| Syllabus | Dissent [ Ginsburg ] | Opinion [ Kennedy ] |
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SUPREME COURT OF THE UNITED STATES
No.
[
Justice
ployee" as one whose work is "predominantly intellectual and varied in character," involves "the consistent exercise of discretion and judgment in its performance," produces a result that "cannot be standardized in relation to a given period of time," and requires knowledge "in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital." 29 U.S.C. § 152(12)(a). [n.2]
The categories "supervisor" and "professional" necessarily overlap. Individuals within the overlap zone--those who are both "supervisor" and "professional"--are excluded from the Act's coverage. For that reason, the scope accorded the Act's term "supervisor" determines the extent to which professionals are covered. If the term "supervisor" is construed broadly, to reach everyone with any authority to use "independent judgment" to assign and "responsibly . . . direct" the work of other employees, then most professionals would be supervisors, for most have some authority to assign and direct others' work. If the term "supervisor" is understood that broadly, however, Congress' inclusion of professionals within the Act's protections would effectively be nullified.
The separation of "supervisors," excluded from the Act's compass, from "professionals," sheltered by the Act, is a task Congress committed to the National Labor Relations Board (NLRB or Board) in the first instance. The Board's attempt to carry out that charge is the matter under examination in this case.
The controversy before the Court involves the employment status of certain licensed practical nurses at Heartland Nursing Home in Urbana, Ohio. Unlikeregistered nurses, who are professional employees, licensed practical nurses are considered "technical" employees. The Board, however, applies the same test of supervisory status to licensed practical nurses as it does to registered nurses where, as in this case, the practical nurses have the same duties as registered nurses. See 306 N. L. R. B. 68, 69, n. 5 (1992) (duties of staff nurses at Heartland, the evidence showed, "were virtually the same whether the nurses were [licensed practical nurses] or [registered nurses]"); Ohio Masonic Home, Inc., 295 N. L. R. B. 390, 394-395, and n. 1 (1989); cf. NLRB v. Res Care, Inc., 705 F. 2d 1461, 1466 (CA7 1983) (licensed practical nurses "are, if not full fledged professionals, at least sub professionals").
Through case by case adjudication, the Board has sought to distinguish individuals exercising the level of control that truly places them in the ranks of management, from highly skilled employees, whether professional or technical, who perform, incidentally to their skilled work, a limited supervisory role. I am persuaded that the Board's approach is rational and consistent with the Act. I would therefore uphold the administrative determination, affirmed by the Board, that Heartland's practical nurses are protected employees.
As originally enacted in 1935, the National Labor Relations Act (Act), 29 U.S.C. § 151 et seq., did not expressly exclude supervisors from the class of "employees" entitled to the Act's protections. See §§7, 2(3), 49 Stat. 452, 450. The Board decided in Packard Motor Co., 61 N. L. R. B. 4 (1945), that in the absence of an express exclusion, supervisors must be held within the Act's coverage. This Court agreed, stating that the language of the Act allowed no other interpretation. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947).
Congress responded by excluding supervisors in the Labor Management Relations Act of 1947. [n.3] The Senate Committee Report noted that the Senate's definition of "supervisor" [n.4] had been framed with a view to assuring that "the employees . . . excluded from the coverage of the act [would] be truly supervisory." S. Rep. No. 105, 80th Cong., 1st Sess., 19 (1947) (hereinafter Senate Report), Legislative History 425; see also H. Conf. Rep. No. 510, 80th Cong., 1st Sess., 35 (1947), Legislative History 539 ("supervisor" limited "to individuals generally regarded as foremen and persons of like or higher rank"). As the Senate Report explains:
"[T]he committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusion [within the protections of the Act]. It has therefore distinguished between straw bosses, leadmen, set up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to suchaction." Senate Report, at 4, Legislative History 410.
The purpose of §2(11)'s definition of "supervisor," then, was to limit the term's scope to "the front line of management," the "foremen" who owed management "undivided loyalty," id., at 5, Legislative History 411, as distinguished from workers with "minor supervisory duties."
At the very time that Congress excluded supervisors from the Act's protection, it added a definition of "professional employees." See 29 U.S.C. § 152(12). [n.5] The inclusion of that definition, together with an amendment to §9(b) of the Act limiting the placement of professionals and nonprofessionals in the same bargaining unit, see n. 1, supra, confirm that Congress did not intend its exclusion of supervisors largely to eliminate coverage of professional employees.
Nevertheless, because most professionals supervise to some extent, the Act's inclusion of professionals is intension with its exclusion of supervisors. The Act defines a supervisor as "any individual" with authority to use "independent judgment" "to . . . assign . . . other employees, or responsibly to direct them." Professionals, by definition, exercise independent judgment, see 29 U.S.C. § 152(12), and most professionals have authority to assign tasks to other employees and "responsibly to direct" their work. See NLRB v. Res Care, Inc., 705 F. 2d 1461, 1465 (CA7 1983) (Posner, J.) ("[M]ost 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."). If possession of such authority and the exercise of independent judgment were sufficient to classify an individual as a statutory "supervisor," then few professionals would receive the Act's protections, contrary to Congress' express intention categorically to include "professional employees."
The NLRB has recognized and endeavored to cope with the tension between the Act's exclusion of supervisors and its inclusion of professional employees. See, e.g., Northcrest Nursing Home, 313 N. L. R. B. No. 54, p. 2 (1993). To harmonize the two prescriptions, the Board has properly focused on the policies that motivated Congress to exclude supervisors. Accounting for the exclusion of supervisors, the Act's drafters emphasized that employers must have the "undivided loyalty" of those persons, "traditionally regarded as part of management," on whom they have bestowed "such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action." See Senate Report, at 409-411 (quoted in Northcrest Nursing Home, 313 N. L. R. B. No.54, p. 1). Accordingly, the NLRB classifies as supervisors individuals who use independent judgment in the exercise of managerial or disciplinary authority over other employees. Id., at 3-4. But because professional employees often are not in management's "front line," the "undivided loyalty" concern is somewhat less urgent for this class of workers. The Board has therefore determined that the exercise of professional judgment "to assign and direct other employees in the interest of providing high quality and efficient service" does not, by itself, "confer supervisory status." Id., at 4.
The NLRB has essayed this exposition of its inquiry:
"In determining the existence of supervisory status, the Board must first determine whether the individual possesses any of the 12 indicia of supervisory authority and, if so, whether the exercise of that authority entails `independent judgment' or is `merely routine.' If the individual independently exercises supervisory authority, the Board must then determine if that authority is exercised `in the interest of the employer.' " Id., at 3.
As applied to the health care field, the Board has reasoned that to fit the formulation "in the interest of the employer," the nurse's superintendence of others must reflect key managerial authority, and not simply control attributable to the nurse's "professional or technical status," direction incidental to "sound patient care." Id., at 3, 6. Cf. Children's Habilitation Center, Inc. v. NLRB, 887 F. 2d 130, 134 (CA7 1989) (Posner, J.) (authority does not fit within the "interest of the employer" category if it is "exercised in accordance with professional rather than business norms," i.e., in accordance with "professional standards rather than . . . the company's profit maximizing objectives").
The NLRB's "patient care analysis" is not a rudderless rule for nurses, but an application of the approach the Board has pursued in other contexts. The Board has employed the distinction between authority arising from professional knowledge, on one hand, and authority encompassing front line management prerogatives, on the other, to resolve cases concerning the supervisory status of, for example, doctors, [n.6] faculty members, [n.7] pharmacists, [n.8] librarians, [n.9] social workers, [n.10] lawyers, [n.11] television station directors, [n.12] and, as this Court has noted, architects and engineers. See NLRB v. Yeshiva University, 444 U.S. 672, 690, n. 30 (1980) (citing cases). Indicating approval of the NLRB's general approach to the Act's coverage of professionals, the Court stated in Yeshiva:
"The Board has recognized that employees whose decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty. Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management. We think these decisions accurately capture the intent of Congress. . . ." Id., at 690 (footnote omitted).
Notably, in determining whether, in a concrete case, nurses are supervisors within the meaning of the Act, the Board has drawn particularly upon its decisions in "leadperson" controversies. "Leadpersons" include skilled employees who do not qualify as statutory "professionals," but, like professional employees, have some authority to assign or direct other workers. In leadperson cases, as in cases involving professionals, the NLRB has distinguished between authority that derives from superior skill or experience, and authority that "flows from management and tends to identify or associate a worker with management." Southern Bleacher & Print Works, Inc., 115 N. L. R. B. 787, 791 (1956), enforced, 257 F. 2d 235, 239 (CA4 1958); cf. Northcrest Nursing Home, 313 N. L. R. B. No. 54, pp. 4-5 (drawing the analogy between leadpersons and charge nurses in hospitals and nursing homes). Differentiating the role of front line managers from that of leadperson, the Board has placed some nurses, because of the level of their authority, in the supervisor category, while ranking others, as in this case, in a professional (or technical), but not supervisor class. See cases cited in id., at 8, n. 36.
Following the pattern revealed in NLRB decisions, the administrative law judge, affirmed by the Board, determined that the four licensed practical nurses in this case were not supervisors. The ALJ closely examined the organization and operation of nursing care at Heartland and found the nurses' direction of aides "closely akin to the kind of directing done by leadmen or straw bosses, persons . . . Congress plainly considered to be `employees.' " 306 N. L. R. B., at 70. Backing up this finding, the ALJ pointed out that, although the nurses "g[a]ve orders (of certain kinds) to aides, and theaides follow[ed] those orders," id., at 72, the nurses "spen[t] only a small fraction of their time exercising that authority." Id., at 69. Essentially, the nurses labored "to ensure that the needs of the residents [were] met," and to that end, they "check[ed] for changes in the health of the residents, administer[ed] medicine, . . . receive[d] status reports from the nurses they relieve[d], and g[a]ve [such] reports to aides coming on duty and to the nurses' reliefs," pinch hit for aides in "bathing, feeding or dressing residents," and "handle[d] incoming telephone calls from physicians and from relatives of residents who want[ed] information about a resident's condition." Ibid.
The ALJ noted, too, that "when setting up the aide resident assignments," the nurses "followed old patterns"; indeed, "the nurses routinely let the aides decide among themselves which aide was to cover which residents." Id., at 70. The administrator and the director of nursing were "always on call" and nurses in fact called them at their homes "when non routine matters ar[o]se." Id., at 72.
Throughout the hearing, the ALJ reported, he gained "the impression that Heartland's administrator believed that the nurses' views about anything other than hands on care of the residents were not worth considering." Ibid.. "[T]he actions of Heartland's administrator," the ALJ concluded, repeatedly and unmistakably demonstrated that "to [Heartland's] management, Heartland's nurses were just hired hands." Ibid. I see no tenable basis for rejecting the ALJ's ultimate ruling that the nurses' jobs did not entail genuine, front line supervisorystatus of the kind that would exclude them from the Act's protection.
The phrase ultimately limiting the §2(11) classification "supervisor" is, as the Court recognizes, "in the interest of the employer." To give that phrase meaning as a discrete and potent limitation, the Board has construed it, in diverse contexts, to convey more than the obligation all employees have to further the employer's business interests, indeed more than the authority to assign and direct other employees pursuant to relevant professional standards. See, e.g., Northcrest Nursing Home, 313 N. L. R. B. No. 54 (1993) (nurses); Youth Guidance Center, 263 N. L. R. B. 1330, 1335, and n. 23 (1982) (social workers); Sav On Drugs, Inc., 243 N. L. R. B. 859, 862 (1979) (pharmacists); Neighborhood Legal Services, Inc., 236 N. L. R. B. 1269, 1273, and n. 9 (1978) (attorneys). [n.13] It is a defining task of management to formulate and execute labor policies for the shop; correspondingly, the persons charged with superintending management policy regarding labor are the "supervisors" who, in the Board's view, act "in the interest of the employer."
Maintaining professional standards of course serves the interest of an enterprise, and the NLRB is hardly blind to that obvious point. See Northcrest Nursing Home, 313 N. L. R. B. No. 54, p. 4 (interest of employer and employees not likely to diverge on charge nurse decisions concerning methods of attending to patients' needs). But "the interest of the employer" may well tug against that of employees, on matters such as "hiring, firing, discharging, and fixing pay"; "in the interest of the employer," persons with authority regarding "things of that sort" are properly ranked "supervisor." [n.14]
The Court does not deny that the phrase "in the interest of the employer" was intended to limit, not to expand, the category "supervisor." [n.15] Yet the readingthe Court gives to the phrase allows it to provide only one example of workers who would not fit the description: "The language ensures . . . that union stewards who adjust grievances are not considered supervisory employees and deprived of the Act's protections." Ante, at 8. Section 2(11)'s expression, "in the interest of the employer," however, modifies all 12 of the listed supervisory activities, not just the adjustment of grievances. Tellingly, the single example the Court gives, "union stewards who adjust grievances," rests on the very distinction the Board has endeavored to apply in all quarters of the workplace: one between "management" interests peculiar to the employer, and the sometimes conflicting interests of employees. [n.16]
Congress adopted the supervisor exclusion to bind to management those persons "vested with . . . genuine management prerogatives," Senate Report, at 4, Legislative History 410, i.e., those with the authority and duty to act specifically "in the interest of the employer" on matters as to which management and labor interests may divide. The Board has been faithful to the task Congress gave it, I believe, in distinguishing the employer's hallmark managerial interest--its interest regarding labor management relations--from the general interest of the enterprise, shared by its professional and technical employees, in providing high quality service.
In rejecting the Board's approach, the Court relies heavily on NLRB v. Yeshiva University, 444 U.S. 672 (1980). The heavy weight placed on Yeshiva is puzzling, for the Court in that case noted with approval the Board's decisions differentiating professional team leaders (or "project captains") from "supervisors." Such leaders are "employees," not "supervisors," the Board held, and the Court agreed, "despite [their] substantial planning responsibility and authority to direct and evaluate team members." Id., at 690, n. 30. "In the health care context," specifically, the Court in Yeshiva observed, "the Board asks in each case whether the decisions alleged to be managerial or supervisory are `incidental to' or `in addition to' the treatment of patients." That approach, the Court said in Yeshiva, "accurately capture[d] the intent of Congress." Id., at 690.
The Court today also expresses doubt whether "the statute permits consideration of the potential of divided loyalties." Ante, at 9 (implying that consideration of thispotential would entail a "unique interpretation [of the statute] . . . in the health care field"). But again, Yeshiva points the other way. The Court's opinion in Yeshiva acknowledged that the Act's exclusion of supervisors "grow[s] out of the . . . concern . . . [t]hat an employer is entitled to the undivided loyalty of its representatives." 444 U. S., at 682. The Court decided that the Yeshiva University faculty members were not entitled to the Act's protection, precisely because their role as "representative" of the employer presented a grave danger of divided loyalties. The Yeshiva faculty, the Court stated, was pivotal in defining and implementing the employer's managerial interests; its "authority in academic matters [wa]s absolute," and it "determine[d] . . . the product to be produced, the terms upon which it will be offered, and the customers who will be served." Id., at 686. No plausible equation can be made between the self governing Yeshiva faculty, on one hand, and on the other, the licensed practical nurses involved in this case, with their limited authority to assign and direct the work of nurses' aides, pursuant to professional standards.
The Court's opinion has implications far beyond the nurses involved in this case. If any person who may use independent judgment to assign tasks to others or direct their work is a supervisor, then few professionals employed by organizations subject to the Act will receive its protections. [n.17] The Board's endeavor to reconcile theinclusion of professionals with the exclusion of supervisors, in my view, is not just "rational and consistent with the Act," NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 796 (1990); it is required by the Act. I would therefore reverse the contrary judgment of the Court of Appeals.
1 See §152(12) (defining "professional employee"); §159(b) (limiting Board's discretion to place professional and nonprofessional employees in the same bargaining unit).
2 The definition of "professional employee" further includes persons who have completed the required course of study and are "performing related work under the supervision of a professional person" in order finally to qualify as a professional. §152(12)(b).
3 Section 2(11) of the Act defines a "supervisor" 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 responsibly to direct them, 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 judgment." 29 U.S.C. § 152(11). Section 2(3) provides, in part, that "[t]he term `employee' . . . shall not include . . . any individual employed as a supervisor." §152(3).
4 The House and Senate bills defined the term "supervisor" differently; the Conference Committee adopted the Senate version. See H. Conf. Rep. No. 510, 80th Cong., 1st Sess., 35 (1947), reprinted in 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, p. 539 (1948) (hereinafter Legislative History).
5 "The term `professional employee' means--
"(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or
"(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a)."
6 See The Door, 297 N. L. R. B. 601, 602, n. 7 (1990) ("routine direction of employees based on a higher level of skill or experience is not evidence of supervisory status").
7 See Detroit College of Business, 296 N. L. R. B. 318, 320 (1989), (professional employees " `[f]requently require the ancillary services of nonprofessional employees in order to carry out their professional, not supervisory, responsibilities,' " but "it was not Congress' intention to exclude them from the Act `by the rote application of the statute without any reference to its purpose or the individual's place on the labor management spectrum' "), quoting New York Univ., 221 N. L. R. B. 1148, 1156 (1975).
8 See Sav On Drugs, Inc., 243 N. L. R. B. 859, 862 (1979) ("pharmacy managers do exercise discretion and judgment" in assigning and directing clerks, but "such exercise . . . falls clearly within the ambit of their professional responsibilities, and does not constitute the exercise of supervisory authority in the interest of the Employer").
9 See Marymount College of Virginia, 280 N. L. R. B. 486, 489 (1986) (rejecting classification of catalog librarian as a statutory supervisor, although librarian's authority over technician's work included "encouraging productivity, reviewing work for typographical errors, and providing answers to the technician's questions based on the catalog librarian's professional knowledge").
10 See Youth Guidance Center, 263 N. L. R. B. 1330, 1335, and n. 23 (1982) ("senior supervising social workers" and "supervising social workers" not statutory supervisors; "[t]he Board has carefully and consistently avoided applying the statutory definition of `supervisor' to professionals who give direction to other employees in the exercise of professional judgment which is incidental to the professional's treatment of patients and thus is not the exercise of supervisoryauthority in the interest of the employer").
11 See Neighborhood Legal Services, Inc., 236 N. L. R. B. 1269, 1273 (1978): "[T]o the extent that the [attorneys in question] train, assign, or direct work of legal assistants and paralegals for whom they are professionally responsible, we do not find the exercise of such authority to confer supervisory status within the meaning of Section 2(11) of the Act, but rather to be an incident of their professional responsibilities as attorneys and thereby as officers of the court." The Board continued: "[W]e are careful to avoid applying the definition of `supervisor' to professionals who direct other employees in the exercise of their professional judgment, which direction is incidental to the practice of their profession, and thus is not the exercise of supervisory authority in the interest of the Employer." Id., at 1273, n. 9.
12 See Golden West Broadcasters KTLA, 215 N. L. R. B. 760, 762, n. 4 (1974): "[A]n employee with special expertise or training who directs or instructs another in the proper performance of his work for which the former is professionally responsible is not thereby rendered a supervisor. . . . This is so even when the more senior or more expert employee exercises some independent discretion where, as here, such discretion is based upon special competence or upon specific articulated employer policies."
13 The Board, as the decisions cited in text demonstrate, takes no unique approach in cases involving nurses. See also cases cited, supra, at 8-9, and nn. 6-7, 9, 12. Nor, contrary to the Court's report, see ante, at 2, did counsel for the NLRB admit to deviant interpretation of the phrase, "interest of the employer," in nurses' cases. When asked whether "[i]t is uniquely nurses" who do not act "in the interest of the employer" when attending to "the needs of the customer," counsel replied, "No, it is not uniquely nurses." Tr. of Oral Arg. 52. While counsel continued, when pressed, to say that "[t]he Board has not applied a theory that's phrased in the same terms to other categories of professionals," ibid., counsel appears to have been referring to the precisely particularized, "patient care" version of the inquiry. Counsel added: "What the Board has done is draw an analogy between . . . what nurses do and what other minor supervisory employees do. . . . [T]he Board's rule in this case is fully consistent with the traditional rule that it has applied." Id., at 53.
14 See 92 Cong. Rec. 5930 (1946), containing the statement of Representative Case on a forerunner of present §2(11), included as part of the Case bill, passed by Congress, but vetoed by President Truman in 1946. Representative Case stated of the bill's provision, nearly identical to the present §2(11): " `In the interest of the employer'--that is the key phrase to keep in mind. . . . All that the section on supervisory employees does is to say that if `in the interest of the employer,' [a] person has a primary responsibility in hiring, firing, discharging, and fixing pay, and things of that sort, then at the bargaining table he shall not sit on the side of the employee, but shall sit on the side of the employer. . . . No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here."
15 The Court does maintain, however, that Congress meant to embrace our statement in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), that "[e]very employee, from the very fact of employment in the master's business, is required to act in his interest." Id., at 488; see ante, at 6-7. But Congress' purpose, in enacting §2(11), was to overturn the Court's holding in Packard Motor Car. Thus it is more likely that Congress was taken byJustice Douglas' dissenting view that "acting in the interest of the employer" fits employees who act for management "not only in formulating but also in executing its labor policies." 330 U. S., at 496. Moreover, Congress had included the phrase, "in the interest of the employer," the year before Packard Motor Car, in a predecessor bill to the Labor Management Relations Act that defined the term "supervisor" almost identically. See n. 14, supra. Finally, the Court acknowledged in Packard Motor Car that the phrase "interest of the employer" may also be read more narrowly, in contradistinction to employees' interests in improving their compensation and working conditions. 330 U. S., at 489, 490. Packard Motor Car, then, does not support the conclusion that the words, "interest of the employer," have a plain meaning inconsistent with the interpretation the Board has given them in supervisor cases.
16 The Court suggests that the Board has "rea[d] the responsible direction portion of §2(11) out of the statute in nurse cases." Ante, at 8 (referring to the words "responsibly to direct" in §2(11)'s list of supervisory activities). The author of the amendment that inserted those words explained, however, that persons having authority "responsibly to direct" other employees are persons with "essential managerial duties" who rank "above the grade of `straw bosses, lead men, set up men, and other minor supervisory employees,' as enumerated in the [Senate] report." 93 Cong. Rec. 4804 (1947) (remarks of Sen. Flanders), Legislative History 1303. As explained above, the Board has used this same analogy to straw bosses andleadpersons to determine whether particular nurses are supervisors. See supra, at 10.
17 As the Board repeatedly warned in its presentations to this Court: "If all it took to be a statutory supervisor were a showing that an employee gives discretionary direction to an aide, even though done pursuant to the customary norms of the profession, the coverage of professionals would be a virtual nullity." Brief for the National Labor Relations Board 27; see also id., at 12, Reply Brief for the National Labor Relations Board 7-8.