N.L.R.B. v. Lake County Ass'n for Retarded, Inc., 96-3535
| Decision Date | 13 November 1997 |
| Docket Number | No. 96-3535,96-3535 |
| Citation | 128 F.3d 1181 |
| Parties | 156 L.R.R.M. (BNA) 2891, 134 Lab.Cas. P 10,082 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAKE COUNTY ASSOCIATION FOR THE RETARDED, INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Elizabeth Kinney, National Labor Relations Board Region 13, Chicago, IL, Aileen A. Armstrong, Margaret Gaines Neigus, National Labor Relations Board Appellate Court, Enforcement Litigation, Washington, DC, Jeffrey Lawrence Horowitz (argued), National Labor Relations Board, Washington, DC, for Petitioner.
Michael A. Luvisi (argued), Donna King Perry, Woodward, Hobson & Fulton, Louisville, KY, for Respondent.
Before CUDAHY, MANION and ROVNER, Circuit Judges.
The National Labor Relations Board (NLRB or the Board) applies to us for enforcement of its unfair labor practice order issued against the Lake County Association for the Retarded, Inc. (Lake County). Lake County opposes the application on the grounds that the NLRB improperly disregarded certain stipulations to which Lake County and the United Automobile, Aerospace, and Agricultural Equipment Workers of America (UAW) agreed, and that the NLRB selected an inappropriate bargaining unit. For the reasons discussed below, we grant the NLRB's request for enforcement.
When a union seeks to organize a company, the enthusiasm of its employees commonly varies based on where they work and what they do. The unevenness of support can powerfully shape how the union and the company would choose to define the appropriate electoral unit. The union will naturally favor including as many pro-union workers as possible, and cordoning off workers likely to oppose it. The employer just as naturally will want the opposite.
The arbiter in this conflict is the NLRB, charged under Section 9(b) of the National Labor Relations Act (the Act) with the power to define the appropriate bargaining unit. 29 U.S.C. § 159(b). After the NLRB has ruled what the appropriate bargaining unit is, it may direct an election. If the union wins, the employer can refuse to bargain-but the union can then petition the NLRB to order the employer to enter into collective bargaining. If the NLRB so orders the employer, the employer may decline. The NLRB may then petition the Court of Appeals for enforcement. Only then may the employer challenge the union's certification. See generally 4 Theodore Kheel, Labor Law § 14.01 (1997); 2 id. § 7.04.
Such is the posture of this case. The employer is Lake County, a non-profit corporation that cares for the mentally retarded in Lake County in northwest Indiana. In January 1995, the UAW called for an election at Lake County. An NLRB officer held hearings in late January and mid-February on the appropriate bargaining unit. The investigation was aligned along two axes. The first was the horizontal. The employees of Lake County essentially work in two settings, residential and day services. Those in residential services care for four to six clients in 34 group homes. Those in day services work at five "sheltered workshops," where they train Lake County's clients in a broad spectrum of skills, from sewing to socializing. The UAW originally had it in mind to seek certification of a bargaining unit of employees only from the residential side. Lake County countered that the bargaining unit ought to embrace workers from both sides in a "wall-to-wall" unit. The logic of the conflict was plain: the UAW stated it would not proceed to an election if the NLRB accepted Lake County's proposed wall-to-wall unit, presumably because the UAW thought it would lose. From what we can tell from the hearing transcripts, Lake County and the UAW had not considered other options.
The other axis was the vertical. We say vertical because, as a general matter of labor law, the closer someone's slot is to management, the less likely she is to be included in a bargaining unit as an "employee," as the Act defines the term. Thus the Act excludes supervisors, 29 U.S.C. § 152(3), managerial employees, NLRB v. Bell Aerospace Co., 416 U.S. 267, 268-69, 94 S.Ct. 1757, 1759-60, 40 L.Ed.2d 134 (1974), and certain non-managerial confidential employees, NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U.S. 170, 190, 102 S.Ct. 216, 228, 70 L.Ed.2d 323 (1981). See generally 4 Kheel, supra, at § 14.02. Lake County and the UAW disagreed somewhat over which kinds of jobs--such as residential supervisors, medical assistants or behavioral specialists--would be included in whatever bargaining unit the NLRB decided upon. As will become pertinent later, their disagreement was bookended by the law governing what categories were eligible to be counted as employees. So, with these questions essentially constrained by the law, stipulations were quite feasible. And, with the disagreement mapped out along these two axes, the case went for a decision to the NLRB's Acting Director for Region 13 (the Acting Director).
The Acting Director surprised both Lake County and the UAW: she defined a bargaining unit smaller than either party had anticipated. She first classified Lake County's jobs as entry level, expert, and ancillary:
Entry level
Residential: residential supervisor, relief supervisor, program assistant, ARS facilitator, semi-independent living trainer
Day: workshop supervisor, training aide, lead supervisor, social integration program supervisor, social integration program technician, vocational trainer, kitchen supervisor, recreation manager, recreation supervisor, shipping/receiving supervisor, janitorial supervisor, social integration program lead technician, adult day activity supervisor
Residential: residential nurse, residential LPN, counselor, individual program coordinator, behavior specialist
Day: nurse, social worker, enrichment trainer, employee integration trainer
Residential: maintenance worker, area clerk, residential social secretary, accounting clerk
Day: maintenance worker, truck driver, clerical employee
The entry level positions require no degree or formal training, and pay $6.49 per hour. The expert category consists of employees required to possess degrees in their areas of specialization; these employees are generally salaried, earning between $18,000 and $25,000 per year. Ancillary employees such as accounting clerks generally do not work directly with clients. Employees in the expert and ancillary categories generally work Monday through Friday from 9 a.m. to 4:30 p.m., as do entry level day services employees. Certain employees in the expert category are required to be on call at other times as well.
On the horizontal axis, the Acting Director agreed with Lake County that a residential-only bargaining unit (favored by the UAW) failed to embrace a "community of interest," the Board's catch-phrase for a group of employees whose interests line up enough to make a coherent bargaining unit, see NLRB v. Action Automotive, Inc., 469 U.S. 490, 494, 105 S.Ct. 984, 987, 83 L.Ed.2d 986 (1985). Too many commonalities bridged residential and day services, she held, to allow for simply divorcing the two halves. Residential and day workers did the same work (often side-by-side), with the same education and skills, for similar pay and benefits and under the same overall supervision. No real distinction divided maintenance employees working on the same task or clerks sitting in the same office, beyond the formal labels of residential and day.
The Acting Director also conceded that the wall-to-wall unit that Lake County endorsed did constitute a community of interest. Still she did not approve it. Instead she chose a bargaining unit limited to workers in residential services, but one smaller than residential workers as a whole. The key shift was on the vertical axis. The difficulty with the UAW's proposed unit was that too many commonalities crossed the residential/day divide. The Acting Director solved these problems by lopping off the expert and ancillary employees. She thus limited the unit to the five hands-on entry level residential positions.
While not what the UAW had asked for, the certified bargaining unit proved attractive enough for the UAW to go ahead with an election. It won, 83 to 61. Lake County argues that the Acting Director drew (and the NLRB approved) an electoral unit that defies law, fact and common sense. Lake County's chief argument is that the NLRB breached the express stipulations of the parties, and that the electoral unit is therefore void. Lake County's fallback is that the certified bargaining unit has no community of interest.
Lake County cites several points in the lengthy hearings when the UAW and it entered into overt stipulations. The question is to what were they stipulating. To answer that, we must look to the context of the stipulations. Here is the key passage (there are other passages to which Lake County adverts, but they make the same point):
HEARING OFFICER: The parties have agreed that of the--I believe it is 21 employee classifications we know of on the residential side, a majority of them are properly within the unit, and I therefore propose the following stipulation.
That within any appropriate unit, any unit found appropriate herein by the Regional Director, the employees employed in the following classifications shall be included in that unit: Residential Supervisor, Program Assistant, Program Assistant II, Relief II, Area Clerk, Maintenance, SILP Trainer, SILP Trainer II, Residential/Social Services Secretary, Residential LPN, Health Assistant, Health Assistant II, Department of Accounting Clerk, and Medical Assistant.
Hearing Transcript at 7 (emphasis added); see also H.T. at 102, 204-11, 609-10, 705. The parties adopted this stipulation.
To lay out Lake County's syllogism: the parties explicitly stipulated that any unit would include that list of jobs. Yet the unit that the...
To continue reading
Request your trial
-
Alaska Commc'ns Sys. Holdings, Inc. v. Nat'l Labor Relations Bd.
...specific information that it was foreclosed from presenting that contradicts the NLRB's findings." NLRB v. Lake Cnty. Ass'n for the Retarded, Inc. , 128 F.3d 1181, 1185 n.2 (7th Cir. 1997). The Company relatedly suggests that, because it ostensibly received inadequate notice of possible bar......
-
Alaska Commc'ns Sys. Holdings v. Nat'l Labor Relations Bd.
...that it was foreclosed from presenting that contradicts the NLRB's findings." NLRB v. Lake Cnty. Ass'n for the Retarded, Inc., 128 F.3d 1181, 1185 n.2 (7th Cir. 1997). The Company relatedly suggests that, because it ostensibly received inadequate notice of possible bargaining units, the Boa......
-
Exemplar, Inc.
...proposals of the parties. See, e.g., Overnite Transportation Co., 331 NLRB 662, 663 (2000); NLRB v. Lake County Assn. for the Retarded, 128 F.3d 1181, 1185 fn. 2 (7th Cir. 1997). The Employer asserts that the petitioned-for multifacility unit is presumptively inappropriate, invoking the Boa......
-
In re Young Bros.
...of the parties. See, e.g., Overnite Transportation Co., 331 N.L.R.B. 662, 663 (2000); NLRB v. Lake County Assn. for the Retarded, 128 F.3d 1181, 1185 fn. 2 (7th Cir. 1997). The Employer argues that the petitioned-for unit is not appropriate under the Board's accretion standards, observing t......