                               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,




                     1
                        Petitioner

  THE PENNSYLVANIA SOCIAL SERVICES UNION,
                LOCAL 668 OF
THE SERVICE EMPLOYEES INTERNATIONAL UNION,
                  AFL-CIO,

                        Intervenor
                            v.

               MARS HOME FOR YOUTH,

                       Respondent

                     _____________


      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, GREENBERG,
                 Circuit Judges

             (Opinion Filed: October 26, 2011)

Ronald J. Andrykovitch, Esq.
Jessi D. Isenhart, Esq.




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Cohen & Grigsby
625 Liberty Avenue
Pittsburgh, PA 15222

      Counsel for Petitioner and Cross-Respondent

Ruth E. Burdick, Esq.
National Labor Relations Board
Appellate and Supreme Court Litigation Branch, Division of
Enforcement
1099 14th Street, N.W.
Washington, DC 20570-0001

Linda Dreeben, Esq.
MacKenzie Fillow, Esq.
National Labor Relations Board
Room 8100
1099 14th Street, N.W.
Washington, DC 20570

Amy H. Ginn, Esq.
Jill A. Griffin, Esq.
National Labor Relations Board
Appellate Court Branch
1099 14th Street, N.W.
Washington, DC 20570-0000

      Counsel for Respondent and Cross-Petitioner

Claudia Davidson, Esq.
500 Law & Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219-0000




                             3
       Counsel for Intervenor-Respondent The Pennslyvania
       Social Services Union, Local 668 of the Service
       Employees International Union, AFL-CIO.
                       _____________

                 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 managers”) were not “supervisors” under
Section 2(11) of the National Labor Relations Act (the
“Act”), and thus were able to participate in a unionizing vote.
We reject Mars Home’s petition and grant the Board’s cross-
application for enforcement.

                               I.

        Mars Home for Youth is a facility that provides
residential and other services to at-risk juveniles. Each of the
six residential units is staffed by a residential program
manager (“program managers”), an assistant residential
program manager, and resident assistants (“assistants”). The
assistants report to the assistant managers who, in turn, report
to the program manager.




                               4
       The Pennsylvania Social Services Union Local 669
a/w Service Employees International Union a/w CTW
(“Union”) filed a petition 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
Director of the NLRB issued a decision finding that the five
assistant managers were not supervisors and could be
included in the collective bargaining unit. Mars Home timely
sought review of the decision, which was denied.

       Union 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 representative of the employees. Mars Home
refused to bargain, contending that the certification was
invalid.

       The Union filed an unfair labor practice charge and the
NLRB issued a complaint against Mars Home alleging that its
refusal to bargain violated Sections 8(a)(1) and (5) of the
National Labor Relations Act. The Board found that Mars
Home violated the Act and issued a cease and desist order.
Mars Home timely petitioned this Court and the Board cross-
petitioned for enforcement of its order.1

                             II.


1
       We 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).




                              5
       Our review of the National Labor Relations Board’s
decisions is limited.     We “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. NLRB,
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., 645 F.3d 666, 671 (3d Cir.
2011). We uphold the Board’s interpretations of the Act 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 Cir. 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 definition 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,




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       or discipline other 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.

29 U.S.C. § 152(11). Whether someone is a supervisor is a
question of fact, and thus will be upheld if it is 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, 253 F.3d 203,
208 (5th Cir. 2001). There 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
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.” Kentucky River, 532 U.S. at 713
(internal quotation 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, Mars Home bears the burden of
establishing supervisory status. Kentucky River, 532 U.S. at
711-12.

       Mars Home alleges that the assistant managers were
supervisors under the Act because they responsibly directed
the work of employees, assigned employees and had the
authority to discipline them. We disagree.




                               7
                               A.

       Mars 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
direct” 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 the task
by the other, such that some adverse consequence may befall
the one providing the oversight if the tasks performed by the
employee are not performed properly.”2 In re Oakwood
Healthcare, Inc., 348 N.L.R.B. 686, 691-92 (2006). The
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 directions.
Rather, the record shows that the assistant managers were
disciplined for their own failings as managers.

2
        The term “responsibly to direct” is ambiguous. NLRB
v. Health Care & Retirement Corp., 511 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.
Att’y 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, 591
F.3d 540, 550 (7th Cir. 2009).




                                8
       Mars Home’s argument that it implemented an
evaluation system that encompassed the assistant manager’s
responsible direction is similarly unavailing. The change has
yet to be implemented. Further, the 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 relationships,” but Mars
Home points to no evidence in the record that indicates how
the program managers use this category, or any other, in
evaluating the assistant managers’ directing others.

       Overall, the Board’s determination that Mars Home
failed to meet its burden of demonstrating that the assistant
managers are supervisors because they responsibly direct
others is supported by substantial evidence and should not be
disturbed.

                               B.

       Mars Home further alleges that the assistant managers
are supervisors under Section 2(11) of the National Labor
Relations Act 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 overall duties,
i.e., tasks, to an employee.”3 Oakwood Health, 348 NLRB at


3
       Similar to “responsibly to direct,” the phrase “assign”
is ambiguous and thus the Board’s interpretation is upheld if




                                9
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, there is sufficient evidence in the
record that only some assistant managers had the authority to
recommend an assistant’s schedule, which was later reviewed
and approved 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 constrained 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 required staff-
to-resident ratio, pull an assistant from another unit, or find a
volunteer. When seeking volunteers, it is Mars Home’s
informal policy that the assistant manager call the most junior
assistant first and that no employee may work for more than
16 consecutive hours. A program manager must approve any
overtime.




it is reasonable. We find that it is and thus is entitled to
deference.




                                10
       Also, there 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 decisions 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
direction, 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, which is not
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 Section
2(11) or did not use independent judgment is supported by
substantial evidence and will not be overturned.

                             IV.

       We have considered Mars Home’s remaining claims
and find them without merit. Mars Home for Youth’s
Petition for Review is DENIED. The National Labor
Relations Board’s Cross-Application for Enforcement of its
Order is GRANTED.




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