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National Labor Relations Board v. Lake County Association for the Retarded

November 13, 1997




Appeal from the United States District Court for the Northern District of Illinois, Western Division.

No. 95 C 50105 Philip G. Reinhard, Judge.

Before Cudahy, Manion and Rovner, Circuit Judges.

Cudahy, Circuit Judge.

On Application for Enforcement of an Order of the National Labor Relations Board

Argued May 15, 1997

Decided November 13, 1997

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.

I. Background

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. sec. 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 sec. 14.01 (1997); 2 id. sec. 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. sec. 152(3), managerial employees, NLRB v. Bell Aerospace Co., 416 U.S. 267, 268-69 (1974), and certain non-managerial confidential employees, NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U.S. 170, 190 (1981). See generally 4 Kheel, supra, at sec. 14.02[2]. 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 ...

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