1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 1250

_____________ MARS HOME FOR YOUTH, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent THE PENNSYLVANIA SOCIAL SERVICES UNION, LOCAL 668 OF THE SERVICE EMPLOYEES INTERNATIONAL UNION, AFL

- CIO, Intervenor

_____________ No. 11

- 1590

_____________ NATIONAL LABOR RELATIONS BOARD, Petitioner THE PENNSYLVANIA SOCIAL SERVICES UNION, LOCAL 668 OF THE SERVICE EMPLOYEES INTERNATIONAL UNION, AFL

- CIO, Intervenor v. MARS HOME FOR YOUTH,

Respondent

_____________2 ON PETITION FOR REVIEW AND CROSS

- APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Submitted Under Third Circuit L.A.R. 34.1(a),

October 5 , 2011 BEFORE: McKEE, Chief Judge , FUENTES, GREENE BRG , Circuit Judges

(Opinion Filed: October 26, 2011 )

_____________ OPINION OF THE COURT

_____________ FUENTES, Circuit Judge

. Mars Home for Youth filed a Petition for Review of a final decision and order of the National Labor Relations Board ( the “Board”)

. The Board filed a Cross Application for Enforcement. Mars Home seeks review of the Board’s determination that five Assistant Residential Program Mangers (“ assistant m anagers ”) were not “supervisors”
under Section 2 ( 11 ) of the National Labor Relations A ct (the “Act”) , and thus were able to participate in a unionizing vote. We reject Mar Home’s petition and grant the Board’s

cross - application for enforcement

. I. Because we write for the parties, we discuss only the facts relevant to our
conclusion. Mars Home for Youth is a facility that provides residential and other

se rvices to at

- risk juvenile s. Each of the six residential unit s is staffed by a residential
program m anager (“ program m anagers ”), an a ssist ant residential p rogram m anager, and3

r esident a ss istants (“ a ssistants ”). The assistants report to the assistant managers who, in turn, report to the program manager . T he Pennsylvania Social Services Union Local 669 a/w Service Employees International U nion a/w CTW (“Union”) filed a p etition before the National Labor Relations Board seeking to represent the assistants and assistant managers as a collective bargaining unit. Mars Home opposed the inclusion of the assistant managers on the basis that they were supervisors. After a hearing, the Regional D irector of the NLRB issued a decision finding that the five assistant managers were not supervisors and could be included in the collective bargaining unit. M ars Home timely sought review of the decision , which was denied

. U nion elections were held and the group voted 34

- 31 in favor of allowing the Union to represent them collectively. The NLRB certified the Union as the exclusive collective

- bargaining re presentative of the employees . M ars Home refused to bargain, contending tha t the certification was invalid. The Union filed an unfair labor practice charge and the NLRB issued a complaint against M ars Home alleging that its refusal to bargain violated Section s 8(a)(5) and (1) of the National Labor Relations Act. The Board found that Mars Home violat ed the Act and issued a cease and desist order. Mars Home timely petitioned this Court and the Board

cross - petitioned for an enforcement of its order. 1
II.

1 W e exercise jurisdiction over the appeal of the Board’s decision pursuant to Sections 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. §§ 160(e), (f).4

Our review of the National Labor Relations Board ’s decisions is limited. W e “accept the Board’s factual determinations and reasonable inferences derived from factual determinations if they are supported by substantial evidence.” Citizens Publishing and Printing Co. v. N

LRB , 263 F.3d 224, 232 (3d Cir. 2001). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. We uphold the Board’s conclusions of fact “ even if we would have made a contrary determination had the matter been before us de novo .” Id. The Board’s legal determinations are subject to plenary review, but “with due deference to the Board’s expertise in labor matters.” NLRB v. St. George Warehouse,
Inc. , 64 5 F.3d 666, 674 (3d Cir. 2011). We uphold the Board’s interpretations of the Ac t if they are reasonable. Citizens Publishing and Printing Co. , 263 F.3d at 233. We have cautioned that “determinations respecting supervisor status are particularly suited to the Board’s expertise.” NLRB v. W.C. McQuaide, Inc. , 552 F.2d 519, 532 (3d Ci r. 1977).
III. To be entitled to the Act’s protections and includable in a bargaining unit, one must be an “employee ” as defined by the Act See 29 U.S.C. §§ 2(3), 152(3) ; see also NLRB v. Kentucky River Cmty

. Care, Inc. , 532 U.S. 706, 711 (2001). The de finition of “employee” does not include “supervisors

. ” See id. at § 152(3). A supervisor is: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline o ther employees, 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 authority is not of a merely routine or clerical nature, but requires the use of independent judgment.5

29 U.S.C. § 152(11). Whether someone is a supervisor is a question of fact, and thus will be upheld if it supported by substantial evidence. See W.C. McQuiade , Inc. , 552 F.2d at 532

- 33; NLRB v. Quinnipiac College , 256 F.3d 68, 75 (2d Cir. 2001); Entergy Gulf States., Inc. v. NLRB , 25 3 F.3d 203, 208 (5th Cir. 2001). T here is a three

- part test for determining supervisory status. Employees are supervisors if: “( 1) they hold the authority to engage in any 1 of the 12 listed superviso ry 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. ” Kentucky River , 532 U.S. at 713 (internal quo tation marks omitted). A supervisor exercises independent judgment when he acts or recommends action “free of the control of others and form[s] an opinion or evaluation by discerning and comparing data.” In re Oakwood Healthcare, Inc. , 348 N.L.R.B. 686, 692

- 93 (2006)

. As the party asserting it,
M ars Home bears the burden of establishing supervisory status. Id. at 711

- 12.
M ars Home alleges that the assistant managers were supervisors under the Act because they responsibly directed the work of employee s, assigned employees and had the authority to discipline them. We disagree.
A.
M ars Home contends that the Board erred when it found that it had not met its burden of producing sufficient evidence to establish that the assistant managers “responsibly di rect” the assistant’s work. The Board, held that for direction to be responsible, “ the person directing and performing the oversight of the employee must be accountable for the performance of the6

task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the emplo yee are not performed properly.” 2 In re Oakwood Healthcare, Inc. , 348 N.L.R.B. 686, 691

- 9 2 (2006). T he putative supervisor
must be at risk of suffering adverse consequences for the actual performance of others , not his own performance in overseeing others

. Id. at 695. The record before the Board contained numerous examples of where assistant
managers were not disciplined for the failure of resident assistants to follow their dir ections. Rather, the record shows that the assistant managers were disciplined for their own failings as managers . Mars Home argument that it implemented an evaluation system that encompassed the assistant manager’s responsible direction is similarly un availing

. T he change has yet to be implemented. Further, t he evaluation form, which will form the basis of these pay raises, does not evaluate the assistant managers on their responsible direction. The only relevant category is “interpersonal relationsh ips,” but Mars Home point s to no evidence in the record that indicates how the program managers use this category, o r any other, in evaluating the assistant managers’ directing others

. Overall, the Board’s determination that M ars Home failed to met its bur den of demonstrating that the assistant managers are supervisors because they responsibly direct others is supported by substantial eviden ce and should not be disturbed

. B.

2 The term “responsibly to direct” is ambiguous. NLRB v. Health Care & Retirement Corp. , 5 11 U.S. 571, 579 (1994). Thus the Board’s interpretation is entitled to deference so long as it is reasonable. See Fei Mei Cheng v. Attorney General , 623 F.3d 175, 185

- 86 (3d Cir. 2010). We find that the Board’s interpretation to be reasonable and thus entitled to deference. See e.g. , Loparex LLC v. NLRB , 59 1 F.3d 540, 550 (7th Cir. 2009).7

M ars Home further alleges that the assistant managers are supervisors under Section 2 (11) because they possess the authority to assign assistants to various tasks. The Board has construed the term “assign” to “refer to the act of designating an employee to a place . . ., appointing an employee to a time, . . . or giving significant

ove rall duties, i.e., tasks, to an employee. ” 3 Oakwood Health , 348 NLRB at 689. A supervisor designates “significant overall duties to an employee” not simply “instructions that an employee perform a discrete task.” Id. A supervisor must have the power to require that these duties be undertaken. Golden Crest , 348 NLRB at 729. As to scheduling, the re is sufficient evidence in the record that only some assistant
managers had the authori ty to recommend an assistant ’s schedule, which was later reviewed and ap proved by the program manager , and they had no authority to require the
assistant to follow certain schedules

. See Golden Crest , 348 NLRB at 729 (finding no authority to assign when only another held the power to mandate). Further, the schedules

are cons trained by significant Government and Mars Home regulations, which cuts against finding that the assistant managers acted with independent judgment. Part of the assistant manager’s duties is to make sure that the resident halls are adequately staffed at all times. If assistants are absent, an assistant manager may either let the unit run short

- staffed, assuming it still has the r equired staff

- to

- resident ratio , pull

a n assistant from another unit, or find a volunteer. When seeking volunteers, it is Mar s Home’s informal policy that the assistant manager call the most junior assistant first and

3 Similarly to responsibly to direct, the phrase “assign” is ambiguous and thus the Board’s interpretation is upheld if it is reasonable. We find that it is and thus is entitled to deference.8

that no employee may work for more than 16 consecutive hours. A program manager must approve any overtime. Also, t he re is sufficient evidence in the record that demonstrates the assistant
managers do not have the authority to assign transportation duty to the assistants

. In fact,

one assistant manager testified that when a resident needs to be transported he simply asks for volunteers and bases any staffing decis ions on the gender of the patient. Finally, the Board’s interpretation that daily work schedules, such as assigning an assistant to monitor a single resident or to respond to a crisis constituted evidence of direct ion , not assignment, is not unreasonable. The Board has interpreted assignment to mean the allocation of significant overall responsibilities to an employee, not ad hoc duties. Oakwood Health , 348 NLRB at 689. Here, it is plain that the assistant managers

are giving only ad hoc duties and is n ot evidence of the authority to assign under the Act. Based on the above, the Board’s conclusion that the assistant managers lack the authority to assign under § 2(11) or did not use independent judgment is su pported by substantial evidence and will not b e overturned.
IV. We have considered Mars Home’s remaining claims and find them without
merit. Mars Home for Youth’s Petition for R eview is DENIED. The Na tional Labor Relations Board’s C ross - A pplication for E nforcement of its O rder is GRANTED.