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

MacKINNON, Circuit Judge,

dissenting;

This case involves an important uncertainty in the National Labor Relations Act, 29 U.S.C. §§ 141 ef seq., which is now addressed in footnote 3 of the majority opinion. Section 2(3) of the Act provides:

The term “employee shall include any employee . . . but shall not include any individual employed as a supervisor .

29 U.S.C. § 152 (3) (1970) (emphasis added). Section 2(11) of the Act provides:

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, . or discipline other employees, or responsibly to direct them .

29 U.S.C. § 152 (11) (1970) (emphasis added).

Section 2(3) defines “employee” loosely, i.e., to “include” etc., while section 2(11) is a more rigid definition as it states what the word “supervisor” “means.” Thus, in the case of a conflict section 2(11) would give *772 way the least. Supervisors direct “other employees.” It follows that supervisors are themselves employees, at least in some contexts, i.e., for the purposes of section 2(11). Otherwise, the statute could merely have read “supervisors direct employees,” not “supervisors direct other employees.”

The only case to discuss this question is Illinois State Journal-Register, Inc. v. N.L.R.B., 412 F.2d 37 (7th Cir. 1969). The issue there was whether independent contractors were “employees” within the meaning of the statutory phrase “supervisors direct other employees.” The court held that they were not stating:

[T]he term [“other”] 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.

412 F.2d at 44 (emphasis in the original).

The majority opinion is thus in error in citing Illinois State Journal-Register, as it does, for the proposition 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.”

Maj.op. at - of 182 U.S.App.D.C., at 770 of 559 F.2d. All Illinois State Journal-Register holds is that the supervisees cannot be independent contractors but must be employees of the same employer.

At the same time, the strict language of the definitions of “employee” and “supervisor” gives some support for a tentative construction that an “individual employed as a supervisor” cannot be an employee under section 2(3); that supervisors must direct other employees; and hence, supervisors cannot be those who direct “individuals employed as supervisors.” There are two ways to apply the definitions in question.

The first is taken by the majority opinion. It ignores the phrase “supervisors direct other employees” and focuses on the language in section 2(3). It concludes that Mourning is an employee if the only persons he supervises are other supervisors. That leads to anomalous results. Consider an officer of a corporation who only deals with other officers and supervisors. If one were to follow the rationale of the majority, such corporate officers would be employees, and a union of executive officers who only supervise officers and supervisors could seek recognition under the labor laws. Since these others are of his own rank in the company, or are themselves involved in giving further orders to implement his directives, he only supervises other supervisors, and hence is an employee.

The majority opinion in footnote 3 responds by terming “supervisors” those who “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.” Squaring that definition with the statute is a difficult task; supervisors must have authority “responsibly to direct them [other employees], or to adjust their grievances, or effectively to recommend such action,” according to the statute. Gone in the majority formulation is the requirement of responsible direction of other employees; in its place is an amorphous exercise of decision-making via layers of staff with eventual impact on employees. Further, the majority formulation requires that the chain of supervision include eventually section 2(3) employees. This is a circular definition since by section 2(11) a supervisor cannot be a section 2(3) employee. 1

The labor act requires supervisors to direct employees responsibly, not simply to make choices that eventually affect them. *773 All members of this panel are agreed that high level managers are “supervisors” under the Act. This must be because such people give orders to others who are, for section 2(11) purposes, “other employees”; not because the high level manager’s order to “increase output” eventually works its way into some assembly line moving faster.

The second view is to stress the language used in section 2(3): “individual employed as a supervisor,” rather than the single word “supervisor.” When an individual receives direction (whether it be as a junior officer in the hypothetical or as a co-pilot in the Mourning setting), he is not at that moment “employed” “as a supervisor.” But that does not convert him into an “employee” to the extent that he has “employee” rights under the Act, because the test for “employee” status under section 2(3) considers, among other factors, whether supervisory authority is exercised to any significant extent. The test for “employee” in the context of determining who are being “supervised” by “supervisors” is different— such determination turns on the “authority” conferred on the individual by the employer and whether that authority is being exercised to a significant extent in the interest of the employer.

Interpreting “employee” in this manner is completely consistent with 2(ll)’s use of the phrase “other employees.” Section 2(11) recognizes that supervisors are themselves supervised and in turn supervise employees of the company. Corporate officers operate similarly, receiving and giving directions.

Only the second construction avoids the dilemma of the union of corporate officers. It might be argued that all corporate officers give directions to some non-supervisors — secretaries for instance. Such a response is ineffective. Many corporate officers at the highest level function through junior officers (who are in turn supervisors) to such an extent that any authority over non-supervisors is a trivial part of their job, for purposes of ordinary section 2(11) law.

Accordingly, it is my opinion that Mourning is a supervisor by reason of his FAA-recognized authority responsibility to direct co-pilots whoever they may be. This would result in affirming the Board rather than remanding the case for further proceedings after eight years, and would pre-empt the need to consider the other incidents of Mourning’s supervisory status (such as conducting instructional flights, where the employee pupils never were supervisors).

We are basically faced with a choice of how to characterize a situation where a group of individuals work a great deal in directive relationships to each other, with the role of the director sometimes trading off. 2 The essential element of such an arrangement seems to be that very element that the National Labor Relations Act wished to exclude from employee collective bargaining units: authority in the interest of the employer responsibly to direct others who serve the same company. In my view we should affirm the Board.

. The majority reasons one is not a § 2(3) employee if one is a supervisor and a supervisor is one who supervises other § 2(3) employees. Hence the majority asserts, in effect, one is not a § 2(3) employee if he supervises § 2(3) employees. The vice of this reasoning is that it does not provide a standard for determining who are § 2(3) employees. This circularity results from the majority’s focusing exclusively on the definition in § 2(3). Such result is avoided if one focuses instead on the function of supervision, as expressed in § 2(11), rather than on the subject of the supervision.

. The majority opinion, in footnote 3, justifies its view that none of its pilots were supervisors by explaining that “where the same workers alternate as supervisors and supervisees, there is no continuing conflict of interest arising from their ties with both management and § 2(3) employees to justify their exclusion from the protection of the NLRA.” The need for a “continuing” conflict has never been recognized as necessary for supervisory status — that a conflict might potentially arise, even for a brief emergency, has long been recognized as providing ample authority for one employee to be deemed another’s supervisor. See, e.g., Ohio Power Co. v. NLRB, 176 F.2d 385, 388 (6th Cir.), cert. denied, 338 U.S. 899 , 70 S.Ct. 249 , 94 L.Ed. 553 (1949); cf. Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631, 634 (6th Cir. 1968). If pilot and copilot were both union members, a single confíict of interest between their union loyalties and the interests of management relative to the flight could well be disastrous.