Application for Enforcement of an Order of the National Labor Relations Board.
Cudahy and Posner, Circuit Judges, and Holder, District Judge.*fn*
The respondent operates a 72-bed nursing home in Illinois that provides both intermediate and intensive care. The Labor Board directed an election for bargaining representative of the seven licensed practical nurses employed by the home. The union won the election (by one vote), the respondent refused to bargain with the union, and the Board brought unfair labor practice proceedings against the respondent and issued an order to bargain which it asks us to enforce. The respondent makes three alternative arguments to us: that its licensed practical nurses are supervisors and therefore not protected by the National Labor Relations Act, that a bargaining unit limited to licensed practical nurses is improper, and that the swing vote for the union was cast by a nurse who should not have been allowed to vote, because she was about to quit.
Section 2(3) of the Act, 29 U.S.C. § 152(3), excludes from the definition of "employee," and hence from the Act's protection, any "supervisor," defined in section 2(11), 29 U.S.C. § 152(11), as "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." Both provisions were added in 1947 by the Taft-Hartley Act.
Although section 2(11) -- at least its first part, up to "if" -- appears to define "supervisor" broadly, the appearance is deceptive. Supervision in the elementary sense of directing another's work is excluded; a supervisor under the statute must have authority over another's job tenure and other conditions of employment. This distinction is important because the Act allows professionals -- doctors, teachers, etc. -- to bargain collectively, see section 2(12), 29 U.S.C. § 152(12); Lumbermen's Mutual Casualty Co. of Chicago, 75 N.L.R.B. 1132 (1948), yet most professionals have some supervisory responsibilities in the sense of directing another's work -- the lawyer his secretary, the teacher his teacher's aide, the doctor his nurses, the registered nurse her nurse's aide, and so on. See NLRB v. Yeshiva University, 444 U.S. 672, 690 n. 30, 63 L. Ed. 2d 115, 100 S. Ct. 856 (1980). The distinction between supervision in the statutory sense and work direction by a professional is mentioned with approval in the legislative history of the 1974 Health Care Act Amendments, which put nonprofit health care institutions under the National Labor Relations Act though without amending section 2(11). See H. Rep. No. 1051, 93d Cong., 2d Sess. 7 (1974); S. Rep. No. 766, 93d Cong., 2d Sess. 6 (1974).
To understand the statutory definition of "supervisor" you must understand its role in the overall scheme of the National Labor Relations Act. The Wagner Act was of course intended to promote unionization. See, e.g., 49 Stat. 449, § 1 (preamble of Act); S. Rep. No. 573, 74th Cong., 1st Sess. 2, 4, 6 (1935); 78 Cong. Rec. 9888 (1934) (remarks of Representative Connery). Taft-Harley applied some brakes, so that the balance of power between companies and unions would not shift wholly to the union side. The exclusion of supervisors is one of the brakes. If supervisors were free to join or form unions and enjoy the broad protection of the Act for concerted activity, see section 7, 29 U.S.C. § 157, the impact of a strike would be greatly amplified because the company would not be able to use its supervisory personnel to replace strikers. More important, the company -- with or without a strike -- could lose control of its work force to the unions, since the very people in the company who controlled hiring, discipline, assignments, and the other dimensions of the employment relationship might be subject to control by the same union as the employees they were supposed to be controlling on the employer's behalf. We might become a nation of worker-controlled firms. Syndicalism is not the theory of the amended National Labor Relations Act.
Stated less dramatically, allowing supervisors in the special sense in which section 2(11) uses the term to bargain collectively could create serious conflicts of interest. A supervisor, by definition, has authority to control the conditions of employment "in the interest of the employer," and if he belonged to the same union as the employees he was charged with responsibility for firing, laying off, rewarding, or promoting, and could engage in protected concerted activity with those employees, he would have a bad case of divided loyalties. See Packard Motor Co. v. NLRB, 330 U.S. 485, 494-95, 498, 91 L. Ed. 1040, 67 S. Ct. 789 (1947) (dissenting opinion). The conflict is attenuated if he is just charged with supervising the employees' work, which as we have said is not supervision within the meaning of the statute.
These reflections on the purpose of section 2(11) are well supported by the legislative history, see H. Rep. No. 245, 80th Cong., 1st Sess. 13-17 (1947); S. Rep. No. 105, 80th Cong., 1st Sess. 4-5 (1947), and provide a framework for deciding whether the Board misapplied the statute in holding that the respondent's licensed practical nurses were employees rather than supervisors. Although the nurses may have some supervisory authority, the "if" clause in section 2(11), the legislative history indicating that the clause was intended to exclude from the definition of supervisor "straw bosses," "lead men," and other low-level employees having modest supervisory authority, see S. Rep. No. 105, supra, at 4, and the fact that these nurses are, if not full-fledged professionals, at least sub-professionals, indicates that their possession of some "supervisory" authority, loosely defined, need not prevent the Board from classifying them as employees rather than supervisors. But clearly we are in a gray area, where it is necessary to consider whether the balance of power and conflict of interest concerns that lie behind section 2(11) justify the Board's finding.
Technically, the Board's finding is one of fact, rather than a legal interpretation; and the proper standard of judicial review is therefore a deferential one. But it is a finding that necessarily leans heavily on an interpretation of the statute; and while the Board is entitled to some judicial deference in interpreting its organic statute as well as in finding facts, it would be entitled to even more if it had awakened its dormant rulemaking powers for the purpose of particularizing the application of section 2(11) to the medical field. Cf. Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 695 (1961); Gorman, Basic Text on Labor Law 17 (1976). By dealing with the issue entirely on an ad hoc, case-by-case basis, the Board has laid itself open to charges that its decisions applying section 2(11) have been more than tinged by opportunism -- that it construes "supervisor" broadly when the question is whether an employee's unlawful act can be imputed to the employer and narrowly when the question is whether the employee is protected by the Act. See Note, The NLRB and Supervisory Status: An Explanation of Inconsistent Results, 94 Harv. L. Rev. 1713 (1981); NLRB v. St. Mary's Home, Inc., 690 F.2d 1062, 1067 (4th Cir. 1982).
The respondent's nursing home has 6 employees who are conceded to be supervisors (the administrator of the home, 3 department heads, and 2 registered nurses), 39 other employees who are conceded not to be supervisors (15 nurses' aides, plus maintenance, laundry, food, and other nonmedical workers), and the 7 licensed practical nurses. Much of what the licensed practical nurses do is not supervision within the meaning of section 2(11) by any stretch of the imagination -- administering medication, filling out patients' charts, accompanying doctors on their rounds, and performing other standard nursing chores. But you need not be a full-time supervisor to be covered by the statute. See, e.g., Southern Indiana Gas & Elec. Co. v. NLRB, 657 F.2d 878, 884 (7th Cir. 1981). And while these licensed practical nurses are hourly rather than salaried employees, this also is unimportant, or at least not crucial; many foremen are also hourly employees, yet foremen undoubtedly are supervisors within the meaning of the statute. Nor, in light of the statutory words "effectively to recommend such action," is it important that the respondent's licensed practical nurses do not have formal or final authority to hire, fire, lay off, promote, reward, or discipline; most first-line supervisors -- foremen are again an example -- do not. Although on the evening (3 p.m. to 11 p.m.) and night (11 p.m. to 7 a.m.) shifts the licensed practical nurses are the highest-ranking employees on the premises, this does not ipso facto make them supervisors. A night watchman is not a supervisor just because he is the only person on the premises at night, and if there were several watchmen it would not follow that at least one was a supervisor.
With all this underbrush out of the way we may now consider what these nurses do while on duty that might count as supervision under the statute. They make written evaluations of the nurse's aides on forms provided by the respondent. These forms become part of the employment record of the nurse's aide but a licensed practical nurse cannot cause a nurse's aide to be fired by giving her a poor evaluation or cause her to be promoted by giving her a superlative evaluation. At least, nothing of this sort has happened yet. The employee evaluation forms are a recent innovation, their significance is far from clear, and so the Board was not required to infer just from them that the licensed practical nurses have authority "effectively to recommend" promotion or discharge of nurse's aides.
Once during the six-month period covered by the record a licensed practical nurse recommended that an employee -- a laundry worker caught sleeping on the job -- be discharged, and the recommendation was followed. Although any employee could recommend discharge in such a case, an employee whose responsibility it is to make such recommendations, and whose recommendations therefore carry a special weight with the employer and are normally or at least commonly followed, is a supervisor. But with very little evidence in the record that these licensed practical nurses have such a responsibility, the Board did not have to be persuaded by a single instance in which a recommendation for discharge was made and followed that they do.
Although the administrator of the nursing home testified that licensed practical nurses have authority to suspend employees for brief periods for violating specific rules set forth in a handbook that each employee receives when he is hired, she could give only one instance of this during the six months. A nurse's aide showed up drunk. "The LPN there said she didn't know what she was supposed to do," so she called the administrator, and the administrator directed that the employee be fired. The Board was ...