# Robert H. Mourning v. National Labor Relations Board, McDonnell Douglas Corporation, Intervenor

> Court of Appeals for the D.C. Circuit · May 13, 1977 · 559 F.2d 768

URL: https://www.frixlaw.com/law-library/cases/9463998

## Case

- **Full name:** Robert H. MOURNING, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McDonnell Douglas Corporation, Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 13, 1977
- **Citations:** 559 F.2d 768; 182 U.S. App. D.C. 147; 95 L.R.R.M. (BNA) 2463; 1977 U.S. App. LEXIS 13409
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Bazelon, Leventhal, MacKINNON, Per Curiam
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463998

## How later opinions describe it (automated extraction)

- finding the statute did not preclude a petitioner who failed to advance an issue before the Board from seeking judicial review because the General Counsel’s brief raised the argument below

## Opinion text

Opinion Per Curiam.
Dissenting Opinion by Circuit Judge MacKINNON.
PER CURIAM:
The issue on this appeal is whether petitioner Mourning, during the period preceding his dismissal, was an “employee” protected by the National Labor Relations Act or was a “supervisor” outside the Act’s protection. 1
Petitioner appeals from the NLRB’s affirmance of “the rulings, findings and conclusions of the Administrative Law Judge and . . . [the adoption of] his recommended Order.” That Order dismissed petitioner’s Section 8(a)(1) and (a)(3) complaint, relying on a 1973 trilogy of Board cases (207 N.L.R.B. Nos. 90, 91, 92) which held that “pilots who ‘serve some of their time as captains, at which time they are responsible for, and in complete control of, the plane and all persons on board,’ are supervisors under [Section 2(11) of] the Act,” and therefore not protected by Section 8. 2 In the trilogy cases, the planes carried crews consisting of a captain, pilot, copilot, and two flight engineers. The ALJ found that the present case was distinguishable from the facts of the trilogy only “in degree and not kind since Mourning and his contemporaries did spend significant flight time as pilots in command with at least one subordinate crew member, a copilot, on board.”
In his brief to this court and at oral argument, petitioner stated that “all of the transport pilots exercised . . . command authority, vis-a-vis each other, from time to time” and they never “exercised such authority over any other employees.” Therefore, petitioner contended, he and his fellow pilots could not be supervisors because there were no “employees” for them “responsibly to direct.” Petitioner’s Br. at 31 n.19.
As noted below, this is not a case where the Board has identified the trouble *770 some problem of statutory interpretation and spoken to it deliberately, thus creating a considered administrative interpretation calling for deference. Examining the question for ourselves without the benefit of the Board’s views, we would be inclined to agree with petitioner that a person generally may not be considered a “supervisor” unless he exercises Section 2(11) authority over an “employee” as defined by Section 2(3), which expressly excludes “any individual employed as a supervisor.” 3 29 U.S.C. § 152 (3). See Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 44 (7th Cir. 1969) (concluding that the term “employees” in Section 2(11) is to be interpreted by reference to Section 2(3)).
Proceeding from this statutory construction, we question the factual predicate for the NLRB’s order. The record does not clearly indicate whether the ALJ and the Board rested their decisions on petitioner’s command authority over a several-person crew or simply over an occasional copilot who was of the same rank as petitioner and would have supervisory status if petitioner did. The ALJ’s finding states, ambiguously, that petitioner sometimes commanded “at least one subordinate crew member, a copilot,” JA 9 (emphasis added), suggesting that he occasionally directed a larger crew. However, the record seems to indicate that although petitioner sometimes carried company employees as passengers, JA 54-58, *771 his actual crew never exceeded one copilot, JA 22-23 4
The ALJ’s failure to clarify this crucial point suggests that he may have been unaware of its legal significance. Indeed, the Board argues that petitioner is foreclosed from raising this issue on appeal because he did not advance it before the Board and “the Board has not had an opportunity to address this contention, either in the proceeding below or on this appeal.” Letter from NLRB, dated December 14, 1976.
Inasmuch as the General Counsel’s brief raised this argument below, 5 we do not believe that petitioner is precluded from pressing the issue. However, in view of the position of Board counsel that the Board has not had the opportunity to address this contention, and in view of the ambiguity in the ALJ’s findings, we remand the record for the benefit of the Board’s consideration of the legal question raised by petitioner, and for clarification of the factual questions (1) whether petitioner’s crew ever consisted of persons who were “employees” within Section 2(3) or were merely other pilots like himself, and (2) if so, whether the authority he exercised over these employees was not “too sporadic and routine” to warrant classifying him as a supervisor. See Illinois State Journal-Register, Inc. v. N.L.R.B., 412 F.2d 37, 44 (7th Cir. 1969); N.L.R.B. v. Sayers Printing Co., 453 F.2d 810, 815 (8th Cir. 1971); N.L.R.B. v. Security Guard Service, 384 F.2d 143, 149-51 (5th Cir. 1967).
. This case was previously before this Court on a different issue. 505 F.2d 421 (1974).
. Section 8 of the National Labor Relations Act protects “employees” in certain union-organizing activities. Section 2(3) of the Act defines “employee” as follows:
The term “employee” shall include any employee . . . but shall not include . any individual employed as a supervisor
Section 2(11) provides:
The term “supervisor” means 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 responsibly to direct them .
. The dissent argues that Section 2(11) does not depend on Section 2(3) for its definition of “employees.” In other words, a supervisor is simply one who directs other workers, who in turn may or may not be Section 2(3) employees. The dissent appears to rely on two arguments to support this statutory construction.
First, because Section 2(11) defines “supervisor” as one having authority to direct “other employees,” Congress must have meant the term “employees” in its broad, everyday sense rather than its more limited Section 2(3) sense. Otherwise, Congress would not have used the word “other.” We think this superfluity argument is satisfactorily answered by Illinois State Journal-Register, Inc. v. N.L.R.B., 412 F.2d 37, 43-44 (7th Cir. 1969), which relied on the Board’s own reasoning to conclude:
By looking to Section 2(3) for the definition of employee to determine whether an individual is a supervisor does not render the term ‘other’ in Section 2(11) superfluous, but rather the term functions to limit the statutory definition of a supervisor to those individuals who are given by their employer supervisory authority over other employees of that same employer.
In other words, “other employees” refers to other workers of that same employer as opposed to different employers; it does not mean other workers than the supervisor himself.
Second, the dissent poses the hypothetical of a company with multiple layers of management and supervisors to show that a person might be a supervisor without having Section 2(3) employees directly under him. What the dissent overlooks, however, is that for this person and those he directs to be classified as Section 2(11) supervisors, they all must act as links in a chain of command between management and Section 2(3) employees. In other words, although a particular supervisor may have no Section 2(3) employees directly under him, it would seem that he cannot be considered a Section 2(11) supervisor unless the persons he directs have authority over Section 2(3) employees. This rule would seem to be compelled by the policies behind Sections 2(3) and 2(11). Congress excluded supervisors from the protections of the Act to assure that these agents of management would not be pressured by divided loyalties and because employees need protection from management’s agents as much as from management itself. See Retail Clerks Int’l Ass’n v. N.L.R.B., 125 U.S.App.D.C. 63 , 366 F.2d 642, 644-45 , cert. denied, 386 U.S. 1017 , 87 S.Ct. 1373 , 18 L.Ed.2d 455 (1966). But to be agents of management, they must exercise authority — either directly or via a chain of command consisting of inferior supervisory employees — over other employees who are potentially protected by the Act. Hence, while the dissent’s hypothetical is plausible, it would not seem to control the present case unless Mourning or those he sometimes directed can be shown to have exercised Section 2(11) authority over other employees as defined in Section 2(3).
This fundamental policy also explains why Section 2(11) supervisory status would not seem able to rest solely on an arrangement in which the person concerned alternates with others of like status between supervisor and supervisee, with no purely Section 2(3) employees farther down the line of command. Under such circumstances, where the same workers alternate as supervisors and supervisees, there is no continuing conflict of interest arising from their ties with both management and Section 2(3) employees to justify their exclusion from the protection of the NLRA.
. A pilot’s supervisory status logically must rest on his power to direct crew members, not merely passengers. In one of the trilogy cases, the Board stated:
In a number of cases, the Board has found that ships’ captains and pilots responsibly direct ships’ crews and on this ground alone has found the captains and pilots to be supervisors. We find, therefore, that the pilots [here, whose planes carried a crew consisting of a captain, pilot, copilot, and two flight engineers] . . . are supervisors within the meaning of the Act.
Lockheed-California Co., 207 N.L.R.B. No. 92, p. 6 (1973). Although a pilot may have temporary authority to command non-crew passengers for reasons of safety, the command powers that might make a pilot a supervisor within Section 2(11) pertain to continuing management-employee work relationships and normally would not be exercised over occasional passengers. See NLRB v. Security Guard Service, Inc., 384 F.2d 143, 146-47, 151 (5th Cir. 1967); International Union of United Brewery, etc. v. NLRB, 111 U.S.App.D.C. 383 , 298 F.2d 297, 303 (1961), cert. denied sub nom. Gulf Bottlers, Inc. v. NLRB, 369 U.S. 843 , 82 S.Ct. 875 , 7 L.Ed.2d 847 .
. In urging the Board to overturn the findings of the ALJ, the General Counsel pointed out that in the trilogy cases, the pilots directed a crew normally consisting of “a captain, pilot, co-pilot and two flight engineers.” While conceding that those pilots’ authority to direct those crews brought them within Section 2(11), the General Counsel argued that the record failed to show that petitioner ever “responsibly directed other employees” because his copilot was also a pilot like himself. Therefore, said the General Counsel, “[i]t would seem difficult to find Mourning to be a supervisor since the evidence clearly indicates that there was in fact no one for him to direct or supervise.’’ We think this objection by the General Counsel satisfies the requirements of Section 10(e), which states: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160 (e).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463998. Public record. Not legal advice.