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In the Supreme Court of the United States
NATIONAL LABOR RELATIONS BOARD, PETITIONER
KENTUCKY RIVER COMMUNITY CARE, INC., ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPLY BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
SETH P. WAXMAN
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
LEONARD R. PAGE
Acting General Counsel
National Labor Relations
Washington, D.C. 20570
In the Supreme Court of the United States
NATIONAL LABOR RELATIONS BOARD, PETITIONER
KENTUCKY RIVER COMMUNITY CARE, INC., ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPLY BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
1. The principal issue in this case is the reasonableness of the interpretation
that the National Labor Relations Board (NLRB or Board) has given the phrase
"independent judgment" in Section 2(11) of the National Labor
Relations Act (NLRA or Act), 29 U.S.C. 152(11). As we explain in our opening
brief, under the Board's interpretation, an employee does not exercise "independent
judgment" that triggers supervisory status under Section 2(11) when
he uses ordinary professional or technical judgment in directing less-skilled
employees to deliver services in accordance with employer-specified standards.
NLRB Br. 11. The Board has applied that analysis over many years to both
professional and non-professional employees in various employment contexts.
Id. at 16-20. And, since this Court's decision in NLRB v. Health Care &
Retirement Corp. of America (HCR), 511 U.S. 571 (1994), the Board has applied
the traditional analysis in the health care field. NLRB Br. 21.
Respondent's primary contentions are that the Board's interpretation of
"independent judgment" creates a false dichotomy between professional
judgment and independent judgment (Br. 9-13), eliminates professionals as
supervisors (Br. 17-21), and precludes supervisory status based on responsible
direction of other employees (Br. 13-16). There is no merit to any of those
contentions, all of which rest on an inaccurate characterization of the
a. Respondent erroneously asserts (Br. 10) that, under the Board's interpretation,
"when a professional utilizes 'professional or technical judgment'
in the responsible direction of employees, that person is not using 'independent
judgment.'" Respondent thus asserts that, in the Board's view, the
exercise of "professional judgment" is "always routine"
(Br. 11) and "never involves the exercise of independent judgment"
(Br. 16). Contrary to those assertions, the Board does not take the view
that an employee who uses professional or technical judgment in performing
one of the supervisory duties specified in Section 2(11) cannot also be
exercising "independent judgment." Indeed, in our opening brief,
we identify several cases in which the Board found that professional or
technical employees exercised "independent judgment." NLRB Br.
As we have explained, the Board has long held that whether an employee is
a supervisor depends on the degree of judgment or discretion exercised by
the employee in the performance of any supervisory duty specified in Section
2(11). When an employee, based on professional or technical skill or experience,
exercises limited discretion to direct others in accordance with employer-specified
standards (as expressed in blue-prints, established work procedures, and
the like), the Board has found that the employee does not exercise "independent
judgment" that triggers supervisory status. If, however, an employee
exercises significant discretion to direct others within only general confines,
the Board has found that the employee exercises "independent judgment"
under Section 2(11). See NLRB Br. 16-21 & nn. 5-8. In short, the Board's
interpretation recognizes that an employee's exercise of professional or
technical judgment may also entail the exercise of "independent judgment"
if the employee's judgment is not significantly constrained by external
sources. The constraints may flow from a variety of sources, including written
employer standards and established professional or technical routines or
work procedures, but whether the employee exercises "independent judgment"
turns on the extent of his discretion.2
Amicus Society for Human Resource Management (SHRM) acknowledges (Br. 19
n.30) that "an employer may, in certain instances, so hamstring the
exercise of a would-be supervisor's judgment so as to prevent the exercise
of 'independent' judgment," but contends that "the facts of this
case do not demonstrate any 'employer-specified standards' that so constrained
the exercise of supervisory judgment." If, by "hamstring,"
SHRM means impose limitations so strict as to leave the employee no room
for thought (see Beverly Enters., Va., Inc. v. NLRB, 165 F.3d 290, 303 (4th
Cir. 1999) (en banc) (Phillips, J., dissenting)), we agree that respondent
did not confine the judgment of the registered nurses (RNs) in this case
to that extent. The Board, however, has properly rejected the view that
an employee is a supervisor whenever he exercises some judgment in directing
other employees, because that view is not supported by the language or purpose
of the Act. See NLRB Br. 22-32. The relevant inquiry under the Board's interpretation
of "independent judgment" is the degree to which the employee's
judgment is limited, and the facts of this case show that respondent significantly
restricted the RNs' discretion. See id. at 42-45.
SHRM is also mistaken in contending (Br. 19 n.30) that the Board has, in
practice, applied its interpretation to find that nurses do not exercise
"independent judgment" even absent external constraints on their
discretion. In the cases cited by SHRM (ibid.) in support of that contention,
the discretion of the employees at issue was in fact limited by external
constraints, such as employer standards, patient care plans, and professional
routines.3 Other cases since HCR in which the Board has found employees
not to be supervisors have involved similar constraints.4
b. A proper understanding of the Board's interpretation of "independent
judgment" reveals that there is no basis for respondent's assertion
(Br. 18) that the interpretation "will virtually eliminate professionals
as supervisors." Under the Board's interpretation, a nurse or other
professional (just like any other employee) may be found to be a supervisor
if she performs one of the listed supervisory functions with sufficient
discretion to constitute independent judgment. See, e.g., Health Care &
Retirement Corp., 328 N.L.R.B. No. 156, 1999 WL 562096, *2 (July 27, 1999)
(nurses found to be supervisors because they "exercise independent
judgment when disciplining [aides], for example, by determining what category
to classify a given infraction of the Employer's rules and to take the appropriate
action"); Legal Aid Soc'y of Alameda County, 324 N.L.R.B. 796, 796
(1997) (attorney found to be supervisor because she possessed independent
"authority to evaluate and effectively recommend retention and termination
of the paralegals in her unit").
Although the Board's approach does not eliminate professionals as supervisors,
the approach advocated by respondent would exclude most professional employees
from the rights and protections of the Act. Respondent contends (Br. 11)
that a "professional['s] exercise [of] discretion and judgment"
(which is inherent in his status as a professional under the Act, 29 U.S.C.
152(12)(a)(ii)) "is the essence of independent judgment." Thus,
in respondent's view, professionals exercise Section 2(11) "independent
judgment" whenever they assign or direct other employees. See also
Resp. Br. 20 & n.6. If, as respondent contends, a professional necessarily
exercises "independent judgment" whenever he gives any direction
to less-skilled employees, then the Act's express coverage of professionals
would effectively be nullified because most professionals work with assistants.5
As we have explained (NLRB Br. 32-33), when Congress decided to cover professional
employees, it was aware that most of them routinely work with assistants.
H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 36 (1947). Congress therefore
could not have intended that this fact would suffice to prevent the coverage
of "professional groups such as * * * nurses" provided for in
Section 2(12). S. Rep. No. 105, 80th Cong., 1st Sess. 19 (1947).
c. Respondent also errs in contending (Br. 14) that the Board's interpretation
of "independent judgment" renders meaningless Section 2(11)'s
provision that an employee may be a supervisor by virtue of his authority
"responsibly to direct" other employees. Contrary to respondent's
contention, nothing about the Board's interpretation dictates that "only
a nurse who performs * * * functions other than responsibly directing employees,
can qualify as a supervisor." Ibid. Indeed, because the "independent
judgment" requirement (and the Board's interpretation of that requirement)
applies with equal force whichever supervisory function the employee exercises,
it is difficult to understand why the interpretation would preclude supervisory
status based on one function but not others.
In practice, of course, "an employee who exercises independent judgment
* * * in directing other employees is likely to have been delegated substantial
[other] authority by the employer to carry out directions to those employees."
Providence Hosp., 320 N.L.R.B. at 728 n.25. Because an employee's status
as a supervisor is sometimes more clearly established based on that other
authority, the Board has frequently found it unnecessary to reach the question
whether the employee is a supervisor because he also exercises independent
judgment in responsibly directing other employees.6 See, e.g., Westwood
Health Care Ctr., 330 N.L.R.B. No. 141, 2000 WL 309119, *6 & n.11 (Mar.
20, 2000) (unnecessary to decide "whether [nurses] had the authority
under Sec. 2(11) to responsibly direct other employees" given finding
that they possessed "authority to discipline employees within the meaning
of Section 2(11)"); Venture Indus., Inc., 327 N.L.R.B. No. 165, 1999
WL 161049, *3 & n.11 (Mar. 19, 1999) (unnecessary to decide whether
supervisors "also have the authority to assign and direct work and
effectively recommend the discharge of employees" given finding that
they "possess supervisory authority within the meaning of Section 2(11)
of the Act to discipline employees and to make effective recommendations
regarding" hiring). That the Board often rests its findings of supervisory
status on other grounds does not, however, mean that employees cannot be
classed as supervisors based on authority responsibly to direct other employees.
On the contrary, the Board has on several occasions found employees to be
supervisors based on responsible direction. See NLRB Br. 19 n.7.7
Respondent further errs in asserting (Br. 14-16) that the Board's interpretation
of "independent judgment" is inconsistent with comments made by
Senator Flanders when he proposed adding the term "responsibly to direct"
to the Act. Senator Flanders explained that his amendment brought within
the supervisory category persons "above the grade of 'straw bosses,
lead men, set-up men, and other minor supervisory employees,' as enumerated
in the [Senate Committee] report," who, although lacking authority
to make "effective" changes in the status of subordinate employees,
are vested with substantial "managerial duties." 93 Cong. Rec.
4677-4678 (1947) (emphasis added). Senator Flanders gave no indication that
he intended the amendment also to bring within the supervisory category
the "minor supervisory employees" who, consistent with the Board's
administration of the Wagner Act, were excluded from the Senate Committee's
definition of supervisor, despite the fact that they, in addition to performing
their own work, provided limited direction for others based on technical
skills or employer-specified standards. See S. Rep. No. 105, supra, at 4;
NLRB Br. 24-32.
Senator Flanders wanted to clarify that the definition of supervisor includes
an individual in charge of a "department" who does no hands-on
work but, using "personal judgment[,] * * * determines under general
orders what job shall be undertaken next and who shall do it." 93 Cong.
Rec. at 4677-4678. Those responsibilities are similar to the duties of the
industrial "foremen" in the Packard case, which Congress sought
to overrule by enacting Section 2(11). See Packard Motor Car Co., 61 N.L.R.B.
4, 22-23, further decision, 64 N.L.R.B. 1212 (1945), enforced, 157 F.2d
80 (6th Cir. 1946), aff'd, 330 U.S. 485 (1947). The duties of the RNs in
this case are not comparable to those of foremen; rather, the RNs perform
hands-on medical treatment and give limited direction to other members of
their teams, based on their experience and special competence, pursuant
to the requirements of the residents' treatment plans. See NLRB Br. 42-43.8
d. As a final argument against the Board's interpretation of "independent
judgment," respondent contends (Br. 21) that the interpretation is
not entitled to deference because the Board "has engaged in blatant
manipulation of the statute to further policy." Contrary to that contention,
the Board has attempted to give concrete meaning to the term "independent
judgment", which this Court has described as "ambiguous."
See HCR, 511 U.S. at 579. As we have explained above and in our opening
brief, the Board's interpretation is longstanding, widely applied, and fully
consistent with the language, structure, and purpose of the NLRA. Moreover,
the very reason that this Court accords "considerable deference"
(NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990)) to
the Board's interpretations of the Act is that the Board has been charged
by Congress with the "often difficult and delicate responsibility"
"to effectuate national labor policy." NLRB v. Truck Drivers Local
Union No. 449, 353 U.S. 87, 96 (1957). See also Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) ("The power of an
administrative agency to administer a congressionally created . . . program
necessarily requires the formulation of policy and the making of rules to
fill any gap left, implicitly or explicitly, by Congress."). There
is no cause to second guess the Board's implementation of that responsibility
2. The second question presented by this case is whether the Board permissibly
requires the party who alleges that an employee is a supervisor to prove
the individual's supervisory status. Respondent contends (Br. 24-26) that
the Board's General Counsel should bear the burden of proving that the individual
is not a supervisor. Respondent reasons (Br. 24-25) that "proving that
a particular individual is an 'employee' is an element of the claim against
the employer" in an unfair labor practice case under Section 8(a) of
the Act, 29 U.S.C. 158(a). From that premise, respondent asserts (Br. 25)
that "[b]ecause the term 'employee' is defined by the Act to exclude
supervisors * * * the distinction between 'employees' and 'supervisors'
is an element of the Board's case." Respondent's conclusion does not
follow from its premise, however, because the question whether an individual
is an "employee" under the Act is separate from, and does not
depend on, the question whether that individual is a "supervisor."
As this Court has explained, the definition of "employee" in Section
2(3) of the Act, 29 U.S.C. 152(3), "seems to reiterate the breadth
of the ordinary dictionary definition." NLRB v. Town & Country
Elec., Inc., 516 U.S. 85, 90 (1995). Thus, "employee" encompasses
any "person who works for another in return for financial or other
compensation." Ibid. (quoting American Heritage Dictionary of the English
Language 604 (3d ed. 1992)). In an unfair labor practice case, the Board's
General Counsel bears the burden of proving that the individuals seeking
relief are "employees" in that sense, to the extent that the issue
is in controversy (and was not litigated in an antecedent representation
proceeding (see NLRB Br. 41; pp. 14-15, infra)).10
Whether such "employees" are "supervisors," however,
is a separate question. The answer to that question does not depend on,
and is analytically distinct from, whether they are "employees."
See New York Univ. Med. Ctr. v. NLRB, 156 F.3d 405, 413 (2d Cir. 1998) (explaining
that the Board had carried its burden of proving that the disputed individuals
"are employees of NYU Medical Center," but "they may or may
not also be supervisors," a status that the employer bears "the
burden of establishing"). As we have explained (NLRB Br. 38), the text
of Section 2(3) casts "any individual employed as a supervisor"
as an exception from the broad definition of "employee." See Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 891 (1984); see also Town & Country Elec.,
516 U.S. at 90 (noting that the Act's definition of employee "contains
a list of exceptions"). If an "employee" is also a "supervisor,"
then the prohibitions against unfair labor practices contained in Section
8(a), which would otherwise constrain the employer, do not apply. Accordingly,
if the employer contends that individuals shown by the General Counsel to
be "employees" are also "supervisors," the employer
properly should bear the burden of proving that claim. As this Court has
explained, "the general rule of statutory construction [is] that the
burden of proving justification or exemption under a special exception to
the prohibitions of a statute generally rests on one who claims its benefits."
FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948).11 See also NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393 (1983) (Board can require employer to prove a
fact that Board reasonably construes as an affirmative defense to an unfair
labor practice charge).
Amicus American Health Care Association (AHCA) mistakenly contends (Br.
7-10) that construing supervisory status as an affirmative defense in an
unfair labor practice case and placing the burden of proving that status
on the employer is not consistent with Director, Office of Workers' Compensation
Programs v. Greenwich Collieries, 512 U.S. 267 (1994). In Greenwich Collieries,
id. at 276-278, the Court explained that the Board's allocation of the burden
of proof in Transportation Management was permissible because "the
NLRB first required the employee to persuade it that antiunion sentiment
contributed to the employer's decision," and "[o]nly then did
the NLRB place the burden of persuasion on the employer as to its affirmative
defense" that it would have fired the employee for permissible reasons
in any event. Likewise, in an unfair labor practice case, the employer is
required to bear the burden of proving that individuals are supervisors
only after the General Counsel has proved that the individuals are "employees"
as defined in Town & Country (if that question is in dispute). See New
York Univ. Med. Ctr., supra. Placing the burden of proving supervisory status
on the employer in those circumstances is fully consistent with Greenwich
AHCA also errs in contending (Br. 22) that, even when (as in this case)
the supervisory issue has already been resolved in a representation proceeding,
the same issue must be redetermined if the employer precipitates an unfair
labor practice proceeding by refusing to bargain with the certified union.
That contention-which would tend to prolong labor disputes, contrary to
the Act's basic purpose-ignores the settled principle that, in the absence
of newly discovered evidence or special circumstances, the General Counsel
is not required to relitigate matters already decided in the underlying
representation case. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941); see also NLRB Br. 41. Although AHCA seeks to avoid the force
of that rule by suggesting (Br. 22) that a purported "lack of procedural
safeguards" casts doubt as to whether "supervisory status is ever
truly 'litigated'" in representation cases, that suggestion is without
basis.12 Moreover, even if relitigation of matters already decided in representation
cases were required, the Board's General Counsel would not bear the burden
of proving supervisory status in that relitigation, for the reasons we have
explained above. See pp. 12-14, supra.
3. a. In our opening brief, we explain that the Board, applying its interpretation
of "independent judgment" and the proper allocation of the burden
of the proof, reasonably concluded that respondent's RNs are not "supervisors."
See NLRB Br. 42-48. Respondent, however, contends (Br. 28-36) that the RNs
are supervisors even under the Board's interpretation of "independent
judgment." That contention rests primarily on job duties that the RNs
purportedly perform in their capacity as "building supervisors."
See, e.g., Resp. Br. 28, 30. Respondent's contention is not supported by
the record and fails to take into account that respondent bears the burden
of proving the RNs' supervisory status.13
Respondent asserts (Br. 35) that the building supervisors "visit the
units to check the coverage and, if necessary, determine in their judgment
which employees to move from one unit to another." But the record evidence
that respondent cites (Br. 3, 35) does not demonstrate that the building
supervisors exercise any such judgment. See J.A. 18-19, 63; Tr. 147, 155.
To the contrary, respondent's staffing policies specify the minimum number
of employees necessary to cover a given shift. J.A. 23-24, 28-29. The building
supervisors transfer employees from one unit to another simply "[t]o
make sure the head count is there." J.A. 29; see J.A. 22, 27. The record
does not establish the basis on which the building supervisors select the
Respondent also claims (Br. 35) that the building supervisors have authority
to "increase the staffing level by arranging coverage from the preceding
shift and/or by calling off-duty employees" in the event that "a
problem arises with a resident or in the case of weather emergencies."
That contention, however, is factually incorrect. The record establishes
that the nurses do not have independent discretion to staff the facility
at a higher level than prescribed by respondent. See J.A. 22, 23-24, 27-29.
Neither the Board nor the court of appeals found otherwise, and the evidence
cited by respondent does not support respondent's claim.14 There is also
no support for respondent's assertion (without citation to the record) (Br.
28) that the building supervisors "assign overtime." Indeed, the
Board made, and the court of appeals accepted, the contrary finding that
they do not have authority to compel employees to work. Pet. App. 16a, 51a;
see J.A. 38. As we have explained, the building supervisors' actual responsibilities
regarding staff coverage are routine and do not involve the exercise of
independent judgment. See NLRB Br. 44-45.
Respondent further asserts (Br. 35) that the building supervisors "are
responsible for overseeing all safety and resident issues that occur."
However, the testimony on which respondent relies (J.A. 16-17) does not
indicate which (if any) of the supervisory functions listed in Section 2(11)
the building supervisors exercise, using independent judgment, in discharging
this purported function. Indeed, the court of appeals did not rely on that
responsibility to support its (mistaken) holding that the RNs are supervisors.
See Pet. App. 18a-19a.
Finally, respondent relies (Br. 35) on the purported authority of the building
supervisors to "write up employees" and "to send an employee
home" for misconduct. As our opening brief explains, however, the Board
properly concluded that respondent failed to prove that the building supervisors
actually have that authority. See NLRB Br. 46-48. Respondent contends (Br.
40) that, in reaching that conclusion, the Board "disregarded"
several company memoranda and ignored the principle that "[i]t is the
existence of authority that counts under the statute, and not the frequency
of its exercise." The Board, however, adheres to the principle cited
by respondent (see, e.g., DST Indus., Inc., 310 N.L.R.B. 957, 958 (1993)),
and did not "disregard" respondent's memoranda. Rather, the Board
considered the documents but discounted their significance, considered in
light of the full record, under the equally settled principle that "the
nearly total lack of evidence of authority actually exercised" may
negate "naked designations of 'paper power.'" Oil Workers Int'l
Union v. NLRB, 445 F.2d 237, 243-244 (D.C. Cir. 1971), cert. denied, 404
U.S. 1039 (1972). See Capital Transit Co., 114 N.L.R.B. 617, 619 (1955)
("where the issue is the actual existence of a supervisory power, the
absence of any exercise of authority may negative its existence");
NLRB Br. 47-48. Because the record establishes that the building supervisors
never exercised the disciplinary authority ostensibly vested in them by
the memoranda, and because other evidence suggests that they lack such authority,
the Board reasonably declined to find the RNs to be supervisors. See Pet.
App. 50a-52a; J.A. 14-15, 26-27, 31, 38, 55-56; NLRB Br. 47.15
b. Finally, respondent mistakenly contends that the RNs must be classed
as supervisors because they are the most senior employees on site for substantial
periods (Br. 36-38), and there would purportedly be an unreasonable ratio
of supervisors to employees if the RNs are not supervisors (Br. 38-39).
As the Board has explained, "the Act does not state or fairly imply
that the highest ranking employee [on site during] a shift is necessarily
a supervisor, nor does it indicate that a group of individuals must have
supervisory status simply to avoid having a particular ratio of employees
to supervisors that, in the estimation of some tribunal, is 'too high.'"
Beverly Enters.-Ohio, 313 N.L.R.B. 491, 500 (1993). Rather, such "secondary
indicia" are "aid[s] in evaluating the existence of supervisory
status," but are "not substitutes for the statutorily prescribed
powers of Section 2(11)." MDI Commercial Servs., 325 N.L.R.B. 53, 57
(1997). "[U]nless an individual possesses one or more of the statutory
indicia of supervisory status, neither the ratio of supervisors to employees
nor the fact that she may be the sole person in charge at times (nor both
together) can transform her into a statutory supervisor." Beverly Enters.-Ohio,
313 N.L.R.B. at 500. See also NLRB Br. 45-46 & n.21. Because, as we
have shown, the RNs do not exercise any supervisory power listed in Section
2(11) using independent judgment, they are not supervisors.16
In any event, the secondary indicia on which respondent relies are of limited
usefulness in this case. Although the building supervisor "is the highest
ranking employee in the building" for "almost two-thirds of the
day" (Pet. App. 16a, 18a), a stipulated supervisor is "on call"
at those times. Id. at 16a; J.A. 39. The building supervisors contact the
"on call" supervisor when necessary. See J.A. 24, 52, 53. Respondent's
assertion (Br. 39) regarding the ratio of supervisors to employees is also
unpersuasive. Although respondent calculates a ratio of 5% if the RNs are
deemed to be employees, which respondent regards as unrealistically low,
that calculation is flawed.17
* * * * *
For the foregoing reasons, as well as those set forth in our opening brief,
the judgment of the court of appeals should be reversed to the extent that
the court held that the RNs employed by respondent are supervisors.
SETH P. WAXMAN
LEONARD R. PAGE
Acting General Counsel
National Labor Relations
1 Respondent also incorrectly asserts (Br. 9) that the Board's interpretation
is "a disguised attempt to revive the patient care analysis" that
this Court rejected in HCR. As we have explained above, the Board's interpretation
is its long-standing, traditional analysis, which it applies in all employment
contexts and to all types of employees, not just in the health care field
or to nurses. Further, as we explain below, the Board's interpretation turns
on the extent of discretion exercised by the employee whose supervisory
status is in question, not on the purpose for which he exercises that discretion.
2 Respondent suggests (Br. 10-11) that the Board's interpretation is inconsistent
with Avon Convalescent Center, Inc., 200 N.L.R.B. 702 (1972), enforced,
490 F.2d 1384 (6th Cir. 1974), but that case has no precedential value.
Even at the time it was decided, which was during the period when the Board
was applying the "in the interest of the employer" test for determining
the supervisory status of nurses that this Court rejected in HCR, Avon was
not in accord with the run of the Board's decisions in the health-care field.
For that reason, Avon was subsequently overruled. See Beverly Enters.-Ohio,
313 N.L.R.B. 491, 494 n.12 (1993).
3 See Loyalhanna Health Care Assocs., 332 N.L.R.B. No. 86, 2000 WL 1670884,
*3 (Oct. 30, 2000) (nurses oversaw work of aides involving "routine
aspects of patient care" pursuant to "rules and regulations governing
long-term care facilities" and patient "care plans"); Vencor
Hosp.-Los Angeles, 328 N.L.R.B. No. 167, 1999 WL 606678, *2, *5 (Aug. 5,
1999) (nurses exercised only "limited" assignment authority because
assignments were based on patient needs as reflected in the "patient's
plan of care" and "dictated by which team member has the obvious
required skill"; nurses gave directions regarding only "simple
tasks" or the "proper method" for performing recurring procedures);
Providence Hosp., 320 N.L.R.B. 717, 730-733 (1996) (charge nurses' "limited
authority" to assign other RNs was constrained by monthly schedules,
the need to "check with the shift coordinator," and reliance on
the practice of asking for volunteers and using "rotational lists";
their monitoring of the work of other RNs and intervention in "acute
situation[s]" was required by "state practices" and was a
"routine function * * * shared by all RNs"), enforced, 121 F.3d
548 (9th Cir. 1997). Elmhurst Extended Care Facilities, Inc., 329 N.L.R.B.
No. 55, 1999 WL 801516, *3-*4 (Sept. 30, 1999), addressed the different
issue whether nurses who filled out evaluation forms concerning aides "effectively
recommend[ed]" their retention or reward.
4 See, e.g., Carlisle Engineered Products, Inc., 330 N.L.R.B. No. 189, 2000
WL 569474, *1 (Apr. 28, 2000) (processors did not exercise "independent
judgment" in assigning work and directing operators to change duties
because directions were "based on commonsense efficiency and job priorities
set by the Employer"); Tree-Free Fiber Co., 328 N.L.R.B. No. 51, 1999
WL 305507, *7 (May 10, 1999) (team leader's assigning and prioritizing work
for team members was not "marked by independent judgment" but
entailed "routine responses to predictable, recurring work-assignment
issues"); Illinois Veterans Home at Anna L.P., 323 N.L.R.B. 890, 891
(1997) (nurses do not exercise "independent judgment" in assigning
and directing aides when "generally [aides] are assigned to the halls
where they previously had been working to provide continuity in care,"
the tasks performed "are set by a worksheet setting forth the care
plan for each resident," and, "[i]f any special tasks arise during
a shift, * * * the [nurse] will direct whoever is available to perform the
5 Moreover, the notion that all assignment and direction necessarily involves
independent judgment is inconsistent with the realities of the workplace.
See, e.g., Providence Hosp., 320 N.L.R.B. at 732 (noting that "[i]t
does not require much judgment to decide that, if there is one aide, the
aide covers the entire unit, or if there are two aides, the unit is split
6 The Board also has elected "not to develop a full analysis of the
term 'responsibly to direct' in the abstract." Providence Hosp., 320
N.L.R.B. at 729. And, for reasons we have noted (NLRB Br. 21-22 n.9), this
case does not present the issue of the proper interpretation of "responsibly
7 See also, e.g., Gem Urethane Corp., 284 N.L.R.B. 1349, 1349, 1359-1360
(1987) (employee who had "considerable discretionary authority"
over the other employees was a supervisor, but employees whose direction
involved only "routine directions given by a more experienced worker"
and who made assignments and ensured the quality of the product but "operated
within narrow and circumscribed confines" "in accordance with
a work order" prepared by management were not supervisors); Ballou
Brick Co., 277 N.L.R.B. 41, 62 (1985) (employee who, "without consultation
with higher management," assigned other employees to various tasks
and directed "when they should start, and when they should stop * *
* used independent judgment" and was therefore a supervisor), enforcement
denied in part on other grounds, 798 F.2d 339 (8th Cir. 1986).
8 When an employee is vested with significant discretion to direct other
employees within only "general orders," as described by Senator
Flanders, the Board has found that the employee exercises "independent
judgment" that triggers supervisory status. See cases cited at NLRB
Br. 19 n.7 and note 7, supra. Because the Board's approach classes as supervisors
all those who exercise "genuine management prerogatives," S. Rep.
No. 105, supra, at 4, respondent's claim (Br. 16-17) that employers will
be deprived of "loyal supervisors" is unfounded.
9 In an effort to demonstrate that the Board has not applied its interpretation
of "independent judgment" consistently, respondent cites (Br.
23) five Board decisions. Two of those decisions have been overruled, and
the other three cases are fully consistent with the Board's current interpretation
of independent judgment. In Great American Products, 312 N.L.R.B. 962 (1993),
the employee found to be a supervisor "assigned work, issued oral warnings,
transferred employees among machines and to other departments, granted time
off, and effectively recommended that employees be tried in other departments."
Id. at 962. The Board expressly affirmed the ALJ's determination that the
employee "exercised independent judgment in the performance of those
functions" and "[was] not just a skilled leadman." Ibid.
That determination was based in part on evidence that the employee in question
authorized another employee to take time off without consulting other management.
Id. at 964. In Clark & Wilkins Industries, Inc., 290 N.L.R.B. 106 (1988),
aff'd, 887 F.2d 308 (D.C. Cir. 1989), cert. denied, 495 U.S. 934 (1990),
the employee found to be a supervisor "decide[d] when other employees
[were] to work at the site and the work they [were] to perform" and
had "authority to change the work employees [were] doing * * * without
prior consultation with [other management]." Id. at 109. Finally, in
National Living Centers, Inc., 193 N.L.R.B. 638, 639 (1971), enforced, 462
F.2d 575 (5th Cir. 1972) (Table), the employee found to be a supervisor
had "discretionary" authority to "grant time off" and
"effectively recommend[ed] discharges and transfers."
10 It is evident from the record that the registered nurses at issue in
this case meet this definition of "employee," and their status
has not been challenged by respondent. Cf., e.g., WBAI Pacifica Found.,
328 N.L.R.B. No. 179, 1999 WL 676522, *6 (Aug. 26, 1999) (finding certain
unpaid staff workers not "employees" under Section 2(3)).
11 Amicus American Health Care Association seeks to avoid the force of that
principle by contending (Br. 16), based on the legislative history of Section
2(11), that "'supervisory status' is not an exemption from the Act,
but an additional protected classification under the Act." But neither
that history nor the statutory text supports its contention. Moreover, if
Congress had wished to depart from the long-standing rule of statutory construction
reiterated in Morton Salt, Congress could have provided a different allocation
rule in the text of the Act, but it did not.
12 AHCA complains (Br. 21) that the Regional Director, rather than the hearing
officer who "hears the evidence[,] * * * make[s] de facto credibility
determinations insofar as he resolves testimonial conflicts by finding the
facts to be as one side or the other posits." However, it is settled
that due process does not require that "the decider must actually hear
the witnesses or be furnished a report on their credibility" in Board
representation proceedings. Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129,
132-134 (2d Cir.), cert. denied, 389 U.S. 839 (1967).
13 To the extent respondent's claim that the RNs are supervisors is premised
on their direction of other employees (Br. 36), we have already explained
that the RNs provide only limited direction to other members of their teams,
based on their experience and special competence, pursuant to the requirements
of the resident's treatment plan. See pp. 9-10, supra; NLRB Br. 42-43.
14 In the testimony cited by respondent, its Administrator explained that
the building supervisors "can situationally ask for an increase,"
for example, "if we have a problem where we need special supervision
of a-of a resident." J.A. 24. However, the Administrator testified
that, in that event, the building supervisors "would-they would call
the person on call and ask for additional approval." Ibid.
15 Similarly, although another memorandum (J.A. 62) states that the building
supervisors are "in charge of the facility and all rehabilitation staff,"
the Board reasonably concluded that, as a practical matter, "the only
extra responsibility assumed by the RNs when serving as 'building supervisors'
is to obtain needed help if for some reason a shift is not fully staffed."
Pet. App. 51a. Respondent's Administrator testified that the building supervisors'
responsibility is "[p]rimarily to ensure that there's adequate coverage"
and that coverage concerns prompted creation of the role. J.A. 18, 27; see
J.A. 20. Moreover, the building supervisors do not consider themselves to
be in charge of the rehabilitation staff. J.A. 50.
16 Respondent incorrectly contends (Br. 31-35), based largely on its inaccurate
assertions about the authority of the RNs, that they possess the same authority
as nurses found to be supervisors in prior Board cases. The employees found
to be supervisors in the prior cases (except for one case that has been
overruled) had significantly greater authority than the RNs here. See, e.g.,
Nymed, Inc., 320 N.L.R.B. 806, 813 (1996) (evaluation of aides); Newton-Wellesley
Hosp., 219 N.L.R.B. 699, 700 (1975) (approval of overtime, scheduling, and
effective recommendation regarding hiring and firing); Wing Mem'l Hosp.
Ass'n, 217 N.L.R.B. 1015, 1016 (1975) (authorization of overtime, scheduling,
assignments, transfers, evaluations, and effective recommendation regarding
hiring); see also note 9, supra (discussing National Living Ctrs., Inc.).
The same is true of the employees to whose supervisory status "the
parties stipulated" (Br. 30) in other cases cited by respondent. See,
e.g., Schnurmacher Nursing Home v. NLRB, 214 F.3d 260, 263 (2d Cir. 2000)
(administration of the nursing department); NLRB v. Grancare, Inc., 170
F.3d 662, 664 (7th Cir. 1999) (en banc) (scheduling and evaluation); Sherewood
Enters., Inc., 175 N.L.R.B. 354, 356 n.1 (1969) (discipline, evaluation,
and effective recommendation regarding hiring and firing); see also pp.
7-8, supra (discussing Westwood Health Care Ctr.).
17 Respondent's calculation is based on the unwarranted assumption that
the employees "supervised" by the RNs include respondent's kitchen,
housekeeping, and maintenance employees, as well as the rehabilitation counselors.
See Br. 39. The kitchen, housekeeping, and maintenance employees have their
own supervisors, who are stipulated to be Section 2(11) supervisors, and
therefore should not be included in the ratio calculation. Pet. App. 45a,
54a; see Beverly Enters.-Ohio, 313 N.L.R.B. at 507 n.57. Further, respondent
has never contended that the RNs supervise the rehabilitation counselors.
A more realistic analysis yields a ratio of 10% if the RNs are treated as
employees: 49 employees (6 RNs, 3 licensed practical nurses, and 40 rehabilitation
assistants) to 5 supervisors (2 unit coordinators, a nursing coordinator,
the administrator, and the assistant administrator). A ratio of 10% is not
very different from the 12% figure that respondent deems "reasonable."