The Arc of South Norfolk

National Labor Relations Board - Board Decisions

Jul 31, 2019

368 NLRB No. 32 (N.L.R.B. 2019)

368 NLRB No. 32
NOTICE: This opinion is subject to formal revision before publication in the
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The Arc of South Norfolk and American Federation of
State, County & Municipal Employees, Council
93. Case 01–RC–213174
July 31, 2019
DECISION ON REVIEW AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
The issue presented in this case is whether the Acting
Regional Director properly found that the Employer’s pro-
gram coordinators are not supervisors for the purposes of
the Act.
On February 9, 2018, the Acting Regional Director is-
sued a Decision and Direction of Election in which he
found that the program coordinators are not supervisors
and therefore were properly included in the petitioned-for
unit. An election was held on February 28, 2018, and the
Acting Regional Director issued a Certification of Repre-
sentative on March 23, 2018.1 Thereafter, in accordance
with Section 102.67 of the Board’s Rules and Regulations,
the Employer filed a timely request for review of the De-
cision and Direction of Election.2 The Petitioner filed an
opposition to the request.
On August 15, 2018, the Board granted the Employer’s
request for review in part and invited briefing on whether
the Employer’s program coordinators possess the author-
ity to assign or responsibly direct employees within the
meaning of Section 2(11) of the Act.3 Thereafter, the Em-
ployer and Petitioner filed briefs on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this pro-
ceeding, including the briefs on review, we find, for the
reasons stated below, that the program coordinators pos-
sess the authority to assign, or effectively recommend as-
signment of, significant overall duties using independent
judgment insofar as they assign clients to case managers.

1 The Acting Regional Director also overruled objections filed by the
Employer.
2 The Employer did not seek review of the Acting Regional Director’s
overruling of its objections or issuance of the Certification of Repre-
sentative.
3 The request for review was denied in all other respects.
4 Accordingly, we find it unnecessary to address whether the program
coordinators possess the authority to assign in any other respect, as well
as whether they responsibly direct employees.
5 All the Employer’s clients have a Day Habilitation Service Plan, or
DHSP, prepared by an interdisciplinary team of the Employer’s staff and
subject to approval by Knox or DeMerritt. The DHSP includes “concrete
We therefore reverse the Acting Regional Director and
find that the program coordinators are supervisors within
the meaning of Section 2(11).4
I. FACTS
The Employer operates programs for individuals with
developmental and intellectual disabilities, including the
day habilitation program at issue here, out of a facility in
Westwood, Massachusetts. The American Federation of
State, County, and Municipal Employees, Council 93 (the
Petitioner) is seeking to represent a unit of all relief staff,
assistant case managers, case managers, licensed practical
nurses, physical therapy assistants, and program coordina-
tors employed by the Employer.
Director Lisa Knox oversees the overall administration
of the day habilitation program. Along with Senior Asso-
ciate Director Diane DeMerritt, Knox supervises a re-
source manager, a health care supervisor, and the 10 Pro-
gram Coordinators at issue in this case. Within the day
habilitation program, clients with physical and mental dis-
abilities come to the Westwood facility between the hours
of 9 a.m. and 3 p.m. on multiple days during the week.
The program is designed to help clients progress towards
certain “goals,” or levels of functioning. To accomplish
this, the clients are divided into different “group rooms”
of 10 to 14 clients who have similar levels of functioning
and similar support needs. Each “group room” is staffed
by one program coordinator, who oversees the room every
day; a few case managers, who are assigned a particular
number of individual clients (their caseload) by the pro-
gram coordinator; and one or two assistant case managers,
who have no caseload. Depending on the size of the group
room, case managers usually have a caseload of four to six
clients. The program coordinators and case managers
work with the clients to help them reach the goals speci-
fied in their service plans,5 document the clients’ progress
toward those goals using objective criteria, and assist cli-
ents with their personal care throughout the day, such as
toileting and feeding. Assistant case managers generally
assist all clients in a group room with personal care mat-
ters and do not take part in documentation.
measurable goals,” such as saying “good morning” four times a day or
spending a certain amount of time in a social community. DHSPs are
distinct from Individual Service Plans, or ISPs, which are state-imposed
plans that also outline goals and guidelines for a given participant. ISPs
are tied specifically to individuals with certain types of funding from the
state. Unlike DHSPs, ISPs are not generated by the Employer. Thus,
only some of the employer’s clients have an ISP while all have a DHSP.
We do not believe these service plans limit the program coordinators’
exercise of independent judgment in making caseload assignments be-
cause the service plans specify habilitation goals but do not circumscribe
authority with respect to caseload assignments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Program coordinators are responsible for choosing
which clients are assigned to each case manager. The pro-
gram coordinator for each group room tells Knox and
DeMerritt which clients should be assigned to each case
manager in the group room, and either Knox or DeMerritt
then fills out and signs the “form letters,” which are re-
quired by state regulations, officially “assigning” those
clients to the case manager. Knox and DeMerritt both tes-
tified that their role in assigning clients to case managers
is limited to filling out the form letter, and that they have
never overruled or modified a program coordinator’s case-
load suggestions. The program coordinators who testified
similarly stated that they could not recall any instance in
which their recommendations with respect to caseloads
were not approved. Aside from making these initial case-
load assignments, program coordinators may also reassign
clients from one case manager to another within their
group room without needing to seek approval from Knox
or DeMerritt.
Program coordinators take several factors into account
when making caseload decisions, including determining
whether a case manager has the experience to handle a
particular client and making a judgment about which case
manager might have the best relationship with that client
going forward. Knox described the caseload assignment
process, observing that she and DeMerritt rely on the pro-
gram coordinators to “look at the whole person, to look at
the individual holistically and look at their interest, their
capabilities, how they would respond to a particular staff
person.” DeMerritt identified reasons that a program co-
ordinator might make or modify a caseload assignment:
for example, a program coordinator might transfer a client
from one case manager to another if the client’s family
member had a problem with the assigned case manager, or
if the case manager was having difficulty working with
that client.
The program coordinators themselves offered examples
of specific caseload assignment decisions that corrobo-
rated Knox and DeMerritt’s testimony. Program coordi-
nator Udemagwuna described how he determined the first
client he should assign to a new case manager who had
been placed in his group room. Udemagwuna stated that
he wanted to evaluate the new case manager’s skills and
experience level before making the assignment; more par-
ticularly, he wanted to gauge whether she would be able
to have a productive relationship with a parent or guardian
who might be more demanding than others. Program co-
ordinator Furlong similarly described how she decided to
make caseload assignments when two new clients were re-
assigned to her group room from another room. Furlong
stated that she engaged in a “collaborative” discussion
with the case managers in her group room to determine
who had the “best relationships” with the two clients at
issue before making suggestions to Knox and DeMerritt.
Likewise, program coordinator Wall testified that she
made caseload suggestions based on “who might fit with
whom.” She identified a specific occasion when a case
manager requested to have a client reassigned because of
an unidentified “issue” with that client, and stated that she
“rearranged” that case manager’s caseload in response to
the request.
In addition to their role in assigning caseloads, program
coordinators identify themselves as “supervisors” when
signing off on time-off requests, performance evaluations,
and community outing approval forms; participate in
meetings with management and supervisory training pro-
grams that other group room staff do not attend; and are
paid more than other group room staff.
II. THE ACTING REGIONAL DIRECTOR’S DECISION
In his decision, the Acting Regional Director found that,
even if program coordinators possess the authority to as-
sign clients to case managers, the record is insufficient to
meet the Employer’s burden to prove that the program co-
ordinators exercise independent judgment in doing so.
The Acting Regional Director characterized DeMerritt’s
testimony as “conclusory” because it did not did not pro-
vide specific examples of the factors that program coordi-
nators take into account when assigning caseloads; the
Acting Regional Director did not, however, address or
acknowledge the additional testimony provided by Knox,
Udemagwuna, Furlong, and Wall. The Acting Regional
Director further found that, even if the program coordina-
tors did make assignments on the basis of a particular cli-
ent’s personality and abilities, this would not constitute in-
dependent judgment, because the clients are arranged into
group rooms based on similar levels of functioning, and as
such there is no need to analyze the particular client in re-
lation to the case manager’s skill set once the client is in a
particular group room. Finally, the Acting Regional Di-
rector observed that any “secondary indicia” of supervi-
sory status, such as the higher pay of program coordinators
and the fact that they participate in supervisory training
programs, were insufficient to prove supervisor status
standing alone.
III. ANALYSIS
“[I]ndividuals are statutory supervisors if (1) they hold
the authority to engage in any 1 of the 12 supervisory func-
tions (e.g., ‘assign’ and ‘responsibly to direct’) listed in
Section 2(11); (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.” Oakwood Healthcare, Inc.,
348 NLRB 686, 687 (2006) (internal quotations omitted).
THE ARC OF SOUTH NORFOLK 3
The burden of establishing that a given employee is a su-
pervisor lies with the party asserting supervisor status.
NLRB v. Kentucky River Community Care, 532 U.S. 706,
711–712 (2001). Purely conclusory evidence does not sat-
isfy that burden, and supervisory status is not proven
where the record evidence “is in conflict or otherwise in-
conclusive.” See Phelps Community Medical Center, 295
NLRB 486, 490 (1989); see also Golden Crest Healthcare
Center, 348 NLRB 727, 731 (2006). However, a party
seeking to prove supervisory status need only establish it
by a preponderance of the evidence. Dean & Deluca New
York, Inc., 338 NLRB 1046, 1047 (2003).
For the purposes of Section 2(11), “assign” refers to
“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 sig-
nificant overall duties, i.e., tasks, to an employee.” See
Oakwood Healthcare, supra, at 689. Even where a puta-
tive supervisor does not engage in the actual assignment
of employees, supervisory status may be found where the
putative supervisor engages in “effective recommenda-
tion” with respect to assignment (or any of the other su-
pervisory functions). Id. at 687. A putative supervisor
engages in “effective recommendation” where his or her
recommendations are routinely or usually followed with-
out independent investigation. See, e.g., Veolia Transpor-
tation Services, Inc., 363 NLRB No. 98, slip op. at 7
(2016); Mountaineer Park, Inc., 343 NLRB 1473, 1474–
1475 (2004); Berger Transfer & Storage, 253 NLRB 5, 10
(1980), enfd. 678 F.2d 679 (7th Cir. 1982).
As is the case with all supervisory functions, the puta-
tive supervisor must exercise independent judgment in
making such assignments. Oakwood Healthcare at 692-
693. To exercise independent judgment, “an individual
must at minimum act, or effectively recommend action,
free of the control of others and form an opinion or evalu-
ation by discerning and comparing data.” Id. A judgment
is not independent if “it is dictated or controlled by de-
tailed instructions” or if there is “only one obvious and
self-evident choice.” Id. at 693. Nor is a judgment inde-
pendent if it is made on the basis of well-known employee
skills or solely with respect to whether the employee is
capable of doing the job. See KGW-TV, 329 NLRB 378,
381–382 (1999); GS4 Government Solutions, 363 NLRB
No. 113, slip op. at 3 (2016).
In the healthcare context, the Board has held that assign-
ment encompasses the responsibility to assign employees
to care for particular patients. See Oakwood Healthcare,
supra, at 689. The Board has also commented that, in this
setting, independent judgment is probably involved if a
putative supervisor weighs the “individualized condition
and needs of a patient against the skills or special training
of available nursing personnel,” and has found that puta-
tive supervisors exercised independent judgment by
matching a “nurse’s skill set and level of proficiency at
performing certain tasks . . . [to the] needs of a particular
patient.” Id. at 693, 695.
We find that the Program Coordinators assign, or at
least effectively recommend assignment, within the mean-
ing of Section 2(11). First, assigning clients to Case Man-
agers constitutes assignment of “significant overall du-
ties.” In Oakwood Healthcare, the Board found that
charge nurses engaged in the assignment of significant
overall duties where “[a]t the beginning of each shift, and
as new patients are admitted thereafter, the charge nurses
for each patient care unit (except the emergency room) as-
sign the staff working the unit to the patients that they will
care for over the duration of the shift.” Id. at 695. The
Board observed that “[t]he charge nurses’ assignments de-
termine what will be the required work for an employee
during the shift, thereby having a material effect on the
employee's terms and conditions of employment,” and
therefore constituted “giving significant overall tasks to an
employee.” Id. Similarly, the program coordinators here
assign clients to case managers, and in doing so determine
the required work for each case manager. Moreover, the
Program Coordinators here assign caseloads on a semi-
permanent basis, not just for individual shifts, further il-
lustrating that these types of assignments involve signifi-
cant overall duties.
Furthermore, although Knox and DeMerritt sign the
form letters that document the assignment of a client to a
particular case manager, they testified that they do not
make independent caseload decisions, but rather that they
always accept the program coordinator’s recommendation
to assign a specific client to a particular case manager.
Likewise, none of the program cwho testified identified
any occasion on which their caseload recommendations
were not followed. Thus, even if Knox and DeMerritt’s
documentation of the assignment via the form letter con-
stitutes the formal “assignment” of the caseloads, the pro-
gram coordinators effectively recommend the assign-
ments, which is sufficient to confer supervisory status. Id.
at 689 (“It follows that the decision or effective recom-
mendation to affect one of these—place, time, or overall
tasks—can be a supervisory function.”) Accordingly, we
find that the program coordinators here “assign,” or at
least “effectively . . . recommend” the assignment of, sig-
nificant overall duties within the meaning of Section
2(11).
Second, the evidence establishes that the Program Co-
ordinators also exercise independent judgment in assign-
ing caseloads. Although the clients in each group room
are placed in group rooms with other clients of similar
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
basic needs and functional abilities, and every Case Man-
ager has the basic job proficiencies and skills to perform
their duties with respect to any given client in the group
room, the Program Coordinators do not simply assign new
clients to any Case Manager who is available, or to the
Case Manager with the smallest caseload at the time the
client is placed in the room. Rather, the record demon-
strates that Program Coordinators engage in a more sub-
stantive analysis—the nuanced question of which Case
Manager has the best “fit” or “chemistry” with a client, as
well as which Case Manager will be able to form the best
relationship with that client’s parents or guardians.
These considerations are analogous to the considera-
tions that established the exercise of independent judg-
ment in Oakwood Healthcare. There, the Board found
that the putative supervisors utilized independent judg-
ment in assigning nurses to patients in part because they
would “take other nurses’ individual expertise into ac-
count, such as assigning a nurse who is particularly profi-
cient in administering dialysis to a kidney patient,” and
would “look to whether the available staff has particular
skill or training in dealing with certain kinds of patients,
such as chemotherapy, orthopedic, or pediatric patients.”
348 NLRB at 697. The Board further highlighted testi-
mony that indicated that the putative supervisors would
make determinations based on personal relationships be-
tween patients and clients, such as considering “patients’
gender-based sensitivities,” “the aggressiveness of the pa-
tient and a care giver’s ability to respond to the same,”
“personalities,” and, as one putative supervisor testified,
“reassess[ing] patient care assignments during a shift be-
cause of personality clashes between a patient and a
nurse.” Id. at 696–697.
The relevant testimony makes clear that Program Coor-
dinators make “informed judgments” in assigning case-
loads to Case Managers, considering the individualized
strengths and weaknesses of the Case Managers and the
personalities of the Case Managers, the clients, and the cli-
ents’ parents or guardians. Indeed, the record contains
scant contradictory evidence. Instead, the testimonies of
Knox and DeMerritt, both of whom discussed the types of
factors that Program Coordinators take into account when
assigning caseloads, were corroborated by the testimony
of Program Coordinators Udemagwuna, Furlong, and
Wall, who all testified to concrete and identifiable in-
stances in which they assigned or reassigned clients to
Case Managers based on the expertise and experience of
the Case Manager (Udemagwuna) or the “relationships”
or “chemistry” between the Case Manager and the client
(Furlong and Wall). We therefore find that the Program
Coordinators supervisory status is established.
Secondary indicia of the Program Coordinators’ super-
visory status further buttress this conclusion. Such indicia
may be relevant where, as here, at least one of the primary
indicia set forth in Section 2(11) is present. See, e.g.,
Sheraton Universal Hotel, 350 NLRB 1114, 1118 (2007).
In this regard, the Program Coordinators are paid a higher
salary than the other individuals in their group rooms. See
American River Transportation Co., 347 NLRB 925, 927
(2006). They also attend training for supervisors. See
McClatchy Newspapers, Inc., 307 NLRB 773, 773 (1992).
And they sign off on forms as “supervisors.” The Em-
ployer accordingly treats and holds out the Program Coor-
dinators to others as supervisors. Sheraton Universal, su-
pra, at 1118. Having found that the Program Coordinators
possess supervisory authority with regard to assignment,
we find that this secondary evidence corroborates our de-
termination of their 2(11) status.
CONCLUSION
For the foregoing reasons, we find that the Employer’s
Program Coordinators possess the authority to assign cli-
ents to Case Managers, as well as secondary indicia, and
therefore are supervisors within the meaning of Section
2(11) of the Act. Accordingly, we remand this case to the
Acting Regional Director for further action consistent
with this Decision.
ORDER
The case is remanded to the Acting Regional Director
for further appropriate action.
Dated, Washington, D.C. July 31, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD