a unit manager,
the Deputy Director or the Director.
Odom also stated that supervisors frequently refer potential
employees for hire and make recommendations on their em-
ployment applications. According to Odom, the supervi-
sors’ hiring recommendations are typically followed. Odom
stated that Hooper had made recommendations around three or
four times but could not recall if any of the persons Hooper
recommended were hired. Hooper testified that he had re-
ferred approximately ten persons for employment, none of
whom were hired. Hooper also stated that he had no
knowledge as to the qualifications of those applicants with
respect to the Employer’s hiring requirements. Odom testi-
fied that while in the past, Supervisors have sat in on inter-
views of potential hires, Supervisors do not regularly partici-
pate in the hiring process and that the Director makes the
hiring decisions. Hooper testified that he had sat in on inter-
views in the past. He also stated that he had participated in
the interviewing process on three occasions by asking
questions and making hiring recommendations. However,
Hooper has not participated in the interview process in approx-
imately3 years.
C. Suspension and Discharge
When asked if Supervisors have the authority to sus-
pend or discharge an employee, Odom did not address the
issue of discharges and the record is otherwise devoid of
evidence relating to Supervisors’ authority to discharge em-
ployees. With regard to suspensions, Odom stated that a
Supervisor has the authority to send an employee home if,
for example, the Supervisor observes the employee engaging
in improper touching or hitting or sleeping on the job. He
further testified that, in this type of situation, the employee

herein simply as “Supervisors,” unless it is necessary to make a
distinction between the two classifications.
8 Hooper testified at the Hearing pursuant to a subpoena.
would be sent home pending investigation and the issue would
be forwarded to the appropriate staff for follow up. Odom was
unable to provide specific examples within the past 2 years
where an employee was sent home by a Supervisor and the
situation was documented and addressed the following day.
Hooper testified that he has never sent an employee home from
work.
D. Discipline
Odom testified that the Supervisors’ role in the discipline of
Counselors9 is to document the situation and make a verbal
recommendation as to the nature and extent of the disci-
pline. According to Odom, these recommendations are taken
under advisement by the Disciplinary Committee and finally
forwarded to the corporate office, where the final decision on
the nature and extent of the discipline is made. The Discipli-
nary Committee is comprised of Odom; Chris Maslenko from
Human Resources; and Miss Johnson, assistant to the Director.
Hooper testified that his role in filling out a Disciplinary Action
Form is to provide a description of the incident in the witnesses
section of the document and then submit the form to his Clini-
cal Director. Hooper stated that he does not check the box on
the disciplinary form in the sections marked “Disciplinary ac-
tion to be taken” and further stated that in the past, he was
specifically told by his Clinical Director not to check that box.
Hooper further testified that he had never been asked to make a
disciplinary recommendation.
Odom testified that the Supervisors make verbal recommen-
dations which are followed 85 to 90 percent of the time.
Odom stated that Supervisors are not expected to make any
written recommendations for specific discipline. He further
testified that he has specifically instructed Supervisors not to
check the boxes on the disciplinary forms which indicate the
level of discipline the employee will receive. Odom also testi-
fied that the boxes which reflect the recommended discipli-
nary action (i.e., verbal, written, suspension, final warning and
termination) are not checked by the Supervisors or the
Disciplinary Committee. Instead, the Disciplinary Committee
sends the disciplinary forms to the corporate office without a
specific written disciplinary recommendation.
Odom testified that the Staff Supervision or Staff Perfor-
mance forms are “supervisions,” which are prepared by Super-
visors and could lead to discipline. Odom stated that the Em-
ployer uses two different types of forms to address employee
issues: a disciplinary form and a supervision form. He further
stated that supervision forms are not disciplinary in nature, that
the forms are essentially a training tool and a means of docu-
menting different situations. Odom also stated that a Supervisor
could not write up another Supervisor for disciplinary action
and that for discipline to occur the matter would have to go
through the Disciplinary Committee and then to the corporate
office for a final decision.

9 It should be noted that Odom testified that the Employer uses
the same job description for unit counselors and Operations counse-
lors. Thus, any reference to “Counselors” in this analysis will refer-
ence either or both unless, for the purposes of this inquiry, some
meaningful distinction is necessary.
COMMUNITY EDUCATION CENTERS, INC. 89
E. Adjust Grievances
The Employer’s unit and Operations counselors are repre-
sented for collective bargaining by District 1199J. Under the
parties’ collective-bargaining agreement, an employee with
a grievance, or the employee’s union delegate, shall submit a
written grievance to the employee’s supervisor within 72
hours of the incident. The supervisor, in turn, shall provide
the employee and the union delegate a written response within 5
working days.10 Odom acknowledged that Supervisors do not
have the authority to resolve a suspension grievance by re-
scinding a suspension. He further testified that only at step two
of the grievance procedure, which involves the Director, can
that type of remedy be approved. When asked whether a
Supervisor could resolve a grievance claiming an employ-
ee was skipped on the overtime list, Odom replied that the
Supervisors could resolve it in the sense of substantiating the
grievance facts but that the final resolution would have to
go through the same process as a suspension -via the Direc-
tor. When pressed to provide any example of a type of
grievance which a Supervisor could resolve on his own au-
thority, Odom could provide only one general example. He
stated that where a Counselor’s tardiness caused another
Counselor to be relieved late from his or her shift, the Supervi-
sor could ensure that the Counselors fill out tardy slips.
F. Assign
Supervisors are responsible for the Counselors’ training.
Odom testified that shift supervisors and unit supervisors
assign specific tasks to Counselors and prioritize their daily
work. Odom stated, for example, that Supervisors will assign
Counselors to conduct room searches, to facilitate orientation
or to monitor meal movements. Odom stated that the Opera-
tions counselors’ duties, such as signing residents in and out,
monitoring meal and recreation (rec) movements, and con-
ducting searches, are carried out in accordance with company
policy. With respect to whether Supervisors have discretion
to change the order in which the Counselors’ tasks are per-
formed, Odom testified that the physical plant inspection,
counts, rec movement, and meal movements all run according to
prescribed times and schedules. In response to the question of
whether the Supervisors had discretion over the time during
which any particular task was to take place, Odom said,
“[m]aybe Clinical Intervention Committee.” The record does
not indicate, however, what a Clinical Intervention Committee
is, what role the Supervisors play regarding the Committee,
who comprises the Committee, or how often the Committee
meets.
Odom testified that Supervisors have the authority to allow
a Counselor to leave early, if requested. He further stated that,
in the event that additional manpower is needed, the Supervi-
sors have the authority to call in additional workers, even if the
decision would cause the Employer to incur overtime. Odom
stated that the Supervisors can bring in additional manpower
when a Counselor calls out sick. Odom stated that the proce-

10 Odom was not familiar with this aspect of the contract and, af-
ter reviewing the contract to refresh his memory, incorrectly stated
that a supervisor had 72 hours to respond after a grievance was filed.
dure a Supervisor would follow is to ask someone from the
previous shift to stay for an additional shift. Odom also
stated that the Supervisors follow a procedure where they
must utilize one of two rotating lists, a mandatory rotating
list and a voluntary rotating list. Supervisors do not have the
discretion to deviate from these lists. Hooper testified that he is
not responsible for calling in replacement employees when
someone calls out sick.
Odom testified that he personally makes the schedule for
the Operations and Clinical Divisions, with regard to how
many Counselors and Supervisors are assigned to each unit.
The specific post assignments are then made by the Super-
visors when Counselors arrive for their scheduled shift. Ac-
cording to Odom, the Supervisors make the specific assign-
ments because, due to their daily interaction with the Counse-
lors, they are better able to assess the Counselors’ strengths
and weaknesses. As an example, Odom stated that a Supervisor
might assign a certain Counselor to a pod because it has a
population of younger residents. Odom stated that the Opera-
tions Counselors all have the same skills set and education-
al requirements. He further stated that the Supervisors respon-
sibilities are identical on all the shifts and without regard to the
particularpod or unit to which they are assigned.
Odom testified that the posts for Operations are in main re-
ception, the “white mile,” the “green mile,” and “meals.” The
posts for Clinical are in the units and pods. The required num-
ber of Counselors and Supervisors for each unit and pod is
predetermined. The specific posts in each unit and pod are
also predetermined and the posts for each shift are always
the same. Hooper testified that, as a unit supervisor, he does
not assign Counselors to those particular posts. He further
stated that two of the four Counselors with whom he typi-
cally works have documents in their employee files which
dictate what their assignments will be. Hooper stated that he
does have the authority to assign the Counselors to different
pods, if their assignments are not specified in their employee
file.
G. Responsibly Direct
According to Odom, Supervisors perform annual written
evaluations for Counselors. Odom stated that these evalua-
tions could form the basis for an employee’s loss of employ-
ment or promotion, depending upon the nature of the evalua-
tion. On cross-examination, Odom stated that Supervisors do
not, on the Counselors’ annual performance appraisals, make
recommendations with regard to promotions. The evaluation
forms the Supervisors initiate are the only forms used for the
purposes of evaluating the Counselors’ performance. Odom
also stated that the appraisal is essentially “the Supervisor’s
observation of the employee.”
Hooper testified that, while it is part of his job responsibilities
to fill out annual appraisals for Counselors, he has never rec-
ommended that someone be promoted based on his appraisal.
He further stated that his responsibilities as a unit supervisor
were to take care of the discipline of the residents, to make sure
the clinical schedule was followed, and to make sure the log
books are being properly maintained. Hooper stated that Coun-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD90
selors maintain the logbooks or keep the units clean in accord-
ance with their job description and not at his direction.
Odom testified that Supervisors can receive discipline for not
properly supervising the Counselors. To evidence this, the
Employer provided various documents,11 including a written
“Performance Discussion” for Unit Supervisor, Ira Hooper,
from 2009. The issue, as reflected in this Performance Dis-
cussion, was workplace cleanliness. Under a section head-
ing entitled “Impact on Performance” the document states that
“[u]nsatisfactory supervision of unit maintenance cannot and
will not be allowed to continue.” The section of the document
entitled “Available Support” notes that “[i]t’s very important
that you as a leader train and support your subordinates”.
Hooper’s immediate supervisor, as identified on this 2009
document, was Unit Supervisor Nathaniel Ghant (Ghant). At
the bottom of the document, below the signature line for Hoop-
er’s immediate supervisor, the signature of a second level super-
visor appears as well.
Other documents were provided by the Employer to sup-
port the claim that Supervisors are held accountable for the
performance of the Counselors.12 A “Disciplinary Document”
from 2010 indicates that Hooper’s unsatisfactory supervision
of unit maintenance and unit logbooks had an impact on the
Employer’s operation. Hooper’s written objection to the dis-
cipline states that he followed the proper procedures with re-
gard to holding the counselors responsible for not following
procedures. A “Staff Supervision” document, dated January
18, 2012, shows that Nathaniel Ghant, as Hooper’s supervi-
sor, questioned Hooper’s supervisory skills “due to the lack of
reinforcing or evaluating previous unit areas . . .”. The
document also states that the unit inspection sheet should
eliminate a lot of the unit issues in question and directs Hoop-
er to have the Counselors log in their tours, bathroom clean-up,
etc. Hooper testified that there are policies and procedures gov-
erning the use of the log book with specific examples of the
information to be entered. He also stated that keeping the
units clean is part of the Counselors’ daily responsibilities.
Hooper also stated that the residents actually perform the unit
cleaning and the Counselors and Supervisors ensure that this
cleaning is done properly. Hooper maintained that he was
disciplined for not holding the residents responsible for clean-
ing the units. Hooper then acknowledged that the discipline
was also issued for failing to supervise the Counselors with
regard to cleanliness in the unit.
Another document submitted by the Employer, a Staff Su-
pervision, dated December 1, 2011, criticizes Hooper’s per-
formance for not providing supervision to staff about fire drill
procedures. Finally, a Staff Supervision, dated October 20,
2011, documents concerns that Hooper was not ensuring that
plans and policies were being implemented properly.
In further support of the Employer’s claim that Supervi-
sor’s are accountable for the performance of the Counselors,
the Employer provided “Job Performance Appraisals” for
Shift Supervisors Saleema Williams and Karriem Curl and Unit
Supervisor Ira Hooper. According to the Job Performance

11 See Employer Exh. 9.
12 See Employer Exh. 9.
Appraisals, supervisory skills account for 20 percent of the
overall rating of the Supervisors.
H. Secondary indicia
Supervisors are salaried employees, exempt from overtime
and earn between $32,000 and $40,000 dollars annually. Writ-
ten offers of employment for shift and unit supervisor positions
indicate that Supervisors may participate in the Employer’s
401(k) plan. Written offers of employment provided by the
Employer reflect that Counselors hired in 2013 made
$11.07 hourly. Odom testified that Counselors are non-
exempt hourly employees and typically earn approximately
$23,000 dollars annually.
Odom testified that, although he does not work the third
shift, he is very often called by Supervisors during this time to
discuss incidents at the facility. Additionally, Odom stated that
Mr. Palumbo, the Deputy Director, and Miss Leslie, the
Director, are also on call if problems occur. Odom further
testified that during the third shift, Supervisors are the
highest ranking administrative officials in the building. Odom
also stated that the Supervisors are required to call him for every
major issue that occurs during the third shift.
III. LEGAL ANALYSIS
A. Standard for Supervisory Status
Section 2(3) of the Act excludes from the definition of
the term “employee” “any individual employed as a supervi-
sor.” Section 2(11) of the Act defines a “supervisor” as:
Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such author-
ity is not merely of a routine or clerical nature, but requires
the use of independent judgment.
Individuals are “statutory supervisors if: 1) they hold the
authority to engage in any one of the 12 listed supervisory
functions, 2) their exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment, and 3) their authority is held in the
interest of the employer.” NLRB v. Kentucky River Community
Care, 532 U. S. 706, 713 (2001).
In applying this three part test, the Board continues to fol-
low certain established principles. First, the party asserting
supervisory status bears the burden of proof. Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006); NLRB v.
Kentucky River Community Care, 532 U.S. 706, 711–712
(2001). Second, any lack of evidence is construed against the
party asserting supervisory status. Elmhurst Extended Care
Facilities, Inc., 329 NLRB 535, 536 fn. 8 (1999). Third,
purely conclusionary evidence is not sufficient to establish
supervisory status. Volair Contractors, Inc., 341 NLRB 673,
675 (2004); Sears, Roebuck & Co., 304 NLRB 193, 194
(1991).
With regard to the exercise of supervisory authority, the
Board has determined that individuals who possess the au-
thority as defined in Section 2(11) of the statute can be held to
COMMUNITY EDUCATION CENTERS, INC. 91
be supervisors even if the authority has not been exercised.
Fred Meyer Alaska, Inc., 334 NLRB 646 (2001). Although
the Act demands only the possession of Section 2(11) au-
thority, not its exercise, the evidence still must be persuasive
that such authority exists. Avante at Wilson, Inc., 348 NLRB
1056, 1057 (2006). Job titles, job descriptions, or similar
documents are not given controlling weight and will be
rejected as mere paper, absent independent evidence of the
possession of the described authority. Golden Crest
Healthcare Center, 348 NLRB 727, 731 (2006), citing
Training School at Vineland, 332 NLRB 1412, 1416 (2000);
See also Chevron Shipping Co., 317 NLRB 379, 381 fn. 6
(1995) (conclusionary statements without specific explanation
are not enough).
Additionally, the Board cautions against finding supervi-
sory authority based only on infrequent instances of its exist-
ence. Family Healthcare, Inc., 354 NLRB 254 (2009) (over-
ruled on other grounds); Golden Crest Healthcare, supra at
730, fn. 9. To separate straw bosses from true supervisors,
the Act prescribes that the exercise of supervisory indicia be
in the interest of the employer and requires the use of inde-
pendent judgment. Accordingly, “the exercise of some su-
pervisory authority in a merely routine, clerical, perfunctory
or sporadic manner does not confer supervisory status on an
employee.” Somerset Welding & Steel, Inc., 291 NLRB 913
(1988), quoting Feralloy West Co., 277 NLRB 1083, 1084
(1985).
Thus, “the Board . . . exercise[s] caution not to construe
supervisory status too broadly because the employee who is
deemed a supervisor is denied rights which the Act is in-
tended to protect.” Oakwood Healthcare, Inc., 348 NLRB 686,
688 (2006), quoting Chevron Shipping Co., 317 NLRB 379,
381 (1995); Azusa Ranch Market, 321 NLRB 811, 812 (1996).
B. Layoff, Transfer and Hire
The record clearly indicates that unit and shift supervisors do
not participate in decisions regarding layoffs. Although the
Employer’s witness Odom made conclusionary statements that
Supervisors make recommendations for employee transfers,
the example Odom provided showed only that a Counselor
may request a transfer. The Employer provided no specific
evidence as to what the transfer process entails and what, if
any role a Supervisor plays in that process. As stated, supra,
purely conclusionary evidence is not sufficient to establish
supervisory status. The burden of proof being on the party
asserting supervisory status, the Employer has not met its bur-
den with regard to layoffs and transfers.
Turning to the question of whether the Supervisors exercise
authority to hire or recommend candidates for employment, the
evidence is insufficient to answer in the affirmative. The Em-
ployer’s sole witness, Mr. Odom, made a general statement
that the Supervisors’ hiring recommendations were typically
followed. However, Odom provided no specific examples of
hiring decisions made either by Supervisors or on the recom-
mendation of a Supervisor. Though Odom and Hooper had
differing recollections as to the number of candidates Hooper
had recommended in the past, both testified that none of the
individuals Hooper recommended were actually hired. Thus,
the evidence as to Hooper’s recommendations shows only
that the Employer did not follow those recommendations.
Additionally, the record does not provide any evidence of the
process whereby the Employer takes a Supervisor’s hiring
recommendation under advisement in its hiring decisions. Nor
does the record provide a single specific example of a hiring
decision made based upon a Supervisor’s recommendation.
Thus, the Employer has not met its burden of proof on this
point. Turning to the Supervisors’ participation in the inter-
viewing process, Hooper stated that, on three occasions during
his 6 years as a Supervisor, he participated in interviews with
employment candidates. He also testified that, during these
interviews, he had questioned the candidates and made rec-
ommendations whether or not to hire them. However,
Hooper also stated that he has not participated in the interview
process in about 3 years. In support of the Employer’s conten-
tion that the Supervisors have the authority to meaningfully
participate in the hiring process, Odom stated that Supervisors
have sat in on interviews for potential hires. However, Odom
also stated that Supervisors do not regularly participate in
the interviewing process and that the Director makes the
hiring decisions. As noted in Somerset Welding & Steel,
“the exercise of some supervisory authority in a merely. . .
sporadic manner does not confer supervisory status on an
employee.” The evidence on this issue shows that, at most,
Supervisors have participated in interviews only sporadically.
The evidence further shows that the actual hiring decision-
makingauthority resides with the Director, not the Supervisors.
Given the scant evidence as to the Supervisors’ role in hir-
ing, effectively recommending for hire, and interviewing
potential hires, and the principle that any lack of evidence
will be construed against the party asserting supervisory status,
I find that the evidence does not support the Employer’s claim
that Supervisors have authority, as defined in Section 2(11) of
the Act, to hire or effectively recommend persons for hire.
C. Suspension and Discharge
The record is devoid of any evidence that the unit and
shift supervisors have the authority to discharge employees.
With regard to suspensions, Odom testified that Supervisors
have the authority to send employees home if they observed an
employee engaged in improper physical contact or sleeping on
the job. In that case, according to Odom, the Supervisor would
send the employee home pending investigation. However, in
response to the Hearing Officer’s request for a specific ex-
ample of this type of incident within the past 2 years,
Odom had nothing to offer. Hooper testified that he had never
sent an employee home. As stated, supra, conclusionary
statements without specific examples are insufficient to
establish evidence of Supervisory status. Therefore, with
regard to its assertion that Supervisors have the authority to
suspend and discharge employees within the meaning of
Section 2(11) of the Act, the Employer has failed to meet its
burden of proof.
D. Discipline
In ITT Lighting Fixtures, the Board stated that to support
a claim that LPNs had the authority effectively to recommend
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD92
discipline, the Employer must prove that the putative supervi-
sors: (a) submit actual recommendations, and not merely an-
ecdotal reports, (b) their recommendations are followed on a
regular basis, (c) the triggering disciplinary incidents are not
independently investigated by superiors, and (d) the recom-
mendations result from the putative supervisors’ own inde-
pendent judgment. ITT Lighting Fixtures, 265 NLRB 1480,
1481 (1982), enf. denied on other grounds. 712 F.2d 40
(2nd Cir. 1983), cert. denied 466 U.S. 978 (1984). Addi-
tionally, the Board has consistently refused to find supervi-
sory status when the alleged supervisor’s role in discipline is
found to be merely reportorial. Hillhaven Rehabilitation Cen-
ter, 325 NLRB 202, 203 (1997); Ten Broeck Commons, 320
NLRB 806, 813 (1996); Northwest Nursing Home, 313
NLRB 491, 497–498 (1993); The Ohio Masonic Home, 295
NLRB 390, 394 (1989).
In Ten Broeck Commons, the Board found that the LPNs’
mere involvement in discipline did not render them supervi-
sors within the meaning of the Act. Ten Broeck Commons at
812. In support of its conclusions, the Board noted that the
role of the LPNs was merely to report incidents of unaccepta-
ble work performance or behavior and they made no rec-
ommendations with respect to discipline. Id. The Board stat-
ed that because written reports and warnings issued by the
putative supervisors did not, by themselves, affect job tenure
or status, they were not supervisors. Id.
The facts in the instant inquiry are similar to Ten Broeck
Commons. Here, as in Ten Broeck Commons, because the
putative supervisors merely report incidents of unacceptable
work performance and do not make recommendations with
respect to discipline, their written reports do not, by them-
selves, affect job tenure or status.
The Employer introduced two different forms as evi-
dence that Supervisors discipline employees. One is a Disci-
plinary Action Form and the other is a Staff Supervision form.
Hooper and Odom both testified that the Supervisors’ role
in discipline is to document a particular situation in writing.
Both testified that the Supervisors do not make a written rec-
ommendation as to the form of discipline and do not check the
boxes on the Disciplinary Action Form indicating the level of
discipline the employee will receive. In fact, the Employer’s
Disciplinary Action Form has a section heading entitled
“Witness.” In this section, the Supervisors document the
details of the incident they observed, then the form is for-
warded it to the “Disciplinary Committee”, a three person
committee comprised of one Human Resources employee, the
assistant to the Director, and Odom, the Supervisor of Opera-
tions. The DisciplinaryCommittee does not make a determina-
tion as to the level of discipline, nor do they make a written
recommendation in this regard. Rather, they forward the docu-
ment to the corporate office where the final disciplinary deci-
sion is made and documented before being sent back to the
facility for implementation. According to the evidence, the
Supervisors’ role with regard to the Disciplinary Action Forms
is to document what is witnessed, not to recommend or to im-
pose discipline.
With regard to the Staff Supervision forms, Odom stated
that the forms were prepared by Supervisors to document coun-
selor performance and they could be used for discipline. How-
ever, Odom also clearly acknowledged that the Staff Supervi-
sion forms were not disciplinary. He further acknowledged
that these forms were intended as tools for training and
documenting certain events which transpired on the units.
Finally, Odom acknowledged that, for any discipline to occur
the matter would first have to be reviewed by the disciplinary
committee and sent to the corporate office for a final deci-
sion.
The Employer, in its brief, contends that the Supervisors’
recommendations regarding discipline are followed 85 to 90
percent of the time. Odom testified that Supervisors make
verbal recommendations and further asserted that these rec-
ommendations have been followed 85 to 90 percent of the
time. However, he provided no specific examples of Su-
pervisors making verbal recommendations which were fol-
lowed. Nor did he provide evidence of any specific process
whereby a Supervisor’s disciplinary recommendations were
followed. With regard to written recommendations, Odom
clearly and specifically stated that he has instructed Supervi-
sors not to check the boxes on disciplinary forms which indi-
cate the level of discipline, that the Disciplinary Committee
does not make a written recommendation as to the level of
discipline, and that the actual disciplinary decision is made
at the corporate office and sent back to the facility for im-
plementation.
In ITT Lighting Fixtures, the Board required evidence that
the putative supervisors (a) submitted actual recommenda-
tions, and not merely anecdotal reports, (b) that their recom-
mendations were followed on a regular basis, (c) that the
triggering disciplinary incidents were not independently
investigated by superiors, and (d) that the recommendations
resulted from the putative supervisors’ own independent
judgment. These four elements are conjunctive and must all
be satisfied to support a finding that the employees in ques-
tion possess the authority to issue discipline as defined in
Section 2(11) of the Act. In the instant matter, the evi-
dence is clear that the unit and shift supervisors do not sub-
mit actual written recommendations. Thus, the evidence with
regard to written recommendations fails to meet the first re-
quirement. Furthermore, there is no evidence that verbal rec-
ommendations, if submitted, are actually followed on a regular
basis. Thus, the analysis need not proceed any further under
ITT Lighting Fixtures, as the first requirement has not been
met with regard to written disciplinary recommendations and
the second requirement has not been met with regard to
verbal recommendations.
Additionally, it is clear from the record that the Supervi-
sors’ role in discipline in the instant matter is reportorial.
The Supervisors merely provide information as witnesses, report
the facts, and do not submit disciplinary recommendations.
The Board will not find supervisory status based on these
facts. Accordingly, I find that the Supervisors in the instant
matter do not discipline or effectively recommend discipline
within the meaning of Section 2(11) of the Act.
COMMUNITY EDUCATION CENTERS, INC. 93
E. Adjust Grievances
Although the authority to adjust grievances can evidence su-
pervisory status, the resolution of minor employee complaints
regarding workload, lunch and break schedule conflicts, or
personality conflicts have not been found to be sufficient to
establish 2(11) supervisory status. Regal Health and Rehab
Center, Inc., 354 NLRB 466 (2010) (overruled on other
grounds); Beverly Enterprises, 304 NLRB 862, 865 (1991);
Ohio Masonic Home, 295 NLRB 390 (1989).
In the instant matter, the Counselors are represented by Dis-
trict 11991 for the purposes of collective-bargaining. The par-
ties’ collective-bargaining agreement provides that an em-
ployee’s written grievance is to be submitted to their supervi-
sor within 72 hours of the incident and that the supervisor is
required to provide a response within 5 working days.
The Employer contends that Supervisors possess the authori-
ty to adjust Counselors’ contractual grievances. For the fol-
lowing reasons I find this argument unpersuasive. Employer
witness Odom acknowledged that Supervisors lack the au-
thority to redress a grievance involving a suspension and
Odom could not provide any examples of a Supervisor exer-
cising independent judgment in adjusting any employee griev-
ance. Instead, when pressed for an example of the type of
grievance a Supervisor could adjust on his own authority,
Odom provided a general example where the Supervisor
would merely ensure that a tardy employee fill out the
proper paperwork. This authority can only be characterized
as routine and clerical and not requiring the use of inde-
pendent judgment. As previously noted, the exercise of
authority that is merely routine or clerical clearly does not
suffice to show supervisory authority as defined by Section
2(11) of the Act. Kentucky River Community Care, supra at
713.
F. Assignmentof Work
The Board in Oakwood Healthcare, Inc. defined “assign-
ing work” as the “the act of designating an employee to a
place (such as a location, department or wing), appointing an
employee to a time (such as a shift or overtime period), or
giving significant overall duties, i.e., tasks, to an employee.”
!d. at 689. To “assign,” for purposes of Section 2(11), “re-
fers to the [putative supervisor’s] designation of significant
overall duties to an employee, not to the [putative supervi-
sor’s] ad hoc instruction that the employee perform a dis-
crete task.” Id. The Board further clarified that “the mere
existence of company policies does not eliminate independent
judgment from decision-making if the policies allow for dis-
cretionary choices,” but that judgment “is not independent if it
is dictated or controlled by detailed instructions,” such as
those set forth in company policy. Oakwood Healthcare, supra
at 697–698.
The Board has also held that calling in employees, without
the authority to compel an employee to come to work and,
the switching of tasks, does not confer supervisory status.
Golden Crest Healthcare Center, supra at 729; Croft Metals,
Inc., 348 NLRB 717, 721 (2006). For example, in Regal
Health & Rehab Ctr., Inc., the Board found that the overall
evidence did not reflect that LPNs used independent judgment
indicative of a Section 2(11) supervisor where, in determining
when additional CNAs were needed or in selecting the CNAs
to be called in for additional work, the LPNs consulted a
list containing the names and telephone numbers of current
CNAs and there was no testimony which indicated that LPNs
evaluated the skill level of CNAs in determining who they
would call. Regal Health & Rehab Ctr., Inc., 354 NLRB 466,
471 (2009).
In Oakwood Healthcare, Inc., the Board found that the em-
ployer failed to establish that rotating charge nurses exercised
supervisory authority for a substantial part of their worktime
where the patient rooms were assigned to CNAs in a routine and
established manner. Oakwood Healthcare, Inc., 348 NLRB
686 (2006). The Board has consistently found these types
of decisions do not establish the use of independent judgment.
Oakwood Healthcare Inc., supra at 694. Regal Health & Rehab
Ctr., Inc., 354 NLRB 466, 472 (2009).
In its Oakwood decision, the Board sought to clarify its in-
terpretation of the terms “independent” as well as the terms
“assign” and “responsibly direct.” In addition to defining
critical terms, the Board concluded that assignment and
responsible direction must have “a material effect on the
employee’s terms and conditions of employment” in order to
confer supervisory status. Oakwood Healthcare, Inc. at 695.
Assignment or responsible direction will produce a find-
ing of supervisory status only if the exercise of independent
judgment is involved. Independent judgment will be found
where the alleged supervisor ( 1 ) acts free from the control
of others, ( 2) is required to form an opinion by discerning
and comparing data, and ( 3 ) makes a decision not dictated by
circumstances or company policy. Id. at 693. Independent
judgment requires that the decision “rise above the merely
routine or clerical.” Id. For example, the Oakwood Board
applied these criteria and found that “if the registered nurse
weighs the individualized condition and needs of a patient
against the skills or special training of available nursing per-
sonnel, the nurse’s assignment involves the exercise of inde-
pendent judgment.” Id. at 693.
The Employer herein contends that although Odom per-
sonally develops the schedule with regard to which Counse-
lors are assigned to each unit, the specific post assignments
are made by the Supervisors who also assign specific tasks to
Counselors, prioritize their work and have the authority to send
Counselors home and call in additional manpower, when neces-
sary.
The record establishes however, that the specific tasks the
Counselors engage in as part of their daily work are carried out
pursuant to company policy and according to prescribed times
and schedules. No definitive evidence was presented regarding
whether Supervisors had discretion over the time when any
particular task was scheduled or if Supervisors evaluated the
skill set of the individual Counselors in light of specific tasks or
the Employer’s needs. Rather, the record establishes that all
Counselors have the same skill sets and educational back-
grounds and that their responsibilities are identical on all shifts
regardless of their particular pod assignments. The instant facts
do not support a conclusion that the Supervisors exercise inde-
pendent judgment in the Counselors’ assignments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD94
Turning to the issue of whether the Supervisors have statu-
tory authority to adjust manpower needs, the Employer again
failed to produce sufficient evidence to support a finding of
statutory supervisory authority. Odom testified that the Super-
visors possess the authority to allow a Counselor to leave
early, if requested. However, he provided no specific exam-
ples in support of this statement.
The required number of Counselors and Supervisors for
each post and the specific posts for the pods on each shift
are predetermined by Odom. To find coverage when a
Counselor calls out sick, the Supervisors follow a procedure
whereby they would ask employees from the previous shift
to stay while utilizing one of two rotating overtime lists, a
mandatory and a voluntary list. The Supervisors do not
have the discretion to deviate from those lists. The instant
matter is similar to Regal Health & Rehab Ctr., Inc, where
the Board ruled on similar facts that the use of call-in lists
precluded finding the exercise of independent judgment.
Regal Health & Rehab Ctr., Inc., supra at 471.
G. Responsibly Direct
For direction to be responsible, the person directing must
have oversight of another’s work and be accountable for
the other’s performance. To establish accountability, it must
be shown that the putative supervisor is (1) empowered to
take corrective action, and is (2) at risk of adverse conse-
quences [or accountable for] others’ deficiencies. Oakwood
Healthcare, supra at 691–692, 695.
The Employer has failed to establish that the Supervisors
direct responsibly. Missing here is evidence that the Su-
pervisors are empowered to take or even to recommend
corrective action. While the Employer asserts that Supervi-
sors perform annual written evaluations of Counselors, the
Supervisors do not make recommendations for promotions as
part of the evaluation process. The Employer provided no
evidence that a Counselor can suffer a loss of employment as
the result of a poor evaluation. Odom further stated that
the evaluations are simply the Supervisors observations of the
employee. This statement suggests that the Supervisors do
not draw conclusions or make recommendations about the
job status of the individual they are evaluating and, therefore,
these evaluations cannot be construed as evidence of responsi-
ble direction. Hooper’s testimony supports this conclusion. He
confirmed that part of his job responsibilities was to fill out
annual appraisals for Counselors but, he also stated that he
never recommended anyone for promotion as part of that pro-
cess. Also missing from the record here is evidence that Su-
pervisors are empowered to discipline or effectively rec-
ommend the discipline of Counselors. As stated earlier, Su-
pervisors document a particular incident as a witness, but do
not make written recommendations for discipline and have
been specifically instructed by management not to check boxes
on disciplinary forms which indicate the level of discipline an
employee will receive. Absent evidence that the Supervisors
are empowered to take corrective action, I cannot find that they
responsibly direct the Counselors.
In this regard, the “authority simply to evaluate employees
without more is insufficient to find supervisory status.” Passa-
vant Health Center, 284 NLRB 887, 891 (1987) (nurses
merely performing a reportorial function by documenting inci-
dents and issuing written warnings which did not contain any
recommendations for discipline lacked discretion to determine
what corrective action should be taken). The preparation of
written warnings and incident reports does not evidence the
exercise of statutory supervisory authority. See Vencor Hospi-
tal-Los Angeles, 328 NLRB 1136 (1999) (ability to issue oral
warnings in itself does not demonstrate supervisory authori-
ty); VIP Health Services v. NLRB, 164 F.3d 644, 648 (D.C.
Cir. 1999) (mere reporting is insufficient to establish that nurs-
es effectively recommend discharge or discipline); Lynwood
Health Care Center, Minnesota, v. NLRB, 148 F.3d 1042,
1046 (8th Cir. 1998) (mere authority to effectively recommend
warnings that “have no tangible effect on [an employee’s] job
status . . . is not sufficient for supervisory status”). The Em-
ployer also provided Unit Supervisor and Shift Supervisor
job descriptions to support a showing that the Supervisors’
functions include supervision of unit counselor and operations
counselors. I reject the Employer’s reliance on these doc-
uments as evidence of supervisory indicia. The Board has
long cautioned that evidence of actual authority trumps mere
paper authority. Avante at Wilson, 348 NLRB 1056. 1057
(2006); Golden Crest Healthcare Ctr., supra at 731.
The Employer, in its brief, argues that the Supervisors re-
sponsibly direct Counselors because they have been disciplined
for failing to improperly oversee the Counselors performance of
their duties. While the Employer has provided some evidence
in support of this proposition, the instant inquiry need not
proceed to a consideration of this issue. Nothing in the fore-
going analysis supports a finding that the unit supervisors or
shift supervisors exercise authority as defined by Section 2(11)
of the Act and the relevant case law. Thus, whether, and the
extent to which, the Employer holds Supervisors accountable
for duties which, under the law, are not supervisory is irrel-
evant for the purposes of this inquiry. This is consistent with
the principles followed in Golden Crest Healthcare Ctr.,
where the Board has stated that where there is no showing
of direction, one need not reach the issue of accountability,
and vice versa. Golden Crest Healthcare Ctr., 348 NLRB 727,
730 (2006).
H. Secondary Indicia
While secondary indicia can be a factor in establishing stat-
utory supervisory status, it is well established that where, as
here, putative supervisors are not shown to possess any of
the primary supervisory indicia, secondary indicia alone
are insufficient to establish supervisory status. Golden Crest
Healthcare, supra at 730 fn. 10; Ken-Crest Services, 335
NLRB 777, 779 (2001).
The Employer cites American River Transportation Co.,
347 NLRB 925 (2006), for the proposition that higher pay
and better benefits are secondary indicia of statutory superviso-
ry status. In American River Transportation Co., the Board
overruled the judge’s determination that the employees in
question, the employer’s towboat pilots, were not statutory
supervisors. American River Transportation Co., at 927.
The Board found that the pilots had the authority to assign
COMMUNITY EDUCATION CENTERS, INC. 95
and order crew members to particular tasks, used independent
judgment to determine which tasks would be undertaken un-
der different circumstances, and had authority over the crews
during emergencies. Id. In addition to these primary factors,
the Board found that the pilots also possessed certain second-
ary indicia indicative of supervisory status, such as better bene-
fits, higher pay and better sleeping quarters. Id.
Unlike the pilots in American River Transportation Co.,
however, the Supervisors here have not been shown to have
the authority to assign employees to particular tasks, to use
independent judgment to determine which tasks should be
completed in various circumstances and to exercise authority
over the employees during emergencies. Absent evidence that
the Supervisors possess the primary indicia of supervisory
status, the secondary indicia which the Employer advances
are insufficient to establish supervisory status. See Golden
Crest Healthcare, supra at 730.
The Employer also argues that the Supervisors here must be
statutory supervisors or employees would have no supervi-
sion during certain hours/shifts of operation. However, the
Board in Riverside Health Care Center rejected an employer’s
similar argument that its facility would be without statutory
supervisors 76 percent of the time unless the nurses in
question were deemed supervisors. Riverside Health Care
Center, 304 NLRB 861 (1991). The Board’s decision in this
regard was based on the fact that the nurses in question had
procedural and instructional handbooks at their disposal during
the periods of time in question.
Here, the Supervisors have a great deal more to rely on than
handbooks and instructions. They have three managers whom
they are required to call should a serious situation arise. The
Supervisors here exercise even less independent judgment
than the nurses in Riverside Health Care Center because
they do not have the task of reading and applying instruc-
tions and procedures: they merely call in to their superiors and
receive direction. Moreover, the Board has long held that
the mere fact that employees are at certain times the highest
ranking employee on site does not, by itself, establish supervi-
sory authority. See McCullough Environmental Services, 306
NLRB 565, 566 (1992). Thus, the Employer’s argument that
an indicia of 2(11) status is established because its Supervi-
sors may be the highest ranking employees physically pre-
sent at Logan Hall during certain times of day is unpersua-
sive.
Citing Burns Security, 278 NLRB 565 (1986), the Employer
makes an additional secondary indicia argument that a finding
that the Supervisors are not Section 2(11) supervisors would
create an irrational ratio of staff-to-supervisory employees.
However, in Burns Security, as in American River Transporta-
tion Co., the Board’s consideration of secondary indicia pro-
ceeded only after the evidence showed that the employees
first possessed statutory authority under the primary indicia.
Thus, the cases upon which the Employer relies do not sup-
port its secondary indicia arguments.
The Sergeants whose status was at issue in Burns Security
participated on the board for promotions, made recommenda-
tions for commendations, had the authority to remove
guards from their posts, consulted with their superiors on
promotions and were involved with rating employee perfor-
mance. The Board first found on these facts that the Ser-
geants had significant roles in evaluating and disciplining
guards and then proceeded to address the issue of ratio.
Unlike the Sergeants in Burns Security, however, the Super-
visors here do not meaningfully participate in employee
evaluations and discipline and do not satisfy any other prima-
ry requirements. Thus, the Employer here, unlike the em-
ployer in Burns Security, cannot rely upon secondary indi-
cia arguments. The law is clear that ratio, as with all sec-
ondary indicia, cannot by itself provide a basis for a su-
pervisory finding. Northcrest Nursing Home, 313 NLRB 491,
499 (1993).
Conclusion
Based on the above and the record as a whole, I find
that the Employer has failed to meet its burden of estab-
lishing that its unit supervisors and shift supervisors possess
the indicia sufficient to meet the definition of statutory su-
pervisors under Section 2(11) of the Act. Therefore, I find
them to be employees as defined in the Act and order their
inclusion in the petitioned-for bargaining unit.