No. 99-1815 

In the Supreme Court of the United States 

NATIONAL LABOR RELATIONS BOARD, PETITIONER 

v. 

KENTUCKY RIVER COMMUNITY CARE, INC., ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

LEONARD R. PAGE 

General Counsel 

JOHN H. FERGUSON 

Associate General Counsel 

NORTON J. COME 

Deputy Associate General 

Counsel 

JOHN EMAD ARBAB 

Attorney 
National Labor Relations 

Board 
Washington, D.C. 20570 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTIONS PRESENTED 

1. Whether the National Labor Relations Board 
reasonably concluded that an employee’s exercise of 
ordinary professional or technical judgment in directing 
less-skilled employees to deliver services in accordance 
with employer-specified standards does not constitute 
the exercise of “independent judgment” that makes the 
employee a “supervisor” under Section 2(11) of the 
National Labor Relations Act, 29 U.S.C. 152(11). 

2. Whether the Board permissibly requires the 
party who alleges that an employee is excluded from 
the rights and protections afforded by the Act as a su- 
pervisor to bear the burden of proving the individual’s 
supervisory status. 

3. Whether, applying its interpretation of “indepen- 
dent judgment” and its allocation of the burden of 
proving supervisory status, the Board reasonably con- 
cluded that respondent’s registered nurses are “em- 
ployees,” rather than supervisors, and thus entitled to 
the rights and protections afforded by the Act. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provisions involved ...................................................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
11 

Argument ........................................................................................ 14 

I. The Board’s interpretation of “independent 

judgment” is rational and consistent with 

the Act ............................................................................. 
14 

A. The Board’s interpretation is longstand- 
ing and widely applied .......................................... 
16 

B. The Board’s interpretation is consistent 

with the text of Section 2(11) .............................. 

22 

C. The Board’s interpretation furthers Section 

2(11)’s purpose ....................................................... 

24 

D. The Board’s interpretation properly 

accommodates the Act’s coverage of 

“professional employees” ..................................... 

32 

E. The court of appeals erred in substitut- 
ing its own interpretation of “indepen- 
dent judgment” for that of the Board ................ 
34 

II. The Board’s rule regarding the allocation of 

the burden of proving supervisory status is 

reasonable and permissible under the Act ............... 

36 

A. The Board’s rule accords with principles 

of statutory construction and furthers 

the purpose behind the Act’s exemption 

of supervisors ......................................................... 

37 

B. Practical considerations also support the 

Board’s rule ............................................................ 39 

(III) 

IV 

Table of Contents—Continued: 

Page 

III. The RNs working at Caney Creek are not 

supervisors ..................................................................... 42 

Conclusion ....................................................................................... 48 

TABLE OF AUTHORITIES 

Cases: 

AFL v. NLRB, 308 U.S. 401 (1940) .................................... 

40 

Adco Elec. Inc., 307 N.L.R.B. 1113 (1992), enfoced, 

6 F.3d 1110 (5th Cir. 1993) ............................................... 

22, 45 

Ahrens Aircraft, Inc., 259 N.L.R.B. 839 (1981), 

enforced, 703 F.2d 23 (1st Cir. 1983) .................................. 

37 

Angelo C. Scavullo, 109 N.L.R.B. 1327 (1954) ................... 

19 

Arlington Elec., Inc., 332 N.L.R.B. No. 74, 

2000 WL 1614380 (Oct. 24, 2000) ......................................... 

17 

Atlanta Coca-Cola Bottling Co., In re, 83 N.L.R.B. 

187 (1948) ................................................................................. 

18 

Atlanta Newspapers, 306 N.L.R.B. 751 (1992) .................. 

19 

Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 

(1996) ............................................................................. 

12, 16, 34 

Barre-Nat’l, Inc., 316 N.L.R.B. 877 (1995) ......................... 

40 

Bethlehem-Sparrows Point Shipyard, Inc., 65 

N.L.R.B. 284 (1946) ............................................................... 

27 

Beverly Cal. Corp. v. NLRB, 970 F.2d 1548 (6th 

Cir. 1992) ................................................................................. 

36 

Beverly Enters.-Mass., Inc. v. NLRB, 165 F.3d 

960 (D.C. Cir. 1999) ........................................................... 

41, 47 

Boardman Co., 55 N.L.R.B. 105 (1944) ............................... 

26 

Boire v. Greyhound Corp., 376 U.S. 473 (1964) ............ 

40, 41 

Bowne of Houston, Inc., 280 N.L.R.B. 1222 (1986) ......... 

37-38 

Bunting Brass & Bronze Co., 58 N.L.R.B. 618 (1944), 

aff ’d on further consideration, 63 N.L.R.B. 818 

(1945) ........................................................................................ 26 

Capital Transit Co., 114 N.L.R.B. 617 (1955) .................... 17 

V 

Cases—Continued: Page 

Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir. 

1997) ......................................................................................... 36 

Chevron Shipping Co., 317 N.L.R.B. 379 (1995) ................ 

17 

Chicago Metallic Corp., 273 N.L.R.B. 1677 (1985), 

enforced in relevant part, 794 F.2d 527 (9th Cir. 

1986) ....................................................................................... 16-17 

Commercial Movers, Inc., 240 N.L.R.B. 288 (1979) .......... 

38 

Commonwealth Edison Co., 60 N.L.R.B. 1365 

(1945) ........................................................................................ 27 

Douglas Aircraft Co., 50 N.L.R.B. 784 (1943) .................... 

25 

Duval Tex. Sulphur Co., 53 N.L.R.B. 1387 (1943) ............ 

26 

Endicott Johnson Corp., 67 N.L.R.B. 1342 (1946) ............ 

27 

Essex Wire Corp., 188 N.L.R.B. 397 (1971) ........................ 

19 

FTC v. Morton Salt Co., 334 U.S. 37 (1948) ................... 

13, 38 

Fall River Dyeing & Finishing Corp. v. NLRB, 

482 U.S. 27 (1987) ............................................................... 

16, 34 

Federal Shipbuilding & Drydock Co., 55 N.L.R.B. 

1438 (1944) ............................................................................... 

26 

General Chem. Co., 64 N.L.R.B. 357 (1945) ...................... 

26-27 

General Dynamics Corp., 213 N.L.R.B. 851 (1974) .......... 

20 

Golden West Broadcasters-KTLA, 215 N.L.R.B. 760 

(1974) .............................................................................. 

19, 20, 46 

Grancare, Inc. v. NLRB, 137 F.3d 372 (6th Cir. 

1998) ................................................................ 

10, 36, 37, 39, 40 

Graphics Typography, Inc., 217 N.L.R.B. 1047 

(1975), enforced mem., 547 F.2d 1162 (3d Cir. 

1976) .................................................................... 

3, 11, 16, 18, 19 

Health Care & Retirement Corp., 328 N.L.R.B. No. 156, 

1999 WL 562096 (July 27, 1999) ...................................... 

19, 48 

Holly Farms Corp. v. NLRB, 517 U.S. 392 

(1996) .................................................................................... 

13, 38 

Hydro Conduit Corp., 254 N.L.R.B. 433 (1981) ............. 

17, 38 

Integrated Health Servs. v. NLRB, 191 F.3d 703 

(6th Cir. 1999) ..................................................................... 35, 36 

VI 

Cases—Continued: Page 

International Ctr. for Integrative Studies/The Door, 

297 N.L.R.B. 601 (1990) ........................................................ 

20 

Javierre v. Central Altagracia, 217 U.S. 502 

(1910) ........................................................................................ 38 

John Cuneo of Okla., Inc., 238 N.L.R.B. 1438 

(1978), enforced mem., 106 L.R.R.M. (BNA) 3077 

(10th Cir. 1980) ....................................................................... 

18 

Leedom v. Kyne, 358 U.S. 184 (1958) ................................. 

32 

Lockheed Aircraft Corp., 87 N.L.R.B. 40 (1949) ................ 

17 

Magnesium Casting Co. v. NLRB, 401 U.S. 

137 (1971) ................................................................................. 

41 

Marine Eng’rs Beneficial Ass’n v. Interlake S.S. 

Co., 370 U.S. 173 (1962) ....................................................... 

34 

Mid-America Care Found. v. NLRB, 148 F.3d 

638 (6th Cir. 1998) .............................................................. 

10, 36 

Mississippi Power & Light Co., 328 N.L.R.B. No. 

146, 1999 WL 551405 (July 26, 1999) .................................. 

17 

Mitchell v. Kentucky Fin. Co., 359 U.S. 290 

(1959) ........................................................................................ 38 

NLRB v. Bakers of Paris, Inc., 929 F.2d 1427 

(9th Cir. 1991) ......................................................................... 

41 

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ........... 

24, 

29, 31, 39 

NLRB v. Curtin Matheson Scientific, Inc., 494 
U.S. 775 (1990) .................................................................... 

16, 34 

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) ......... 

34 

NLRB v. Harmon Indus., Inc., 565 F.2d 1047 

(8th Cir. 1977) ......................................................................... 

45 

NLRB v. Health Care & Retirement Corp. of 

America, 511 U.S. 571 (1974) ..................................... 

passim 

NLRB v. Hendricks County Rural Elec. Mem- 
bership Corp., 454 U.S. 170 (1981) ..................................... 

34 

NLRB v. Hilliard Dev. Corp., 187 F.3d 133 (1st 

Cir. 1999) ................................................................................. 

32 

NLRB v. Quincy Steel Casting Co., 200 F.2d 293 

(1st Cir. 1952) ......................................................................... 18 

VII 

Cases—Continued: Page 

NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th Cir. 

1983) ..................................................................................... 

33, 46 

NLRB v. Swift & Co., 292 F.2d 561 (1st Cir. 

1961) ......................................................................................... 34 

NLRB v. Transportation Mgmt. Corp., 462 U.S. 

393 (1983) ...................................................................... 

13, 37, 42 

NLRB v. Wilson-Crissman Cadillac, 659 F.2d 728 

(6th Cir. 1981) ......................................................................... 

17 

NLRB v. Yeshiva Univ., 444 U.S. 672 (1980) ................... 

33 

National Broad. Co., 160 N.L.R.B. 1440 (1966) ............... 

20, 46 

New Jersey Worsted Mills, 63 N.L.R.B. 455 (1945) .......... 

26 

New York Univ. Med. Ctr. v. NLRB, 156 F.3d 

405 (2d Cir. 1998) ................................................................... 

41 

Northern Mont. Health Care Ctr. v. NLRB, 324 

N.L.R.B. 752 (1997), enforced in relevant part, 

178 F.3d 1089 (9th Cir. 1999) ............................................... 

21 

Nymed, Inc., 320 N.L.R.B. 806 (1996) ............................. 

15, 21 

Ohio Masonic Home, 295 N.L.R.B. 390 (1989) ................... 

40 

Oil Workers Int’l Union v. NLRB, 445 F.2d 237 

(D.C. Cir. 1971), cert. denied, 404 U.S. 1039 

(1972) ........................................................................................ 47 

Packard Motor Car Co., 61 N.L.R.B. 4, further 

decision, 64 N.L.R.B. 1212 (1945), enforced, 157 

F.2d 80 (6th Cir. 1946), aff ’d, 330 U.S. 485 (1947) ............ 

24 

Phillips Petroleum Co., 61 N.L.R.B. 806 (1945) ................ 

27 

Pittsburgh Equitable Meter Co., 61 N.L.R.B. 880 

(1945) ........................................................................................ 27 

Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 

146 (1941) ................................................................................. 

41 

Providence Hosp., 320 N.L.R.B. 717 (1996), 

enforced, 121 F.3d 548 (9th Cir. 1997) ............................. 

3, 11, 

15, 22, 33, 45 

Raleigh v. Illinois Dep’t of Revenue, 120 S. Ct. 
1951 (2000) ............................................................................... 

38 

Rest Haven Living Ctr., 322 N.L.R.B. 210 (1996) .............. 21 

VIII 

Cases—Continued: Page 

Richards Chem. Works, Inc., 65 N.L.R.B. 14 

(1945) ........................................................................................ 27 

Schnuck Markets, Inc. v. NLRB, 961 F.2d 700 

(8th Cir. 1992) ......................................................................... 

41 

Sears, Roebuck & Co., 292 N.L.R.B. 753 (1989) ................. 

22 

Security Guard Serv., Inc. 154 N.L.R.B. 8 (1965), 

enforced, 384 F.2d 143 (5th Cir. 1967) ........................... 

46, 47 

Skidmore, Owings & Merrill, 192 N.L.R.B. 920 

(1971) ........................................................................................ 20 

Somerset Welding & Steel, Inc., 291 N.L.R.B. 913 

(1988) ........................................................................................ 18 

Southern Bleachery & Print Works, Inc., 115 

N.L.R.B. 787 (1956), further decision, 118 

N.L.R.B. 299 (1957), enforced, 257 F.2d 235 (4th 

Cir. 1958), cert. denied, 359 U.S. 911 (1959) ........... 

22, 47-48 

Southern Paperboard Corp., 84 N.L.R.B. 822 

(1949) ........................................................................................ 16 

St. Alphonsus Hosp., 261 N.L.R.B. 620 (1982), 

enforced mem., 703 F.2d 577 (9th Cir. 1983) ...... 

2-3, 13, 36-37 

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .................. 

38 

Thayer Dairy Co., 233 N.L.R.B. 1383 (1977) ...................... 

38 

Unifirst Corp., 280 N.L.R.B. 75 (1986) ................................ 

41 

VIP Health Servs., Inc. v. NLRB, 164 F.3d 644 

(D.C. Cir. 1999) ....................................................................... 

46 

Victor Chem. Works, 52 N.L.R.B. 194 (1943) ................. 

25, 26 

Washington Post Co., 254 N.L.R.B. 168 (1981) .............. 

20, 46 

Westinghouse Elec. Corp. v. NLRB, 424 F.2d 

1151 (7th Cir.), cert. denied, 400 U.S. 831 (1970) ............. 

17 

Weyerhaeuser Timber Co., 85 N.L.R.B. 1170 (1949) ......... 

16 

Whitney Blake Co., 66 N.L.R.B. 491 (1946) ........................ 

27 

William C. Meredith Co., 74 N.L.R.B. 1064 (1947) ........... 

46 

Wilson & Co., 61 N.L.R.B. 105 (1945) .................................. 26 

IX 

Statutes and regulations: 

Page 

Act of July 5, 1935, ch. 372, § 2(3), 49 Stat. 450 .................... 

24 

Labor Management Relations Act of 1947, ch. 120, 

§ 2(11), 61 Stat. 138 ................................................................ 

27 

National Labor Relations Act, 29 U.S.C. 151 et seq.: 

§ 2(3), 29 U.S.C. 152(3) ........................................................ 

2, 38 

§ 2(11), 29 U.S.C. 152(11) ................................................ 

passim 

§ 2(12), 29 U.S.C. 152(12) ............................................ 

12, 32, 33 

§ 2(12)(a)(ii), 29 U.S.C. 152(12)(a)(ii) .................................. 

32 

§ 7, 29 U.S.C. 157 ................................................................... 

9 

§ 8(a)(1), 29 U.S.C. 158(a)(1) ................................................ 

9 

§ 8(a)(5), 29 U.S.C. 158(a)(5) .............................................. 

9, 40 

§ 9(c), 29 U.S.C. 159(c) .......................................................... 

40 

§ 9(c)(1), 29 U.S.C. 159(c)(1) ................................................. 

40 

§ 10(f), 29 U.S.C. 160(f) ......................................................... 
40 

29 C.F.R.: 

Section 101.20(c) .................................................................... 

40 

Section 102.67(f) ..................................................................... 
41 

Miscellaneous: 

Black’s Law Dictionary (3d ed. 1933) ................................... 

23 

93 Cong. Rec. (1947): 

p. 4677 ...................................................................................... 

31 

p. 4678 ...................................................................................... 
30 

pp. 4677-4678 .......................................................................... 
31 

p. 6442 ...................................................................................... 
31 

Eighth Annual Report of the National Labor Rela- 
tions Board for the Fiscal Year Ended June 30, 
1943 (1944)` .............................................................................. 
25 

H.R. 3020, 80th Cong., 1st Sess. (1947) ................................. 
29 

H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 
(1947) .............................................................................. 
31, 32, 33 

S. Rep. No. 105, 80th Cong., 1st Sess. Pt. 1 (1947) ............. 
13, 

28, 30, 31, 32-33, 40 
Third Annual Report of the National Labor Relations 

Board for the Fiscal Year Ended June 30, 1938 
(1939) ........................................................................................ 25 

Webster’s New International Dictionary (2d ed. 
1934) ......................................................................................... 23 

In the Supreme Court of the United States 

No. 99-1815 

NATIONAL LABOR RELATIONS BOARD, PETITIONER 

v. 

KENTUCKY RIVER COMMUNITY CARE, INC., ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-25a) 
is reported at 193 F.3d 444. The decision and order of 
the National Labor Relations Board in the unfair labor 
practice proceeding (Pet. App. 26a-33a) are noted at 323 
N.L.R.B. No. 209 (Table). The decisions of the Board in 
the underlying representation proceeding (Pet. App. 
34a-60a) are unreported. 

JURISDICTION 

The judgment of the court of appeals (Pet. App. 61a- 
63a) was entered on January 27, 2000. A petition for 
rehearing was denied on March 23, 2000 (Pet. App. 64a- 
65a). The petition for a writ of certiorari was filed on 
May 12, 2000, and was granted on September 26, 2000. 
The jurisdiction of this Court rests on 28 U.S.C. 1254(1). 

(1) 

2 

STATUTORY PROVISIONS INVOLVED 

Section 2(3) of the National Labor Relations Act 
(NLRA or Act), 29 U.S.C. 152(3), provides in relevant 
part: 

The term “employee” shall include any employee 

* * * but shall not include * * * any individual 
employed as a supervisor. 

Section 2(11) of the Act, 29 U.S.C. 152(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 re- 
sponsibly to direct them, or to adjust their griev- 
ances, 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 na- 
ture, but requires the use of independent judgment. 

STATEMENT 

1. To be a supervisor under Section 2(11) of the 
National Labor Relations Act, an employee must have 
authority, in the interest of the employer, to perform 
one of 12 specified supervisory functions, and the 
employee’s exercise of that authority must not be “of a 
merely routine or clerical nature,” but must require 
“the use of independent judgment.” 29 U.S.C. 152(11). 
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 “indepen- 
dent judgment.” Also at issue is the reasonableness of 
the Board’s rule that the party who alleges that an 
employee is a supervisor bears the burden of proving 
the individual’s supervisory status. See, e.g., St. Al- 

3 

phonsus Hosp., 261 N.L.R.B. 620, 624 (1982), enforced 
mem., 703 F.2d 577 (9th Cir. 1983) (Table). 

In NLRB v. Health Care & Retirement Corp. of 
America (HCR), 511 U.S. 571, 574, 584 (1994), this 
Court held that the Board had mistakenly applied a 
special test of supervisory status for the health-care 
industry based on an incorrect interpretation of the 
phrase “in the interest of the employer.” Following 
HCR, the Board decided to apply to nurses its “tradi- 
tional analysis” for determining the supervisory status 
of employees. See Providence Hosp., 320 N.L.R.B. 717 
(1996), enforced, 121 F.3d 548 (9th Cir. 1997). Under 
that analysis, an employee does not exercise the “inde- 
pendent judgment” that triggers supervisory status 
under the Act when the employee exercises ordinary 
professional or technical judgment in directing less- 
skilled employees to deliver services in accordance with 
employer-specified standards. See id. at 729. See also, 

e.g., Graphics Typography, Inc., 217 N.L.R.B. 1047, 
1053 (1975), enforced mem., 547 F.2d 1162 (3d Cir. 1976) 
(Table). In this case, applying that test, the Board con- 
cluded that the registered nurses (RNs) employed by 
respondent Kentucky River Community Care are not 
supervisors. 

2. a. Respondent is a nonprofit organization that 
operates mental health facilities in Kentucky. This case 
involves the Caney Creek Rehabilitation Center, a 
transitional residential center for mentally ill individu- 
als who are seeking to develop skills necessary for 
independent living. Respondent operates Caney Creek 
under contracts with the Commonwealth of Kentucky 
Department for Mental Health and Mental Retardation. 
The contracts, which incorporate by reference certain 
provisions of Kentucky law, set forth eligibility restric- 
tions for residents, facility staffing requirements, and 

4 

other guidelines that govern the services provided by 
respondent. Pet. App. 2a, 5a, 37a-39a. Caney Creek is 
organized into two wings, each of which is divided into 
two units that each accommodates 20 residents. The 
facility operates 24 hours per day, seven days a week. 
Id. at 45a. Overall responsibility for the operation of 
Caney Creek is vested in an administrator and assistant 
administrator. Caney Creek also employs two unit 
coordinators, as well as a nursing coordinator. There is 
also a recreational counselor, a manager for house- 
keeping and maintenance, and a kitchen supervisor. 
Ibid. All of those individuals are stipulated to be 
Section 2(11) supervisors. Id. at 54a. 

Caney Creek employs 20 rehabilitation counselors, 
40 rehabilitation assistants, six RNs, and three licensed 
practical nurses (LPNs). Pet. App. 45a; J.A. 8, 15, 29. 
Each of the four treatment units is staffed with five 
rehabilitation counselors and ten rehabilitation assis- 
tants. Pet. App. 6a, 45a. The RNs and LPNs provide 
medical services to residents throughout the units. Id. 
at 45a, 50a. Two RNs and one LPN generally work on 
each of three shifts (7 a.m. to 3:30 p.m., 3 p.m. to 11:30 

p.m., and 11 p.m. to 7:30 a.m.), although occasionally 
only one RN works on the third shift. Id. at 50a; J.A. 
16, 35-36, 41-42, 43-44. 

For each resident, Caney Creek establishes a treat- 
ment plan that contains rehabilitative goals and speci- 
fies activities designed to accomplish those goals. Pet. 
App. 46a. The treatment plan also has a medical 
component, because all residents receive some form of 
medication. The rehabilitation counselors and RNs 
participate in the formulation of the plans, but each 
resident’s treatment plan must be approved by the unit 
coordinator and the resident’s psychiatrist. Id. at 19a- 
20a, 46a; J.A. 12, 33. The RNs work with and occasion- 

5 

ally direct less-skilled employees to deliver services in 
accordance with the employer-specified standards 
expressed in the treatment plans.1 

The non-medical component of the treatment plans is 
implemented on a daily basis by the rehabilitation 
assistants. Each morning, the rehabilitation counselors 
meet with the rehabilitation assistants, who volunteer 
for particular tasks. Pet. App. 20a, 47a-48a. The 
rehabilitation assistants ensure that the residents wake 
up on time, are properly bathed and dressed, attend 
scheduled classes, and keep their doctors’ appoint- 
ments. Id. at 47a-48a; J.A. 13. 

The medical component of the treatment plans is 
implemented on a daily basis by the RNs and LPNs. 
Pet. App. 17a, 45a, 46a; J.A. 17, 18, 33. The LPNs pass 
medications to the residents. The RNs ensure that the 
correct medication is passed to the correct resident at 
the correct time, handle any necessary documentation, 
and provide direct medical care to the residents. Pet. 
App. 17a, 50a; J.A. 17, 18, 29, 33, 52. The RNs also work 
with the rehabilitation assistants: the assistants bring 
the residents’ health problems to the RNs’ attention 
and assist the RNs in administering medication “if a 
resident is really acting out.” J.A. 57-61. 

During part of the second and all of the third shift, 
and on weekends, neither the administrator nor any 
other stipulated supervisor is physically present at 

1 The provision of services to residents at Caney Creek is 
“treatment plan directed.” J.A. 46. The treatment plans are kept 
on file at the work stations between the units and are “very similar 
to the medical records that you would find in most—in any residen- 
tial or hospital setting.” J.A. 11, 13. The elements of the treatment 
plans must conform to the specifications set out in the contracts 
with Kentucky. See J.A. 70-75; J.A. 11 (treatment plans are “regu- 
lated as to what needs to be included in those plans”). 

6 

Caney Creek. However, a stipulated supervisor is 
always “on call” at those times. When the stipulated 
supervisor is “on call” rather than on site, an RN on 
duty is designated by respondent as “building supervi- 
sor.” Pet. App. 16a, 50a; J.A. 18, 36, 39. The same RN 
may be an ordinary nurse on one day of the week and 
the building supervisor on another day of the week. 
See J.A. 22-23, 42. Moreover, the RNs on the second 
shift are not notified as to when during the shift they 
assume their building-supervisor responsibilities. J.A. 
50-51. When serving as building supervisor, an RN 
receives no extra compensation. Pet. App. 50a; J.A. 37. 

As building supervisors, the RNs have some addi- 
tional duties. Although there is no job description for 
the position, J.A. 37, according to a memorandum issued 
by respondent, the building supervisors are “in charge 
of the facility and all rehabilitation staff.” J.A. 62. 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. When the building supervisors 
“come on duty,” they are “[to] visit the units to check 
the coverage,” and, “[i]f necessary, pull from one unit to 
another.” J.A. 63. However, the number of employees 
necessary to cover a given shift is set by management. 
J.A. 23-24, 28-29. The building supervisors transfer 
employees from one unit to another for the particular 
shift simply “[t]o make sure the head count is there.” 
J.A. 29; see J.A. 22, 27. 

The building supervisors also handle staff shortages 
when employees telephone that they are unable to 
report for their scheduled shift. Pet. App. 16a, 51a; J.A. 
62, 64. In those situations, the building supervisors 
first seek a volunteer from the preceding shift to stay 
over. If no one volunteers, the building supervisors, 

7 

using a list, attempt to reach by telephone an off-duty 
employee who lives nearby to come in to work. Pet. 
App. 51a; J.A. 19-20, 64. In no case, however, do the 
building supervisors have authority to compel the 
employee to work under threat of discipline. Pet. App. 
16a, 51a; J.A. 38. 

According to a memorandum issued by respondent, 
the building supervisors are authorized to “write up” an 
employee who does not “comply” with a decision “to 
shift staff between units.” Pet. App. 16a; J.A. 63. 
Respondent also contends that they have authority to 
“send an employee home” in some circumstances. Pet. 
App. 17a; J.A. 20-21. The record contains no evidence 
as to the consequences if an employee were “writ[ten] 
up” as contemplated in the memorandum. Indeed, 
there is no evidence in the record that the building 
supervisors have ever actually exercised authority 
either to “write up” an employee or to send an 
employee home. Pet. App. 51a; J.A. 26-27, 38, 55-56. 

b. In January 1997, the Kentucky State District 
Council of Carpenters (Union) filed a petition with the 
Board seeking to represent an appropriate bargaining 
unit of employees at Caney Creek. Respondent con- 
tended that the RNs and the rehabilitation counselors 
should be excluded from any bargaining unit as Section 
2(11) supervisors.2 After a hearing, the Board’s 
Regional Director (RD) rejected that contention. Pet. 
App. 46a-53a. The RD explained that, after this Court’s 
decision in HCR, “the Board determined to apply the 

2 Respondent also contended that it is exempt from the Board’s 
jurisdiction as a “political subdivision” of the Commonwealth of 
Kentucky. Both the Board and the court of appeals rejected that 
contention, Pet. App. 8a-13a, 37a-44a, and respondent has not 
sought this Court’s review of that determination. 

8 

same test to registered nurses as is applicable to all 
other individuals in determining supervisory status.” 
Id. at 52a. The RD also noted that HCR did not 
“alter[]” the Board’s “well settled” rule that “the bur- 
den of proving that an individual is a supervisor within 
the meaning of Section 2(11) of the Act rests with the 
party asserting supervisory status.” Ibid. 

Applying those principles, the RD concluded that 
respondent had “not met its burden of establishing that 
the RNs, even when serving as ‘building supervisors,’ 
are supervisors within the meaning of Section 2(11) of 
the Act.” Pet. App. 53a. The RD found that “the RNs 
may occasionally request other employees to perform 
routine tasks, but they apparently have no authority to 
take any action if the employee refuses their direc- 
tives.” Id. at 51a. He found that “the RNs, including 
when they are serving as ‘building supervisors,’ for the 
most part, work independently and by themselves 
without any subordinates.” Id. at 52a. Although re- 
spondent contended that “RNs can ‘write up’ employ- 
ees,” the RD found that “there is no evidence in the 
record that they have ever done so.” Id. at 51a. In fact, 
in the only instance in the record in which “an RN made 
a complaint about another employee it was apparently 
ignored” by management. Ibid. The RD further found 
that “[t]he ‘building supervisors’ do not have any 
authority * * * to compel an employee to stay over or 
come in to fill a vacancy under threat of discipline.” 
Ibid. He concluded that “[t]he fact that the RNs may 
request employees to perform routine tasks and, pur- 
suant to established policy, call in replacements or seek 
volunteers to stay over does not establish supervisory 
status.” Id. at 53a. The RD also found that the reha- 
bilitation counselors are not supervisors. Id. at 49a. 

9 

c. Respondent requested the Board’s review of the 
RD’s decision. Insofar as relevant here, the Board de- 
nied the request for review. Pet. App. 34a. On March 
20, 1997, the Board conducted an election among the 
employees at Caney Creek, which the Union won. Ac- 
cordingly, the Board certified the Union as the bargain- 
ing representative of the employees, including the RNs 
and the rehabilitation counselors. Id. at 28a-29a. 
Respondent refused to bargain with the Union. Pet. 
App. 29a. Acting on a charge filed by the Union, the 
Board’s General Counsel issued a complaint alleging 
that respondent’s refusal to bargain with the Union 
violated Section 8(a)(5) and (1) of the Act, 29 U.S.C. 
158(a)(5) and (1). Pet. App. 26a.3 On summary judg- 
ment, the Board found that respondent had violated the 
Act and ordered respondent to bargain with the Union. 
Id. at 26a-33a. 

3. Respondent filed a petition for review of the 
Board’s order in the United States Court of Appeals for 
the Sixth Circuit. The court of appeals sustained the 
Board’s finding that the rehabilitation counselors are 
not supervisors under Section 2(11) of the Act but held, 
by a divided vote, that “the registered nurses [that 
respondent] employs are supervisors.” Pet. App. 2a. 
The court therefore denied enforcement of the Board’s 
order “insofar as it includes the registered nurses in the 
bargaining unit.” Ibid. 

3 Section 8(a)(5) makes it an unfair labor practice for an em- 
ployer “to refuse to bargain collectively with the representatives 
of his employees.” 29 U.S.C. 158(a)(5). Section 8(a)(1) makes it an 
unfair labor practice for an employer “to interfere with, restrain, 
or coerce employees in the exercise of the rights guaranteed in 
[Section 7]” of the Act, 29 U.S.C. 157, among which is the right of 
employees “to bargain collectively through representatives of their 
own choosing.” 29 U.S.C. 158(a)(1). 

10 

The court of appeals explained that its task in this 
case was to determine whether the RNs’ responsibili- 
ties “call for the exercise of ‘independent judgment’ 
under section [2(11)].” Pet. App. 17a. The court stated: 

Unfortunately, the NLRB has continuously inter- 
preted “independent judgment” in a manner that is 
inconsistent with this circuit’s precedent. According 
to NLRB interpretations, the practice of a nurse 
supervising a nurse’s aide in administering patient 
care, for example, does not involve “independent 
judgment.” The NLRB classifies these activities as 
“routine” because the nurses have the ability to 
direct patient care by virtue of their training and 
expertise, not because of their connection with 
“management.” 

Ibid. 

The court of appeals observed that it “has repeatedly 
rejected this interpretation” of “independent judg- 
ment” and has instead “found that nurses are supervi- 
sors when they direct assistants with respect to patient 
care, rectify staffing shortages, fill out evaluation 
forms, and serve as the highest ranking employee in the 
building during off-peak shifts.” Pet. App. 17a (citing 
Mid-America Care Found. v. NLRB, 148 F.3d 638 (6th 
Cir. 1998)). The court also faulted the Board for 
“ignor[ing] our repeated admonition that ‘[t]he [NLRB] 
has the burden of proving that employees are not 
supervisors.’ ” 

Id. at 15a (quoting Grancare, Inc. v. 
NLRB, 137 F.3d 372, 375 (6th Cir. 1998)). 

Applying its own understanding of “independent 
judgment” and the burden of proof, the court of appeals 
reasoned that the Caney Creek RNs are supervisors 
because they “direct the LPNs in the proper dispensing 
of medication, regularly serve as the highest ranking 

11 

employees in the building, seek additional employees in 
the event of a staffing shortage, move employees be- 
tween units as needed, and have the authority to write 
up employees who do not cooperate with staffing as- 
signments.” Pet. App. 18a-19a. The court concluded 
that those duties “involve independent judgment.” 
Ibid. 4 

Judge Jones dissented in part. He agreed with the 
majority’s holding that the rehabilitation counselors are 
not statutory supervisors. Pet. App. 22a. However, 
based on the reasoning of the Regional Director, he 
would have reached the same conclusion with respect to 
the RNs. Id. at 23a-25a. 

SUMMARY OF ARGUMENT 

I. The National Labor Relations Board has long held 
that an employee does not exercise “independent judg- 
ment” that triggers supervisory status under Section 
2(11) of the National Labor Relations Act when he uses 
ordinary professional or technical judgment in directing 
less-skilled employees to deliver services in accordance 
with employer-specified standards. See Providence 
Hosp., 320 N.L.R.B. 717, 729 (1996), enforced, 121 F.3d 
548 (9th Cir. 1997). See also, e.g., Graphics Typogra- 
phy, Inc., 217 N.L.R.B. 1047, 1053 (1975), enforced 
mem., 547 F.2d 1162 (3d Cir. 1976) (Table). That inter- 

4 The court of appeals upheld the Board’s finding that the reha- 
bilitation counselors are not supervisors. The court explained that 
the rehabilitation counselors’ primary function of designing a pa- 
tient treatment plan “does not, of itself, involve any supervisory 
authority.” Pet. App. 21a. Moreover, the fact that the assistants 
“carry out the provisions of the treatment plans designed by the 
counselors does not suggest that the counselors are supervisors.” 
Ibid. Respondent has not sought review of that holding by this 
Court. 

12 

pretation, which the Board has applied to a variety of 
industries and employees, is entitled to deference 
because it is rational and consistent with the Act. See, 

e.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 
787-788 (1996). 

The Board’s interpretation is supported by the text 
of Section 2(11). The use of both the limiting phrase 
“not of a merely routine or clerical nature” and the 
adjective “independent,” suggests that, in order to be 
considered a supervisor, an employee must exercise 
judgment beyond that involved in regular or customary 
activities and which is not controlled or significantly 
constrained by outside sources. The Board’s interpre- 
tation also advances Section 2(11)’s purpose of exclud- 
ing from the Act’s coverage those employees who 
exercise true managerial power while preserving the 
Act’s protections for employees with minor supervisory 
responsibilities. Moreover, the Board’s view reflects 
Congress’s intent to adopt the Board’s practice under 
the Wagner Act of excluding from supervisory status 
employees who, in addition to doing their own work, 
provided limited direction for others based on technical 
skills or employer-specified standards. Finally, the 
Board’s interpretation of “independent judgment” har- 
monizes Section 2(11)’s exclusion of supervisors with 
Section 2(12)’s inclusion within the Act of “professional 
employees,” who, by definition, exercise “discretion and 
judgment.” 

The court of appeals erred in concluding that this 
Court’s decision in NLRB v. Health Care & Retirement 
Corp. of America, 511 U.S. 571 (1994), precludes 
deference to the Board’s interpretation. HCR rejected 
only the Board’s now-abandoned test for determining 
the supervisory status of nurses, which was based on an 
interpretation of Section 2(11)’s phrase “in the interest 

13 

of the employer.” Id. at 574, 576. 

The Court made 

clear that its decision cast no doubt on Board decisions 
interpreting other parts of Section 2(11). Id. at 583. 
Indeed, the Court expressly pointed out that the phrase 
“independent judgment” is “ambiguous” and that the 
Board is therefore entitled to “ample room” in applying 
it. Id. at 579. 

II. The Board has also long held that the party who 
alleges that an employee is excluded from the coverage 
of the Act as a supervisor bears the burden of proving 
the individual’s supervisory status. See, e.g., St. Al- 
phonsus Hosp., 261 N.L.R.B. 620, 624 (1982), enforced 
mem., 703 F.2d 577 (9th Cir. 1983) (Table). The court of 
appeals erred in rejecting that rule, which has been 
upheld by other courts of appeals, and is reasonable and 
permissible under the Act. See NLRB v. Transporta- 
tion Mgmt. Corp., 462 U.S. 393, 402-403 (1983). 

The Board’s rule, which it applies regardless of the 
industry involved or the party that is asserting the 
claim of supervisory status, is consistent with the 
general principle that the burden of proving entitle- 
ment to an exemption from a statutory provision rests 
on the one who claims the exemption’s benefits. E.g., 
FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). The 
Board’s rule also furthers Congress’s intent that the 
Act’s exclusion of supervisors should apply only to 
individuals who are “truly supervisory” and exercise 
“genuine management prerogatives.” S. Rep. No. 105, 
80th Cong., 1st Sess. Pt. 1, at 4, 19 (1947). See also 
Holly Farms Corp. v. NLRB., 517 U.S. 392, 399 (1996). 
Finally, the court of appeals’ rule, which puts the bur- 
den of proving lack of supervisory status on the Board, 
presents practical difficulties, because the question of 
supervisory status is often determined in representa- 

14 

tion proceedings, in which neither the Board nor its 
General Counsel has an advocacy role. 

III. Applying its interpretation of “independent 
judgment” and its rule regarding allocation of the bur- 
den of proving supervisory status, the Board reason- 
ably concluded that the RNs employed by respondent 
are not supervisors. Their limited direction of LPNs 
and rehabilitation assistants does not involve “indepen- 
dent judgment.” Rather, it is based on their profes- 
sional competence and role as the more experienced 
member of a team, and it is circumscribed by the 
requirements of the treatment plans specified by 
respondent. The RNs’ responsibility to ensure cover- 
age at staff levels set by respondent, by following 
procedures that leave little room for discretion, likewise 
is not supervisory. Finally, the RNs’ service as the 
highest ranking employee on site during certain hours 
does not entail the exercise of any supervisory function 
specified in Section 2(11), and respondent failed to meet 
its burden of proving that the RNs have disciplinary 
authority over other employees. 

ARGUMENT 

I. THE BOARD’S INTERPRETATION OF “INDEPEN- 
DENT JUDGMENT” IS RATIONAL AND CONSIS- 
TENT WITH THE ACT 

Under Section 2(11) of the National Labor Relations 
Act, an employee is a “supervisor” only if the employee 
has authority “in the interest of the employer” to 
perform one of 12 specified supervisory functions, and 
the employee’s exercise of that authority is not “of a 
merely routine or clerical nature,” but “requires the use 
of independent judgment.” 29 U.S.C. 152(11). In 
NRLB v. Health Care & Retirement Corp. of America, 
511 U.S. 571 (1994), this Court considered the validity 

15 

of the Board’s approach at that time to determining 
whether a nurse is a supervisor under Section 2(11). 
Under that approach, “a nurse’s direction of less-skilled 
employees, in the exercise of professional judgment 
incidental to the treatment of patients,” was not 
authority exercised “in the interest of the employer.” 
Id. at 574, 576. The Court held that the Board’s 
interpretation of “in the interest of the employer” was 
inconsistent with the ordinary meaning of that phrase 
and prior decisions of the Court, and improperly 
created a special test of supervisory status for the 
health-care industry. Id. at 574, 576-584. The Court 
explained, however, that “phrases in § 2(11) such as 
‘independent judgment’ and ‘responsibly to direct’ are 
ambiguous, so the Board needs to be given ample room 
to apply them to different categories of employees.” Id. 
at 579 (emphasis added). The Court did not rule on the 
proper interpretation of any statutory element other 
than “in the interest of the employer.” Id. at 583. 

The principal issue in this case is whether the Board’s 
current approach to determining whether a nurse is a 
supervisor under Section 2(11) of the Act—which the 
Board developed after HCR and which turns on the 
statutory term “independent judgment,” rather than 
the phrase “in the interest of the employer”—is rea- 
sonable. The Board developed its current approach in 
two cases in which it heard oral argument and con- 
sidered the submissions of numerous amici. See Provi- 
dence Hosp., 320 N.L.R.B. 717 (1996), enforced, 121 
F.3d 548 (9th Cir. 1997); Nymed, Inc., 320 N.L.R.B. 806 
(1996). After carefully examining the structure of the 
Act, the legislative history of Section 2(11), and the 
relevant case law, including HCR, the Board decided to 
apply to nurses its “traditional analysis for determining 

16 

the supervisory status of employees in other occupa- 
tions.” Providence Hosp., 320 N.L.R.B. at 717. 

Under the Board’s traditional analysis, an employee’s 
exercise of ordinary professional or technical judgment 
in directing less-skilled employees to deliver services in 
accordance with employer-specified standards is not the 
exercise of “independent judgment” that makes an em- 
ployee a “supervisor” under Section 2(11). See Provi- 
dence Hosp., 320 N.L.R.B. at 729. See also, e.g., Graph- 
ics Typography, Inc., 217 N.L.R.B. 1047, 1053 (1975), 
enforced mem., 547 F.2d 1162 (3d Cir. 1976) (Table). 
The court of appeals in this case erred in rejecting that 
view, which is rational and consistent with the Act. 
See, e.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 
781, 787-788 (1996); NLRB v. Curtin Matheson Scien- 
tific, Inc., 494 U.S. 775, 796 (1990); Fall River Dyeing & 
Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987). 

A. The Board’s Interpretation Is Longstanding And 

Widely Applied 

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 perform- 
ance of any of the supervisory duties specified in Sec- 
tion 2(11). See, e.g., Weyerhaeuser Timber Co., 85 
N.L.R.B. 1170, 1173 (1949) (employee does not exercise 
“such a degree of independent judgment or discretion in 
the performance of his duties as would warrant a 
finding that he is a supervisor within the meaning of 
Section 2(11)”); Southern Paperboard Corp., 84 
N.L.R.B. 822, 824 (1949) (same). “Consequently, an 
employee does not become a supervisor merely because 
he gives some instructions or minor orders to other 
employees.” Chicago Metallic Corp., 273 N.L.R.B. 
1677, 1689 (1985), enforced in relevant part, 794 F.2d 

17 

527 (9th Cir. 1986). Rather, supervisory status hinges 
on “the significance of his judgment and directions.” 
Ibid. (quoting NLRB v. Wilson-Crissman Cadillac, 659 
F.2d 728, 729 (6th Cir. 1981)). See, e.g., Hydro Conduit 
Corp., 254 N.L.R.B. 433, 437 (1981) (employee did not 
exercise “independent judgment” because he did not 
exercise “any significant discretion” with respect to 
supervisory powers); Capital Transit Co., 114 N.L.R.B. 
617, 618-619 (1955) (employee not supervisor when “dis- 
cretion accompanying the duties [is] so circumscribed 
by limitations * * * as to negate the use of 
independent judgment”). 

Applying that principle to a various employment 
contexts outside of the health care field, the Board has 
concluded that employees who, based on technical skill5 

5 See, e.g., Arlington Elec., Inc., 332 N.L.R.B. No. 74, 2000 WL 
1614380, *2 (Oct. 24, 2000) (electrician did not exercise “indepen- 
dent judgment” where he “provided direction and guidance to 
other employees based on his experience and craft skill and pur- 
suant to [a statutory supervisor’s] project plans”); Mississippi 
Power & Light Co., 328 N.L.R.B. No. 146, 1999 WL 551405, *14-15 
(July 26, 1999) (distribution dispatchers whose “performance of 
their own job entails the exercise of special knowledge or exper- 
tise” did not exercise “independent judgment” in directing field 
employees pursuant to “complex schemata”); Chevron Shipping 
Co., 317 N.L.R.B. 379, 381-382 (1995) (licensed ship officers not 
supervisors where “their authority to direct the work of the crew 
is based on their greater technical expertise and experience” and 
“their use of independent judgment and discretion is circumscribed 
by the master’s standing orders, and the Operating Regulations,” 
which “delineate[] in great detail” the duties of both licensed and 
unlicensed crew members); Lockheed Aircraft Corp., 87 N.L.R.B. 
40, 41-42 (1949) (leadmen not supervisors where they “interpret” 
shop orders and blueprints for members of their work groups); see 
also Westinghouse Elec. Corp. v. NLRB, 424 F.2d 1151, 1156 (7th 
Cir.) (upholding Board’s finding that directions given by field 
engineers to casual laborers in accordance with design plans not 

18 

or experience,6 exercise limited discretion to direct 
other employees in accordance with employer-specified 
standards (as expressed in blue-prints, established 
work procedures, and the like) do not exercise the 
“independent judgment” that triggers supervisory 
status. For example, in Graphics Typography, Inc., the 
Board decided that experienced employees in a 
lithography shop did not exercise “independent judg- 
ment contemplated by Section 2(11).” 217 N.L.R.B. at 
1053. Although the employees used “judgment in 
advising less experienced employees how to deal with 
specific work problems or how best to do a job,” that 

supervisory where “such communications are necessary incidents 
of the application of [the field engineers’] technical know-how”), 
cert. denied, 400 U.S. 831 (1970). 

6 See, e.g., Somerset Welding & Steel, Inc., 291 N.L.R.B. 913, 
914 (1988) (employees who have “responsibility to direct the work” 
“based on their higher level of skill and greater seniority” “do not 
exercise independent judgment” when they “mak[e] sure [assign- 
ments] are completed to predetermined specifications”); John 
Cuneo of Okla., Inc., 238 N.L.R.B. 1438, 1439 (1978) (experienced 
employee in charge of sprinkler installation crew does not exercise 
“independent judgment” in directing employees where blueprints 
are “generally explicit” and applicable industry booklet “regulates 
significant aspects of sprinkler installation”), enforced mem., 106 
L.R.R.M. (BNA) 3077 (10th Cir. 1980) (Table); In re Atlanta Coca- 
Cola Bottling Co., 83 N.L.R.B. 187, 189 (1949) (direction by driver- 
salesmen of activities of helper is “routine in character” and “does 
not exceed that of a skilled craftsman with respect to a single 
helper working under his direction”); see also NLRB v. Quincy 
Steel Casting Co., 200 F.2d 293, 295 (1st Cir. 1952) (upholding 
Board’s finding that employee who “had charge of [hot metal] 
pouring operation, a task of coordination, telling a fellow molder 
when to start and when to stop pouring” was not a supervisor even 
though the job “requires the exercise of some judgment” because 
“any of the skilled molders in the room was competent to handle 
the job” and the “operation is more or less routine”). 

19 

direction “involved a technical judgment based on skill 
and experience” and did not “extend[] in any significant 
manner beyond standardized operating procedures.” 
Ibid.7 

The Board has applied the same principle to profes- 
sional employees in a variety of fields. For example, in 
Golden West Broadcasters-KTLA, 215 N.L.R.B. 760, 
762 & n.4 (1974), the Board found that “directors” at 
remote television broadcasts were not supervisors. The 
Board explained that supervisory status “turns not only 

7 When, however, an employee is vested with significant discre- 
tion to direct other employees within only general confines set by 
the employer’s instructions, the Board has found that the employee 
exercises “independent judgment” that triggers supervisory 
status. See, e.g., Atlanta Newspapers, 306 N.L.R.B. 751, 756 (1992) 
(men-in-charge, who “oversee the operation of the press,” found to 
be supervisors because, “[a]lthough they have a checklist of opera- 
tions to perform,” they have “significant authority over and re- 
sponsibility for their crews with respect to the assignment of work 
to them and their direction in carrying out their tasks”); Essex 
Wire Corp., 188 N.L.R.B. 397, 403 (1971) (employee who was given 
written instructions “as to which operations were to be performed 
and for how long” found to be a supervisor because he “could and 
did exercise discretion and judgment” in “switch[ing workers] 
between operations, decid[ing] whether he had too many for his 
needs, [and] transfer[ing] them to the night-shift foreman for 
reassignment”); Angelo C. Scavullo, 109 N.L.R.B. 1327, 1332 
(1954) (employee who received “general guidance” from route 
sheets prepared by management found to be supervisor because 
“even with the route sheets to guide him he must still exercise 
considerable discretion and judgment in giving” directions to other 
employees). See also 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”). 

20 

on whether [an employee has] the authority, in the 
interest of the employer, inter alia, responsibly to direct 
other employees, but also on the nature and extent of 
that authority.” Id. at 762 n.4 (emphasis added). Thus, 
“an 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.” Ibid. 
“This is so,” the Board explained, “even when the more 
senior or more expert employee exercises some inde- 
pendent discretion where, as here, such discretion is 
based upon special competence or upon specific articu- 
lated employer policies.” Ibid.8 

8 See also International Ctr. for Integrative Studies/The Door, 
297 N.L.R.B. 601, 602 & n.7 (1990) (doctor not supervisor because 
she at most “engaged in the routine direction of employees,” and 
“the routine direction of employees based on a higher level of skill 
or experience is not evidence of supervisory status”); Washington 
Post Co., 254 N.L.R.B. 168, 204 (1981) (night metro editor not 
supervisor where he exercised “limited discretion” in assigning 
stories to reporters consistent with “the [e]mployer’s standards for 
preparing a quality newspaper”); General Dynamics Corp., 213 
N.L.R.B. 851, 858-859 (1974) (employees who “exercise a certain 
amount of discretion in assigning work” not supervisors because 
discretion is “within the parameters set by the utilization of sys- 
tems engineering,” “exercised in a professional sense,” and “di- 
rectly related to a professional responsibility for the quality of 
work performed on the projects to which they are assigned”); 
Skidmore, Owings & Merrill, 192 N.L.R.B. 920, 921 (1971) (project 
manager and job captains at architecture firm who have “some 
discretion in assigning work and are professionally responsible for 
the quality of work performed on a project to which they are 
assigned” are not supervisors but “merely provide professional 
direction and coordination for other professional employees”); 
National Broad. Co., 160 N.L.R.B. 1440, 1441-1442 (1966) (desk- 
men not supervisors because they exercise “only such judgment” 
and execute “only such tasks as appropriately fall within the scope 

21 

As we have noted, see pp. 15-16, supra, after HCR, 
the Board decided to apply the same principle to the 
health care industry. Thus, the Board has recognized 
that a nurse who articulates the meaning of an estab- 
lished health care routine to an aide—like a technician 
who gives directions on the basis of a reading of a 
wiring diagram or blueprint—may well exercise some 
degree of judgment. Without more, however, a nurse 
delegated such limited authority over other employees 
is not exercising the “independent judgment” that 
triggers supervisory status but is making only a routine 
professional or technical judgment and giving directions 
based on that judgment. See Northern Mont. Health 
Care Ctr., 324 N.L.R.B. 752, 753 (1997) (demonstrating 
to an aide the proper way to perform a procedure is 
“the exercise of the [nurse’s] greater skill and experi- 
ence in helping a less skilled employee perform her job 
correctly”), enforced in relevant part, 178 F.3d 1089 
(9th Cir. 1999); Rest Haven Living Ctr., 322 N.L.R.B. 
210, 211 (1996) (LPNs do not exercise independent 
judgment because directives to aides are “narrowly 
circumscribed” and involve “routine directions to lesser 
skilled employees consistent with established employer 
policies”); Nymed, 320 N.L.R.B. at 807, 810-812 & nn.9- 
11 (“narrowly circumscribed” assignment and direction 
of aides does not involve independent judgment when 
based on detailed individual health care plans).9 

of the newswriting craft or profession” and their assignment and 
direction is “but a part of the group or team effort required for the 
production of up-to-the-minute, professionally prepared news 
programs in keeping with the standards maintained by the 
Employer”). 

9 In some decisions applying the principle discussed in the text 
above, the Board appears to suggest that the principle also reflects 
an interpretation of Section 2(11)’s “responsibly to direct” lan- 

22 

B. The Board’s Interpretation Is Consistent With The 

Text Of Section 2(11) 

The Board’s understanding of independent judgment 
is supported by the text of Section 2(11). The statutory 
language makes clear that an employee may exercise 
supervisory authority that requires the use of some 
degree of judgment without being a supervisor. Under 
Section 2(11), an employee is not a supervisor merely 
because he has authority to assign, responsibly to 
direct, or to exercise one of the other listed supervisory 

guage. See, e.g., Adco Elec. Inc., 307 N.L.R.B. 1113, 1120 (1992) 
(“Exercise of the authority which derives from a worker’s status as 
a skilled craftsman does not confer supervisory status because that 
authority is not the type contemplated in the statutory definition. 

* * * * ‘[I]t is not the authority responsibly to direct other 
employees which flows from management and tends to identify or 
associate a worker with management.’ ”) (citation omitted), en- 
forced, 6 F.3d 1110 (5th Cir. 1993); Sears, Roebuck & Co., 292 
N.L.R.B. 753, 754-755 (1989) (employee who assigns work is not 
engaged in either “responsible direction” or “the exercise of inde- 
pendent judgment” because he is “merely an experienced em- 
ployee who knows which employee can better operate certain 
equipment”); Southern Bleachery & Print Works, Inc., 115 
N.L.R.B. 787, 791, 792-793 (1956) (employee does not exercise “the 
authority responsibly to direct other employees which flows from 
management” where employer’s instructions merely “codify the 
control * * * customarily exercised by any skilled craftsmen over 
their helpers and apprentices”), further decision, 118 N.L.R.B. 299 
(1957), enforced, 257 F.2d 235 (4th Cir. 1958), cert. denied, 359 U.S. 
911 (1959). This case, however, presents only the question of the 
proper interpretation of “independent judgment,” not the question 
of the correct interpretation of “responsibly to direct.” See Pet. 
App. 52a-53a (relying on “traditional analysis” of independent 
judgment as described in Providence Hosp., 320 N.L.R.B. at 717); 
Pet. App. 17a-19a (rejecting Board’s interpretation of “indepen- 
dent judgment”); Pet. i (seeking this Court’s review of proper 
interpretation of “independent judgment”). 

23 

functions with respect to other employees. An em- 
ployee is a supervisor only if his exercise of that 
authority is both “not of a merely routine or clerical 
nature” and “requires the use of independent judg- 
ment.” 29 U.S.C. 152(11). 

If Congress had intended to class as a supervisor any 
employee who directs other employees in a non- 
ministerial way, it could simply have provided that 
supervisory action requires the exercise of “judgment.” 
The statute’s use instead of both the limiting phrase 
“not of a merely routine or clerical nature” and the 
adjective “independent” suggests that, in order to be 
considered a supervisor, an employee must exercise 
supervisory authority using judgment that entails a 
significant amount of discretion. 

That suggestion is reinforced by the meaning of the 
terms “routine” and “independent.” At the time that 
Section 2(11) was enacted, “routine” meant “[o]f the 
nature of routine; performed, or occurring, regularly.” 
Webster’s New International Dictionary 2176 (2d ed. 
1934); see also ibid. (defining the noun “routine” to 
mean “[a] round, as of business, amusement, or occupa- 
tion, daily or frequently pursued; esp., a regular or 
customary course of business or official duties” (def. 1)). 
A leading legal definition of “independent,” on the other 
hand, was “not subject to control, restriction, modifica- 
tion or limitation from a given outside source.” Black’s 
Law Dictionary 950 (3d ed. 1933). See also Webster’s 
New International Dictionary at 1262 (including, 
among the definitions of “independent,” “[n]ot contin- 
gent or conditioned” (def. 1b) and “unconstrained” (def. 

5)). Thus, the text of Section 2(11) suggests, consistent 
with the Board’s view, that the “independent judg- 
ment” that triggers supervisory status is judgment 
beyond that involved in carrying out regular or custom- 

24 

ary activities and which is not controlled or significantly 
constrained by outside sources, such as employer- 
specified standards. 

C. The Board’s Interpretation Furthers Section 2(11)’s 

Purpose 

The Board’s interpretation of “independent judg- 
ment” not only comports with the language of Section 
2(11) but also advances the purpose of that provision. 
As we explain below, the exclusion of supervisors from 
NLRA coverage was designed to ensure that manage- 
ment could rely on the undivided loyalty of its 
representatives, but Congress intended to preserve the 
Act’s protections for those employees with minor 
supervisory responsibilities who do not exercise true 
managerial power. Indeed, in enacting Section 2(11), 
Congress essentially adopted the definition of supervi- 
sor that the Board had employed in administering the 
original NLRA, known as the Wagner Act. Under that 
definition, as under its current practice, the Board did 
not class as supervisors employees who, in addition to 
doing their own work, provided limited direction for 
others based on technical skills or employer-specified 
standards. 

1. The Wagner Act gave “employee[s]” the right to 
organize and did not expressly exclude supervisors 
from its coverage. See Act of July 5, 1935, ch. 372, 
§ 2(3), 49 Stat. 450; HCR, 511 U.S. at 573. As a conse- 
quence, the Board wavered on the question whether 
supervisors could organize until it ultimately decided 
that they could in Packard Motor Car Co., 61 N.L.R.B. 
4, further decision, 64 N.L.R.B. 1212 (1945), enforced, 
157 F.2d 80 (6th Cir. 1946), aff ’d, 330 U.S. 485 (1947). 
See NLRB v. Bell Aerospace Co., 416 U.S. 267, 277 
(1974). Early in its administration of the Wagner Act, 

25 

however, the Board determined that, whether or not 
supervisors could organize in their own bargaining 
units, they could not be included in units composed of 
ordinary employees. See Third Annual Report of the 
National Labor Relations Board for the Fiscal Year 
Ended June 30, 1938, at 180 (1939). 

The Board therefore adopted the following definition 
in order to identify supervisory employees: 

[E]mployees who supervise or direct the work of 
employees [in the bargaining unit], and who have 
authority to hire, promote, discharge, discipline, or 
otherwise effect changes in the status of such em- 
ployees, or whose official recommendations concern- 
ing such action are accorded effective weight. 

Douglas Aircraft Co., 50 N.L.R.B. 784, 787 (1943). See 
Eighth Annual Report of the National Labor Relations 
Board for the Fiscal Year Ended June 30, 1943, at 57 & 

n.57 (1944) (describing Douglas Aircraft as setting 
forth “a general standard definition of supervisory em- 
ployees”). 

Under that definition, the Board consistently found 
that employees were not supervisors merely because, in 
addition to doing their own work, they exercised 
technical judgment to direct the work of less-skilled co- 
workers. For example, in Victor Chemical Works, 52 
N.L.R.B. 194, 199 (1943), the Board found that “key 
men” were not supervisors, even though they were 
“experienced employees” who spent part of their 
working time “instructing or directing one to six 
helpers, or less experienced workers” who had been 
“directed to rely on the judgment of key men in 
decisions relating to the treatment of the product in 
their machines.” The Board concluded that “the 
relationship between key men and employees with 

26 

whom they work” was “the relation between a skilled 
worker and his helpers or between an instructor and an 
inexperienced employee, whom he may be teaching.” 
Ibid. 

10 

The Board also found that employees were not super- 
visors when they directed other employees pursuant to 
employer-specified instructions or standards. For 
example, in Wilson & Co., 61 N.L.R.B. 105 (1945), the 
Board found that certain “steady-time checkers” were 
neither supervisors nor “part of management” where, 
in accordance with “loading slips made out by the 
foreman,” they “direct[ed] the manner in which the cars 
are loaded” by employees known as “car loaders.” Id. 
at 106-107. Similarly, in General Chemical Co., 64 

10 See also, e.g., New Jersey Worsted Mills, 63 N.L.R.B. 455, 457 
(1945) (finding “group leaders” in a wool mill not supervisors but 
rather “experienced workers” who spent “part of their time check- 
ing and assisting fellow employees placed under their direction”); 
Bunting Brass & Bronze Co., 58 N.L.R.B. 618, 619-620 (1944) 
(finding “set-up men” and “linemen” not supervisors where they 
directed the work of less-skilled machine operators and assured 
that the work was done correctly), aff ’d on further consideration, 
63 N.L.R.B. 818 (1945); Federal Shipbuilding & Drydock Co., 55 
N.L.R.B. 1438, 1439 (1944) (fact that “the chargemen direct and 
guide the work of the draftsmen and drafting room technicians in 
their sections, does not, of itself, elevate them to such supervisory 
rank as to warrant their exclusion from the unit”); Boardman Co., 
55 N.L.R.B. 105, 108 (1944) (finding employees who “work with 
and direct small crews” not supervisors where the directing em- 
ployees’ authority derived from “superior experience [that] en- 
ables them to guide others in the performance of their work”); 
Duval Tex. Sulphur Co., 53 N.L.R.B. 1387, 1390-1391 (1943) (chief 
electrician, motor mechanic, plant engineers and drillers who 
“work with helpers, and perforce direct and guide the work of their 
helpers” are not supervisors but “occupy positions comparable to 
that of master mechanics or journeymen in their respective 
crafts”). 

27 

N.L.R.B. 357 (1945), the Board found that skilled labo- 
ratory employees, who were “to see to it that optimum 
operating conditions prevail,” were not supervisors on 
the ground that they also may “direct the work of the 
production employees”; rather, the laboratory employ- 
ees were “technical experts of a type frequently 
included in bargaining units.” Id. at 361-362. 

11 

The Board’s decisions also indicated that whether 
employees were excludable from bargaining units of 
rank-and-file employees depended upon whether their 
work was “of a routine nature, not involving the 
exercise of managerial discretion” (Whitney Blake Co., 
66 N.L.R.B. 491, 494 (1946)) or instead required “a high 
degree of independent judgment” (Commonwealth 
Edison Co., 60 N.L.R.B. 1365, 1368-1369 (1945)). See 
also Phillips Petroleum Co., 61 N.L.R.B. 806, 812 (1945) 
(supervisory employee exercised “a considerable 
degree of judgment and discretion in supervising the 
work of other employees”). 

2. Section 2(11) was added to the NLRA as part of 
the Labor Management Relations Act of 1947 or Taft- 
Hartley Act, ch. 120, § 2(11), 61 Stat. 138, in order to 

11 See also Endicott Johnson Corp., 67 N.L.R.B. 1342, 1347 
(1946) (employees who “direct from one to six employees” and 
whose “duties are to keep production moving on schedule and to 
inspect and control the quality of work”); Bethlehem-Sparrows 
Point Shipyard, Inc., 65 N.L.R.B. 284, 286 (1946) (employees in 
shipyard who “coordinate and expedite the outfitting work on the 
ships, consulting the various craft foremen in order to insure that 
the work will progress smoothly and rapidly”); Richards Chem. 
Works, Inc., 65 N.L.R.B. 14, 16 (1945) (employees responsible for 
“see[ing] that the work is gotten out” under daily instructions 
issued by the production manager); Pittsburgh Equitable Meter 
Co., 61 N.L.R.B. 880, 882 (1945) (group leaders who, working under 
the foremen’s direction, “instruct and assign material to men who 
work under them in groups from 1 to 40”). 

28 

reverse the Packard rule that supervisory employees 
had a protected right to organize. See HCR, 511 U.S. 
at 573; Bell Aerospace, 416 U.S. at 279. As explained by 
the Senate Committee on Labor and Public Welfare, 
which crafted the language that, with slight modifica- 
tion, became Section 2(11), Congress’s purpose was to 
ensure an employer the undivided loyalty of its 
representatives, who, if they were afforded a protected 
right to join or form unions, might be subject to control 
by the same union as the employees they were 
supposed to be supervising on the employer’s behalf. 
S. Rep. No. 105, 80th Cong., 1st Sess. Pt. 1, at 4-5 
(1947). 

At the same time, however, Congress wanted to 
assure that its definition of “supervisor” would not em- 
brace individuals whom the Board had generally found 
to be employees under the Wagner Act, even though 
they exercised some supervisory authority. Thus, the 
Senate Committee explained: 

In drawing an amendment to meet this situation, 
the committee has not been unmindful of the fact 
that certain employees with minor supervisory 
duties have problems which may justify their inclu- 
sion in that 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 such action. 

S. Rep. No. 105, supra, at 4. 

To preserve its intended distinction between “minor 
supervisory employees” and persons vested with 

29 

“genuine management prerogatives,” the Senate Com- 
mittee defined “supervisor” as: 

[A]ny individual having authority, in the interest of 
the employer to hire, transfer, suspend, lay off, re- 
call, promote, discharge, assign, reward, or disci- 
pline other employees, or to adjust their grievances, 
or effectively to recommend such action if in con- 
nection with the foregoing the exercise of such 
authority is not of a merely routine or clerical na- 
ture, but requires the use of independent judgment. 

H.R. 3020, 80th Cong., 1st Sess. Tit. I, § 2(11) (1947) (as 
passed by Senate) (reprinted in Bell Aerospace, 416 
U.S. at 280 n.10). 

12 That language signaled Congress’s 

12 The Senate definition of “supervisor” prevailed over a differ- 
ent definition passed by the House, which would have categorized 
as supervisors a broader spectrum of employees, including lead- 
men and other minor supervisors. See Bell Aerospace, 416 U.S. at 
283. The Senate definition was narrower in this respect because, 
unlike the House definition, the Senate definition applied the 
“independent judgment” limitation to the whole range of supervi- 
sory functions. The House bill defined “supervisor” to include, 
inter alia, “any individual * * * who has authority, in the interest 
of the employer * * * to hire, transfer, suspend, lay off, recall, 
promote, demote, discharge, assign, reward, or discipline any indi- 
viduals employed by the employer, or to adjust their grievances, or 
to effectively recommend any such action.” H.R. 3020, 80th Cong., 
1st Sess. Tit. I, § 2(12)(A)(i) (1947) (as passed by House) (House 
Bill) (reprinted in Bell Aerospace, 416 U.S. at 279 n.9). That pro- 
vision, unlike the Senate definition, did not contain an “indepen- 
dent judgment” limitation. Although another provision of the 
House definition contained an “independent judgment” limitation, 
that provision concerned only employees having specified author- 
ity in regard to fixing wages earned by other employees. House 
Bill § 2(12)(A)(ii) (reprinted in 416 U.S. at 279 n.9). Thus, Congress 
used the independent judgment requirement to impose the dis- 

30 

intent essentially to incorporate the approach used by 
the Board to determine supervisory status under the 
Wagner Act, because it was an amalgam of the Board’s 
Douglas Aircraft test, 

13 and the “routine in nature”/ 
”independent judgment” principle articulated in other 
Board bargaining-unit decisions. See pp. 25-27, supra. 
Indeed, the Senate Committee underscored that, in 
fashioning its definition of supervisor, it “adopted the 
test which the Board itself has made in numerous cases 
when it has permitted certain categories of supervisory 
employees to be included in the same bargaining unit 
with the rank and file.” S. Rep. No. 105, supra, at 4. 

14 

On the Senate floor, Senator Taft, the sponsor of the 
Senate bill, reiterated that “[t]he definition in the bill is 
that which has been used by the National Labor 
Relations Board for the past 4 or 5 years.” 93 Cong. 
Rec. 4678 (1947). 

The Senate Committee’s definition of “supervisor” 
was altered only in one respect before enactment by 
Congress. On the Senate floor, Senator Flanders 
offered an amendment to add the phrase “or responsi- 
bly to direct them” immediately after the phrase “other 

tinction that it intended to draw between minor supervisors and 
true representatives of management. 

13 The Senate Committee’s definition listed several additional 
indicia of supervisory authority (such as authority to “transfer” 
and “recall”) that were encompassed within Douglas Aircraft’s 
catch-all category of authority to “otherwise effect changes in the 
status” of other employees. See p. 25, supra. 

14 The Senate Committee report cited with approval the Board 
decisions discussed in note 11, supra, which illustrate the principle 
that the direction of other employees in conformity with the 
employer’s instructions does not make the directing employee a 
supervisor, even if it requires him to use some judgment. S. Rep. 
No. 105, supra, at 4. 

31 

employees.” See 93 Cong. Rec. 4677 (1947). Senator 
Flanders explained that the 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.” Id. at 4677-4678 (emphasis added). Senator 
Taft immediately accepted the Flanders amendment, 
which in his view made no significant change to the 
definition of supervisor drafted by the Senate Commit- 
tee, and the amendment passed. See id. at 4678. 

15 

The Board’s interpretation of independent judgment 
furthers the purpose of Section 2(11), as described 
above, in two related ways: It gives effect to Con- 
gress’s intent to preserve the protections of the Act for 
employees who have only “minor supervisory duties” 
while excluding from coverage those who exercise 
“genuine management prerogatives.” S. Rep. No. 105, 
supra, at 4. And it comports with Congress’s intent to 

15 The Senate’s definition of supervisor was adopted by the 
House-Senate conference committee. H.R. Conf. Rep. No. 510, 
80th Cong., 1st Sess. 4 (1947). The Conference Report explained 
that “[t]he Senate amendment confined the definition of ‘supervi- 
sor’ to individuals generally regarded as foremen and persons of 
like or higher rank. The conference agreement, in the definition of 
‘supervisor,’ limits such term to those individuals treated as super- 
visors under the Senate amendment.” Id. at 35. In reporting the 
conference committee’s action to the Senate, Senator Taft likewise 
explained that “[t]he Senate amendment, which the conference 
ultimately adopted, is limited to bona fide supervisors. * * * The 
Senate amendment confined the definition of supervisor to indi- 
viduals generally regarded as foremen and employees of like or 
higher rank.” 93 Cong. Rec. 6442 (1947). See generally Bell Aero- 
space, 416 U.S. at 282. 

32 

incorporate the definition of supervisor that the Board 
used in administering the Wagner Act, which excluded 
from supervisory status employees who provided 
limited direction for others based on technical skills or 
employer-specified standards. 

D. The Board’s Interpretation Properly Accommodates 

The Act’s Coverage Of “Professional Employees” 

The Board’s interpretation of “independent judg- 
ment” also harmonizes Section 2(11)’s exclusion of su- 
pervisors with Section 2(12), which includes “profes- 
sional employees” within the coverage of the Act. See 
NLRB v. Hilliard Dev. Corp., 187 F.3d 133, 142-143 (1st 
Cir. 1999). Under the terms of Section 2(12), profes- 
sional employees, by definition, engage in “the consis- 
tent exercise of discretion and judgment.” 29 U.S.C. 
152(12)(a)(ii). See Leedom v. Kyne, 358 U.S. 184 (1958). 
The Act’s simultaneous exclusion of supervisors and 
inclusion of professional employees indicates that there 
is a distinction between the exercise of “independent 
judgment” and the exercise of “discretion and judg- 
ment.” By giving effect to that distinction, the Board’s 
interpretation of “independent judgment” preserves 
the coverage of professional employees mandated by 
the Act. 

When Congress provided coverage to professional 
employees, it was aware that professionals work with 
assistants. H.R. Conf. Rep. No. 510, 80th Cong., 1st 
Sess. 36 (1947) (definition of “professional employee” 
covers “such persons as legal, engineering, scientific 
and medical personnel together with their junior pro- 
fessional assistants”). Congress therefore could not 
have intended that this fact would prevent the cover- 
age of “professional groups such as * * * nurses” that 
Congress provided for in Section 2(12). S. Rep. No. 105, 

33 

supra, at 19. See also NLRB v. Res-Care, Inc., 705 
F.2d 1461, 1465 (7th Cir. 1983). 

Congress’s intent to cover nurses and other pro- 
fessionals would be frustrated, however, if “the con- 
sistent exercise of discretion and judgment” under 
Section 2(12) also constitutes “the use of independent 
judgment” under Section 2(11), because many profes- 
sional employees (such as lawyers, doctors, and nurses) 
customarily give judgment-based direction to the less- 
skilled employees with whom they work. In order to 
effectuate Congress’s intention to cover professional 
employees, the Board’s interpretation clarifies that the 
exercise of Section 2(11) “independent judgment” is not 
synonymous with the exercise of Section 2(12) “discre- 
tion and judgment.” Rather, a professional does not 
exercise “independent judgment” to the extent that her 
judgment is “indistinguishable from the professional 
judgment exercised by all [professionals in the same 
field].” Providence Hosp., 320 N.L.R.B. at 729-730. 

The Board’s interpretation is consistent with its 
traditional view, as described by this Court, 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.” NLRB v. Yeshiva Univ., 
444 U.S. 672, 690 (1980). Rather, “[o]nly if an em- 
ployee’s activities fall outside the scope of the duties 
routinely performed by similarly situated professionals 
will he be found aligned with management.” Ibid. Cf., 

e.g., cases cited in note 8, supra. See also HCR, 511 
U.S. at 583 (noting that, outside the health-care indus- 
try, the Board has drawn “a distinction between 
authority arising from professional knowledge and 
authority encompassing front-line management pre- 

34 

rogatives”). By interpreting “independent judgment” 
to reflect that distinction, the Board properly avoids 
reading Section 2(11) in a way that “would swallow up 
and displace almost the entirety of the professional- 
employee inclusion.” NLRB v. Hendricks County 
Rural Elec. Membership Corp., 454 U.S. 170, 185 
(1981). 

E. The Court Of Appeals Erred In Substituting Its Own 

Interpretation Of “Independent Judgment” For That 

Of The Board 

The Board’s interpretation of “independent judg- 
ment,” and its application of that interpretation to 
various “different categories of employees,” HCR, 511 
U.S. at 579, is a classic illustration of “the Board’s 
special function of applying the general provisions of 
the Act to the complexities of industrial life.” NLRB v. 
Erie Resistor Corp., 373 U.S. 221, 236 (1963). In ful- 
filling that function, the Board is entitled to “consider- 
able deference.” See Curtin Matheson, 494 U.S. at 786; 
see also Marine Eng’rs Beneficial Ass’n v. Interlake 
S.S. Co., 370 U.S. 173, 179 n.6 (1962) (Board has been 
afforded “a large measure of informed discretion” in 
determining when the “authority ‘responsibly to direct’ 
the work of others” requires a finding of supervisory 
status) (quoting NLRB v. Swift & Co., 292 F.2d 561, 563 
(1st Cir. 1961)). Because, as we have demonstrated, the 
Board’s interpretation of “independent judgment” is 
“rational and consistent” with the Act, the Sixth Circuit 
erred in substituting its own view for the Board’s. See 
Auciello Iron Works, 517 U.S. at 787-788; Curtin 
Matheson, 494 U.S. at 796; Fall River Dyeing & 
Finishing Corp., 482 U.S. at 42. 

As the Sixth Circuit has previously explained, its 
refusal to defer to the Board’s interpretation is based in 

35 

significant part on its belief that the Board’s inter- 
pretation of “independent judgment” replicates the 
same “false dichotomy” that this Court rejected in HCR 
between “acts taken in connection with patient care and 
acts taken in the interest of the employer.” Integrated 
Health Servs. v. NLRB, 191 F.3d 703, 711 (6th Cir. 
1999) (quoting HCR, 511 U.S. at 577). The Sixth Cir- 
cuit’s view, however, is based on an incorrect reading of 
HCR. 

As we have discussed at p. 15, supra, HCR rejected 
only the Board’s “in the interest of the employer” test 
for determining the supervisory status of nurses. 511 
U.S. at 574, 576. The Court made quite clear the 
limited reach of its holding: “our decision casts no doubt 
on Board or court decisions interpreting parts of § 2(11) 
other than the specific phrase ‘in the interest of the 
employer.’ ” Id. at 583. Indeed, the Court pointed out 
that the statutory phrase “independent judgment” is 
“ambiguous” and, therefore, that the Board is entitled 
to “ample room” in applying it. Id. at 579. The Court 
also recognized (without any indication of disapproval) 
that, in various industries, the Board has applied “a 
distinction between authority arising from professional 
knowledge and authority encompassing front-line man- 
agement prerogatives” in deciding whether employees 
exercise “independent” judgment. Id. at 583. 

The Court in HCR did not hold that the Board is 
foreclosed from fashioning an interpretation of Section 
2(11) that effectuates the statutory policy of ensuring 
coverage for “minor supervisory employees,” such as 
leadmen, and for professional employees. Rather, the 
Court held only that the Board’s “in the interest of the 
employer” test was an invalid means of effectuating 
that policy, because it was inconsistent with “the 
ordinary meaning of the phrase ‘in the interest of the 

36 

employer’ ” and with the Court’s precedents. 511 U.S. 
at 578. Because, as we have shown, the Board’s inter- 
pretation of “independent judgment” is entirely con- 
sistent with the statutory text 

17 the 
court of appeals erred in rejecting the Board’s inter- 
pretation. 

II. THE BOARD’S RULE REGARDING THE ALLO- 
CATION OF THE BURDEN OF PROVING SU- 
PERVISORY STATUS IS REASONABLE AND 
PERMISSIBLE UNDER THE ACT 

This case also involves the question whether the 
Board permissibly requires the party who alleges that 
an employee is excluded from the rights and protections 
afforded by the Act as a supervisor to bear the burden 
of proving the individual’s supervisory status. See, e.g., 
St. Alphonsus Hosp., 261 N.L.R.B. 620, 624 (1982), 

16 The court of appeals has repeatedly stated that “[i]t is per- 
fectly obvious that the kind of judgment exercised by registered 
nurses in directing . . . nurse’s aides in the care of patients * * * 
is not ‘merely routine.’ ” 
Integrated Health Servs., 191 F.3d at 711 

(quoting Beverly Cal. Corp. v. NLRB, 970 F.2d 1548, 1553 (6th Cir. 
1992)). Accord Mid-America Care Found. v. NLRB, 148 F.3d 638, 
641 (6th Cir. 1998); Grancare, Inc. v. NLRB, 137 F.3d 372, 376 (6th 
Cir. 1998); Caremore, Inc. v. NLRB, 129 F.3d 365, 370 (6th Cir. 
1997). That conclusion neither follows from the plain meaning of 
“routine” nor takes account of the statute’s use of the additional 
“ambiguous” term “independent judgment.” See p. 23, supra; 
HCR, 511 U.S. at 579. 

17 In HCR, the Court found the Board’s reliance on the phrase 
“in the interest of the employer” to be inconsistent with the 
Court’s reasoning in the Packard decision, in a respect that Con- 
gress did not change when it altered the Packard rule. 511 U.S. at 
578. As we have shown, see pp. 27-31, supra, in reacting to 
Packard, Congress also did not disturb, but instead endorsed, the 
Board’s established practice of affording the Act’s protections to 
leadmen and other minor supervisors. 

16 and precedent, 

37 

enforced mem., 703 F.2d 577 (9th Cir. 1983) (Table). 
The court of appeals rejected the Board’s rule and held 
instead that the Board “has the burden of proving that 
employees are not supervisors.” Pet. App. 15a (quoting 
Grancare, Inc. v. NLRB, 137 F.3d 372, 375 (6th Cir. 
1998)). Because the Board’s rule regarding the alloca- 
tion of the burden of proving supervisory status is rea- 
sonable and permissible under the Act, the court of 
appeals should have deferred to it. See NLRB v. 
Transportation Mgmt. Corp., 462 U.S. 393, 402-403 
(1983) (upholding Board’s allocation of burden of proof 
in another context). 

A. The Board’s Rule Accords With Principles Of Statutory 

Construction And Furthers The Purpose Behind The 

Act’s Exemption Of Supervisors 

The text of the Act does not in terms supply a rule 
that allocates the burden of proving supervisory status. 
In that circumstance, the Board has discretion to 
formulate an allocation rule, and the rule is entitled to 
judicial deference if it is reasonable and permissible 
under the Act. See Transportation Mgmt. Corp., 462 
U.S. at 403. Exercising its discretion, the Board has 
developed a rule that applies regardless whether the 
employer, the union, or the Board’s General Counsel is 
the party asserting a claim of supervisory status. 
Under the Board’s rule, for example, an employer must 
carry the burden when it defends against an unfair 
labor practice complaint by claiming that the employee 
against whom it allegedly discriminated is a supervisor. 
See, e.g., Ahrens Aircraft, Inc., 259 N.L.R.B. 839, 842 
(1981), enforced, 703 F.2d 23 (1st Cir. 1983). Likewise, a 
union must carry the burden when it challenges a ballot 
by claiming that the voter who cast the ballot is a 
supervisor. See, e.g., Bowne of Houston, Inc., 280 

38 

N.L.R.B. 1222, 1223 (1986). And the General Counsel 
must carry the burden when he alleges an individual’s 
supervisory status as part of his case. See, e.g., Hydro 
Conduit Corp., 254 N.L.R.B. 433, 441 (1981). Further- 
more, the Board applies the same rule to all industries 
subject to its jurisdiction. See, e.g., Commercial 
Movers, Inc., 240 N.L.R.B. 288, 290 (1979); Thayer 
Dairy Co., 233 N.L.R.B. 1383, 1387 (1977). 

The Board’s rule is reasonable and permissible under 
the Act. The text of the Act broadly defines “em- 
ployee” to mean “any employee,” but excepts from that 
coverage “any individual employed as a supervisor.” 
29 U.S.C. 152(3). See Sure-Tan, Inc. v. NLRB, 467 U.S. 
883, 891 (1984). As this Court has explained, “the gen- 
eral 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) (citing Javierre v. 
Central Altagracia, 217 U.S. 502, 507-508 (1910)). See 
also Raleigh v. Illinois Dep’t of Revenue, 120 S. Ct. 
1951, 1955 (2000) (“one who asserts a claim is entitled to 
the burden of proof that normally comes with it”); 
Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 291 (1959) 
(stating that “[t]he burden is, of course, upon respon- 
dents to establish that they are entitled to the benefit 
of the [statutory] exemption, since coverage apart from 
the exemption is admitted”). 

Applying the principle reflected in those cases to the 
NLRA, this Court has cautioned that “administrators 
and reviewing courts must take care to assure that 
exemptions from NLRA coverage are not so expan- 
sively interpreted as to deny protection to workers the 
Act was designed to reach.” Holly Farms Corp. v. 
NLRB, 517 U.S. 392, 399 (1996). The Board’s rule, 

39 

which places the burden of proof on the party claiming 
that individuals at issue are exempt from coverage as 
supervisors, adheres to that admonition. 

The Board’s rule also furthers the specific purpose 
behind the Act’s exemption for supervisors. As we 
have described in detail, see pp. 27-31, supra, Congress 
intended that the Act’s exclusion of supervisors from 
coverage would be limited, that the “employees [there- 
by] excluded from the coverage of the act be truly 
supervisory.” S. Rep. No. 105, supra, at 19. See also 
Bell Aerospace, 416 U.S. at 280-281, 283. The Board’s 
rule effectuates that intention by placing the burden of 
proving supervisory status upon those invoking the 
exemption. “In contrast, placing the burden of proof on 
the Board[, as the court of appeals did here,] presumes 
that all employees simply asserted by employers to be 
supervisors are exempt from the Act’s coverage until 
proven otherwise.” Grancare, 137 F.3d at 378 (Moore, 
J., concurring in the judgment). That approach would 
undermine Congress’s purpose to preserve the pro- 
tections of the Act for all employees except those who 
possess “genuine management prerogatives.” S. Rep. 
No. 105, supra, at 4. 

B. Practical Considerations Also Support The Board’s 

Rule 

The Board’s allocation rule also makes eminent sense 
because of the forum in which supervisory status under 
the Act is frequently litigated. Often, as in this case, 
the issue whether particular workers are supervisors 
arises in a representation proceeding rather than an 
unfair labor practice proceeding. 

18 Indeed, the Act 

18 A representation proceeding is a proceeding conducted by the 
Board in response to a petition requesting that the Board direct an 
election to determine whether a particular union is the representa- 

40 

contemplates that such factual questions concerning the 
scope and composition of the appropriate bargaining 
unit will be resolved in representation proceedings, and 
it therefore provides for administrative hearings to 
resolve issues raised by representation petitions. 29 
U.S.C. 159(c)(1). See Barre-Nat’l, Inc., 316 N.L.R.B. 
877, 878 (1995). See generally Boire v. Greyhound 
Corp., 376 U.S. 473 (1964); AFL v. NLRB, 308 U.S. 401 
(1940). 

Neither the Board nor its General Counsel has an 
advocacy role in representation proceedings. Ohio 
Masonic Home, Inc., 295 N.L.R.B. 390, 393 n.7 (1989). 
Because the Board is not a litigating party to those 
proceedings, it is inappropriate to place an evidentiary 
burden in those proceedings on the Board. Ibid.; Gran- 
care, 137 F.3d at 379 (concurring opinion). See also 29 
C.F.R. 101.20(c). Rather, it is reasonable for the Board 
to place the burden of proving an employee’s supervi- 
sory status on whichever actual party to the proceeding 
(the employer or the union) is asserting the claim that 
the employee is a supervisor. 

An employer who receives an adverse ruling from 
the Board on a supervisory claim may (as respondent 
did here) precipitate an unfair labor practice proceeding 
by refusing to bargain with the certified union. See 29 
U.S.C. 158(a)(5). 

19 Although the General Counsel is a 

tive of a particular bargaining unit of employees. See 29 U.S.C. 
159(c). 

19 Although there is no judicial review of the Board’s deter- 
mination in a representation proceeding, AFL, 308 U.S. at 411, 
there is judicial review of a final order of the Board in an unfair 
labor practice proceeding. 29 U.S.C. 160(f ). Congress’s purpose in 
establishing this indirect method by which employers may chal- 
lenge Board representation decisions in the courts was to forestall 
the delays that it feared would result if representation proceedings 

41 

party to an unfair labor practice proceeding, that cir- 
cumstance does not warrant—let alone compel—a rule 
requiring the General Counsel to bear the burden of 
proving in that proceeding that disputed individuals in 
the bargaining unit represented by a certified union are 
not supervisors. The General Counsel bears the burden 
of proving only the elements of an unfair labor practice 
—the existence of a Board certification in favor of the 
union, a proper bargaining demand issued by that union 
to the employer, and a refusal by the employer to honor 
the union’s demand. See, e.g., Unifirst Corp., 280 
N.L.R.B. 75, 76 (1986). In the absence of newly dis- 
covered evidence or special circumstances, the General 
Counsel is not required to relitigate matters that were 
already decided in the underlying representation case. 
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 
162 (1941); Unifirst Corp., 280 N.L.R.B. at 76. See also 
Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141 
(1971); 29 C.F.R. 102.67(f ). 

20 

In view of the reasonableness of the Board’s allo- 
cation rule, its consistency with the Act, and the practi- 
cal considerations that support it, other courts of 
appeals that have addressed the issue have upheld the 
Board’s rule. See Beverly Enters.-Mass., Inc. v. 
NLRB, 165 F.3d 960, 962 (D.C. Cir. 1999); New York 
Univ. Med. Ctr. v. NLRB, 156 F.3d 405, 412-413 (2d Cir. 
1998); Schnuck Markets, Inc. v. NLRB, 961 F.2d 700, 
703 (8th Cir. 1992); NLRB v. Bakers of Paris, Inc., 929 
F.2d 1427, 1445 (9th Cir. 1991). These rulings, of 

were directly reviewable. See Boire, 376 U.S. at 478-479; AFL, 308 
U.S. at 409-411 & nn. 2-3. 

20 Indeed, to require the General Counsel to relitigate such 
representation issues would defeat Congress’s objective of 
securing a prompt resolution of those issues. See note 19, supra. 

42 

course, comport with the guidance provided by this 
Court’s analogous precedent in Transportation Mgmt. 
Corp., which upheld the Board’s discretion to provide 
for a reasonable allocation of the burden of proof in 
another context. 462 U.S. at 403. The court of appeals 
erred in failing likewise to uphold the Board’s allocation 
rule here. 

III. THE RNs WORKING AT CANEY CREEK ARE 
NOT SUPERVISORS 

Applying its interpretation of “independent judg- 
ment” and the rule that the burden of proving an em- 
ployee’s supervisory status falls on the party asserting 
it, the Board reasonably concluded that the RNs work- 
ing at Caney Creek are “employees” rather than 
“supervisors.” The court of appeals therefore erred in 
refusing fully to enforce the Board’s order. 

A. Direction of LPNs and Rehabilitation Assis- 
tants. The RNs working at Caney Creek “are responsi- 
ble for medical services, particularly when there are no 
doctors in the building, which is frequently the case.” 
Pet. App. 16a; see J.A. 17. The RNs provide hands-on 
medical care to the residents, including providing 
medications, doing physical assessments of the resi- 
dents, and taking care of complaints, such as stomach 
aches or cuts. J.A. 52; see also J.A. 31 (RNs also con- 
duct treatment groups for residents). “[F]or the most 
part,” the RNs “work independently and by themselves 
without any subordinates.” Pet. App. 52a. 

The “RNs may occasionally request other employees 
to perform routine tasks, but they apparently have no 
authority to take any action if the employee refuses 
their directives.” Pet. App. 51a; J.A. 54. For example, 
the RN may direct an LPN to pass a particular medica- 
tion to a particular resident at a particular time, or 

43 

direct a rehabilitation assistant to assist her in treating 
a resident who is “really acting out.” See J.A. 18, 57-58, 
59-61. 

Neither the LPNs nor the rehabilitation assistants, 
however, report to the RNs; the LPNs report to the 
nursing coordinator, and the rehabilitation assistants 
report to the unit coordinators. J.A. 30, 34, 45, 61. 
Thus, in issuing directions, the RN acts as the more 
skilled member of a team. J.A. 51, 54, 57. The direc- 
tions are based on the RN’s experience and special 
professional competence and are circumscribed by the 
requirements of the resident’s treatment plan. See J.A. 
10-11, 12, 13, 46, 54, 70-75; p. 5 & note 1, supra. The 
Board therefore reasonably concluded that the RNs do 
not exercise “independent judgment” when they give 
directions to the LPNs and rehabilitation assistants. 
See Pet. App. 52a-53a; decisions cited on pp. 16-21 & 
notes 5-8, supra. 

B. Building Supervisor Responsibilities. The 
Board also reasonably concluded that the RNs do not 
exercise “independent judgment” in carrying out any 
supervisory functions in their roles as building supervi- 
sors. Pet. App. 53a. There is no formal job description 
for the building supervisor position, and it carries no 
extra compensation. J.A. 37. There is no policy as to 
which of the two RNs on duty on a particular shift is 
the building supervisor. J.A. 37, 42, 51. The same RN 
may be an ordinary nurse on one day of the week and 
the building supervisor on another, or an ordinary 
nurse at the start of her shift and the building supervi- 
sor later in her shift. J.A. 22-23, 36, 42. The RNs are 
not notified at what point during their shift they 
assume their building-supervisor responsibilities. J.A. 
50-51. 

44 

Although a memorandum issued by respondent 
states that the building supervisors are “in charge of 
the facility and all rehabilitation staff ” (J.A. 62), 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). The building supervisors do 
not consider themselves to be in charge of the reha- 
bilitation staff. J.A. 50. 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. 

Ensuring adequate staff coverage. The building su- 
pervisors’ responsibilities with regard to staff coverage 
are routine and do not involve the exercise of independ- 
ent judgment. 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 for the 
particular shift simply “[t]o make sure the head count is 
there.” J.A. 29; see J.A. 22, 27. Because virtually no 
judgment is involved in making such a prescribed nu- 
merical assessment, the Board could reasonably con- 
clude that the RNs do not act as supervisors in dis- 
charging this function. See Pet. App. 53a. 

As the court of appeals found, when the RNs serve as 
building supervisors, they have authority to “call 
employees into work” or “ask employees to remain on 
duty,” but they have no “authority to force an employee 
to work.” Pet. App. 16a; see J.A. 19-20, 38. The Board 
correctly found that, in carrying out those functions, the 
RNs follow a procedure established by respondent that, 
as a practical matter, leaves them little room for the 

45 

exercise of judgment or discretion. Pet. App. 50a, 51a, 
53a. J.A. 19-20, 28, 64. Moreover, the RN who testified 
in the representation proceeding stated that she calls 
one of the senior staff stipulated to be supervisors 
“before [she] even ask[s] somebody to stay over a 
couple hours.” J.A. 52; see also J.A. 53. The Board 
reasonably concluded that the discharge of this function 
does not make the RNs supervisors, particularly since 
they cannot require an employee to work. Pet. App. 
53a. See, e.g., Providence Ala. Med. Ctr. v. NLRB, 121 
F.3d 548, 552-553 (9th Cir. 1997) (finding similar duties 
“more clerical than supervisory”); NLRB v. Harmon 
Indus., Inc., 565 F.2d 1047, 1050-1051 (8th Cir. 1977) 
(supervisory status not conferred by authority to re- 
quest employees to work overtime on a voluntary 
basis); see also NLRB v. Adco Elec. Inc., 6 F.3d 1110, 
1118 (5th Cir. 1993) (employee not supervisor even 
though he requires other employees to work overtime 
on some occasions because he is “following company 
policy and [management’s] instructions that overtime 
should be used to complete a job rather than incurring 
travel expenses to complete the work on a subsequent 
day”). 

Service as highest ranking employee on site. The 
court of appeals deemed it significant that 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, however, “on call” 
at those times. Id. at 16a; J.A. 39; see also J.A. 52, 53. 
As the Board has repeatedly concluded in cases involv- 
ing various industries, the fact that an employee is the 
highest ranking employee on site for significant periods 
of time does not compel a finding that the employee is a 

46 

21 Nothing in the defini- 
tion of supervisor suggests that service as the most 
senior employee on site triggers supervisory status 
under the Act. 29 U.S.C. 152(11). See VIP Health 
Servs., Inc. v. NLRB, 164 F.3d 644, 649-650 (D.C. Cir. 
1999) (if an employee “do[es] not possess Section 2(11) 
supervisory authority, then the absence of anyone else 
with such authority does not then automatically confer 
it”); Res-Care, 705 F.2d at 1467 (“A night watchman is 
not a supervisor just because he is the only person on 
the premises at night, and if there were several 
watchmen it would not follow that at least one was a 
supervisor.”). 

Purported disciplinary authority. Finally, the Board 
reasonably concluded that respondent did not prove its 
contention that the RNs, acting in their capacity as 
building supervisors, have authority to discipline, or 
effectively to recommend discipline of, other employees. 
A memorandum issued by respondent stated that the 
RNs have authority to “write up” employees who do 
not “comply” with requests that they work their shifts 
on units that would otherwise be understaffed. Pet. 
App. 16a, 18a; J.A. 63. Further, as the court of appeals 
noted, respondent’s Administrator testified that the 
RNs, when acting as building supervisors, have author- 
ity “[to] send an employee home, but the nurse would 
then need to inform that employee’s immediate super- 
visor.” Pet. App. 17a; J.A. 20-21, 26. 

21 See, e.g., Washington Post Co., 254 N.L.R.B. at 204; Golden 
West Broadcasters-KTLA, 215 N.L.R.B. at 762; National Broad. 
Co., 160 N.L.R.B. at 1440-1441; Security Guard Serv., Inc., 154 
N.L.R.B. 8, 10 (1965), enforced, 384 F.2d 143 (5th Cir. 1967); 
William C. Meredith Co., 74 N.L.R.B. 1064, 1068 (1947). 

supervisor under Section 2(11). 

47 

The Board discounted the significance of the RNs’ 
putative authority to “write up” employees because 
there was “no evidence in the record that they have 
ever” done so. Pet. App. 51a; see J.A. 55-56. There was 
also no evidence in the record that the ability to “write 
up” another employee is a supervisory function that 
results in disciplinary action against the employee. To 
the contrary, the evidence suggested that any em- 
ployee can document a possible disciplinary infraction 
by another employee in an “incident report,” and the 
nursing or unit coordinator makes the decision whether 
discipline is appropriate. Pet. App. 51a; J.A. 14-15, 31. 
In the only instance in the record in which “an RN 
made a complaint about another employee it was 
apparently ignored” by management. Pet. App. 51a. 
The record evidence also established that the RNs had 
never exercised their purported authority to send 
employees home. See J.A. 26-27, 38, 55-56. 

Because respondent bears the burden of proving that 
the RNs are supervisors, see pp. 36-42, supra, the 
record supports the Board’s conclusion (Pet. App. 52a) 
that the RNs do not have actual authority to “disci- 
pline” other employees or “effectively to recommend 
such action.” 29 U.S.C. 152(11). See, e.g., Beverly 
Enters., 165 F.3d at 963 (“Statements by management 
purporting to confer authority do not alone suffice.”); 
Oil Workers Int’l Union v. NLRB, 445 F.2d 237, 243- 
244 (D.C. Cir. 1971) (“the nearly total lack of evidence 
of authority actually exercised” negated “naked 
designations of ‘paper power’ ”), cert. denied, 404 U.S. 
1039 (1972); NLRB v. Security Guard Serv., Inc., 384 
F.2d 143, 149 (5th Cir. 1967) (“A supervisor may have 
potential powers, but theoretical or paper power will 
not suffice.”); NLRB v. Southern Bleachery & Print 
Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958) (“em- 

48 

ployer cannot make a supervisor out of a rank and file 
employee simply by giving him the title and theoretical 
power to perform one or more of the enumerated 
supervisory functions”), cert. denied, 359 U.S. 911 
(1959). Cf. Health Care & Retirement Corp., 328 
N.L.R.B. No. 156 (described in note 7, supra). 

Accordingly, under established principles applied by 
the Board and the courts in the administration of the 
Act in a wide variety of employment contexts, the 
Board’s determination that RNs in this case are 
covered by the Act should have been upheld. 

CONCLUSION 

To the extent that the court of appeals held that the 
RNs employed by respondent are supervisors, the 
judgment of the court of appeals should be reversed. 

Respectfully submitted. 

LEONARD R. PAGE 

General Counsel 

JOHN H. FERGUSON 

Associate General Counsel 

NORTON J. COME 

Deputy Associate General 

Counsel 

JOHN EMAD ARBAB 

Attorney 
National Labor Relations 

Board 
SETH P. WAXMAN 

Solicitor General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

NOVEMBER 2000