Children's Habilitation Center, Inc. v. N.L.R.B.

• Decision Date: 13 October 1989
• Docket Number: 88-2735,Nos. 88-2538,s. 88-2538
• Citation: 887 F.2d 130
• Parties: 132 L.R.R.M. (BNA) 2780, 113 Lab.Cas. P 11,631 CHILDREN'S HABILITATION CENTER, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 130

887 F.2d 130

132 L.R.R.M. (BNA) 2780, 113 Lab.Cas. P 11,631

CHILDREN'S HABILITATION CENTER, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 88-2538, 88-2735.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 1989.

Decided Oct. 13, 1989.

Linda L. Eyestone, Scariano, Kula, Ellch & Himes, Chicago, Ill., for Children's Habilitation Center, Inc.

Aileen A. Armstrong, Collis Suzanne Stocking, Margaret G. Bezou, James M. Stephens, N.L.R.B., Washington, D.C., Ann C. Hodges, Katz, Friedman, Schur & Eagle, Chicago, Ill., Margaret G. Bezou, Donald J. Crawford, N.L.R.B., Albert Washington, General Service Employees Union, Chicago, Ill., for N.L.R.B.

Before CUMMINGS and POSNER, Circuit Judges, and GORDON, Senior District Judge. ^*

POSNER, Circuit Judge.

The Labor Board found that the five charge nurses employed by the Children's Habilitation Center--a residential facility that houses some 120 seriously ill and handicapped children and youths--are not supervisors within the meaning of section 2(11) of the National Labor Relations Act, 29 U.S.C. Sec. 152(11), and hence are eligible to vote in representation elections. The validity of that determination is the only issue before us, and it is controlled by two decisions rendered on the same day six years ago, NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th Cir.1983), and NLRB v. American Medical Services, Inc., 705 F.2d 1472 (7th Cir.1983). The first affirmed, and the second reversed, determinations by the Board that charge nurses in nursing homes were not supervisors. The facility in the present case is functionally a nursing home, albeit for the young rather than for the old.

As we explained in Res-Care, the principal opinion, the word "supervisor" in the Act is a term of art, since the statutory definition--"any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, 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 knowledge"--allows an employee to do some supervision without thereby becoming a supervisor under the Act. This frequently happens when the employee is a professional acting in accordance with professional norms. Examples are a lawyer directing paralegals and a registered nurse directing nurse's aides. See 705 F.2d at 1465.

In an effort to give practical meaning to the detailed but nondirective statutory definition, we inquired in Res-Care into the considerations of policy that inform the exclusion of supervisors from the protections of the National Labor Relations Act. We found two such considerations, closely related. See id. at 1465-66. The first is the maintenance of a reasonable balance of power between employer and union. The provision excluding supervisors is a legacy of the Taft-Hartley Act, which sought to correct what had come to be thought of as the Wagner Act's excessive tilt toward unions. If supervisors could form unions entitled to the protections of federal labor law (nothing in that law forbids supervisors' unions--the law just denies them the legal protections that it gives unions of nonsupervisory employees), the company would find it difficult to persuade its supervisors to replace striking workers so that the company would not have to shut down during a strike. More important (because not limited to a strike situation, and because, until recently, replacement workers were rarely used to defeat strikes), the company could lose control of its work force to the unions. The employees who controlled the hiring, discipline, assignment, promotion, layoff, and recall of the work force might be subject to control by the same union as the workers whom they were supposed to be directing, monitoring, disciplining, and otherwise controlling on the company's behalf.

The second policy behind the exclusion of supervisors is an attenuated version of the first. It is the danger not of full-blown syndicalism but of conflicts of interest if the same employee is both a union member and a master of the fates of other union members--if, in other words, his loyalties are divided between the employer and the work force. Even if the supervisor does not take the union's side on every occasion, the inevitable dilution of his commitment to the employer will impair the hierarchical discipline that is the hallmark of business organizations and that, judging by the test of survival, is a necessary condition of managerial efficiency. The employer may not lose control of the work force but the efficiency of his operation may be impaired.

To translate these policies into results in particular cases is a task for the Board, and we review its determinations with a lightish hand. How light? For different formulations compare NLRB v. Res-Care, Inc., supra, 705 F.2d at 1466, with NLRB v. Don's Olney Foods, Inc., 870 F.2d 1279, 1281 (7th Cir.1989). More important than verbal niceties in the standard of review is judicial impatience with the Board's well-attested manipulativeness in the interpretation of the statutory test for "supervisor." See Note, The NLRB and Supervisory Status: An Explanation of Inconsistent Results, 94 Harv.L.Rev. 1713 (1981); NLRB v. Res-Care, Inc., supra, 705 F.2d at 1466; NLRB v. St. Mary's Home, Inc., 690 F.2d 1062, 1067 (4th Cir.1982). An administrative agency, like any other first-line tribunal, earns--or forfeits--deferential judicial review by its performance.

Our analysis of the Board's determinations in Res-Care and in American Medical Services emphasized two considerations. They will continue to be our guiding lights in charge-nurse cases. The first is the ratio of supervisory to nonsupervisory employees under the competing positions of the parties; the second is the disciplinary authority of the alleged supervisors. The first consideration is central to the balance of power concern, the second to conflict of interest. In Res-Care, where we upheld the Board's determination that the charge nurses were not supervisors, the ratio of supervisors to nonsupervisors was 6 to 46 under the Board's theory (.13) and 13 to 39 (.33) under the company's; it was apparent that the company was classifying a large fraction of its employees as supervisors. In American Medical Services the ratio was 6 to 159 under the Board's theory (.04) and 23 to 142 under the company's ...