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 

REPLY BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

LEONARD R. PAGE 

Acting General Counsel 
National Labor Relations 

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

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

Avon Convalescent Center, Inc., 200 N.L.R.B. 702 
(1972), enforced, 490 F.2d 1384 (6th Cir. 1974) ................ 
3 

Ballou Brick Co., 277 N.L.R.B. 41 (1985), enforce- 
ment denied in part, 798 F.2d 339 (8th Cir. 1986) ........... 
8 

Beverly Enters.—Ohio, 313 N.L.R.B. 491 (1993) .... 
3, 18, 19, 20 

Beverly Enters., Va., Inc. v. NLRB, 165 F.3d 290 
(4th Cir. 1999) (en banc) ....................................................... 
4 

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

Carlisle Engineered Products, Inc., 330 N.L.R.B. 

No. 189, 2000 WL 569474 (Apr. 28, 2000) .......................... 

5 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984) ....................................................... 

10 

Clark & Wilkins Indus., Inc., 290 N.L.R.B. 106 
(1988), aff ’d, 887 F.2d 308 (D.C. Cir. 1989), cert. 
denied, 495 U.S. 934 (1990) .................................................. 
11 

DST Indus., Inc., 310 N.L.R.B. 957 (1993) ......................... 
17 

Director, Office of Workers’ Comp. Programs v. 

Greenwich Collieries, 512 U.S. 267 (1994) ....................... 

13-14 

Elmhurst Extended Care Facilities, Inc., 329 

N.L.R.B. No. 55, 1999 WL 801516 (Sept. 30, 1999) ......... 

5 

FTC v. Morton Salt Co., 334 U.S. 37 (1948) ..................... 
13 

Gem Urethane Corp., 284 N.L.R.B. 1349 (1987) ................ 
8 

Great American Products, 312 N.L.R.B. 962 (1993) ......... 
11 

Health Care & Retirement Corp., 328 N.L.R.B. 

No. 156, 1999 WL 562096 (July 27, 1999) ........................... 

6 

Illinois Veterans Home at Anna L.P., 323 N.L.R.B. 
890 (1997) ................................................................................. 
5 

Legal Aid Soc’y of Alameda County, 324 N.L.R.B. 
796 (1997) ................................................................................. 
6 

Loyalhanna Health Care Assocs., 332 N.L.R.B. 

No. 86, 2000 WL 1670884 (Oct. 30, 2000) ........................... 

4 

MDI Commercial Servs., 325 N.L.R.B. 53 (1997) ............. 18 

(I) 

II 

Cases—Continued: Page 

NLRB v. Curtin Matheson Scientific, Inc., 
494 U.S. 775 (1990) ................................................................ 
10 

NLRB v. Grancare, Inc., 170 F.3d 662 (7th Cir. 
1999) ......................................................................................... 19 

NLRB v. Health Care & Retirement Corp. of 

America, 511 U.S. 571 (1994) .............................................. 
2, 10 

NLRB v. Town & Country Elec., Inc., 516 U.S. 85 
(1995) ........................................................................................ 
12, 13 

NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 
(1983) ........................................................................................ 13 

NLRB v. Truck Drivers Local Union No. 449, 
353 U.S. 87 (1957) ................................................................... 

10 

National Living Ctrs., Inc., 193 N.L.R.B. 638 (1971), 
enforced, 462 F.2d 575 (5th Cir. 1972) ............................ 
11, 19 

New York Univ. Med. Ctr. v. NLRB, 156 F.3d 
405 (2d Cir. 1998) ................................................................... 
12, 14 

Newton-Wellesley Hosp., 219 N.L.R.B. 699 (1975) ........... 
19 

Nymed, Inc., 320 N.L.R.B. 806 (1996) ................................. 
19 

Oil Workers Int’l Union v. NLRB, 445 F.2d 237 
(D.C. Cir. 1971), cert. denied, 404 U.S. 1039 (1972) ......... 
17 

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) ............ 
9 

Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 
(1941) ........................................................................................ 14 

Providence Hosp., 320 N.L.R.B. 717 (1996), enforced, 
121 F.3d 548 (9th Cir. 1997) ................................................. 

5, 6, 7 

Schnurmacher Nursing Home v. NLRB, 214 F.3d 260 
(2d Cir. 2000) .......................................................................... 
19 

Sherewood Enters., Inc., 175 N.L.R.B. 354 (1969) .............. 
19 

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .................. 
13 

Tree-Free Fiber Co., 328 N.L.R.B. No. 51, 1999 

WL 305507 (May 10, 1999) ................................................... 

5 

Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129 
(2d Cir.), cert. denied, 389 U.S. 839 (1967) ........................ 15 

III 

Cases—Continued: Page 

Vencor Hosp.-Los Angeles, 328 N.L.R.B. No. 167, 
1999 WL 606678 (Aug. 5, 1999) ........................................... 
4 

Venture Indus., Inc., 327 N.L.R.B. No. 165, 
1999 WL 161049 (Mar. 19, 1999) ......................................... 
8 

WBAI Pacifica Found., 328 N.L.R.B. No. 179, 
1999 WL 676522 (Aug. 26, 1999) ......................................... 
12 

Westwood Health Care Ctr., 330 N.L.R.B. No. 141, 
2000 WL 309119 (Mar. 20, 2000) ......................................... 
7-8 

Wing Mem’l Hosp. Ass’n, 217 N.L.R.B. 1015 (1975) ......... 
19 

Statutes: 

Act of July 5, 1935 (Wagner Act), Ch. 372, 49 Stat. 449 .... 

9 

National Labor Relations Act, 29 U.S.C. 151 
et seq. ....................................................................... 
6, 9, 12, 13, 14 

§ 2(3), 29 U.S.C. 152(3) .......................................................... 
12, 13 

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

§ 2(12), 29 U.S.C. 152(12) ...................................................... 
7 

§ 2(12)(a)(ii), 29 U.S.C. 152(12)(a)(ii) .................................. 
6, 7 

§ 8(a), 29 U.S.C. 158(a) .......................................................... 
11, 13 

Miscellaneous: 

American Heritage Dictionary of the English Language 
(3d ed. 1992) ............................................................................ 

12 
93 Cong. Rec. 4677-4678 (1947) .............................................. 
9 

H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 
(1947) ........................................................................................ 6-7 

S. Rep. No. 105, 80th Cong., 1st Sess. (1947) ................... 7, 9, 10 

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 

REPLY BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

1. The principal issue in this case is the reasonableness of 
the interpretation that the National Labor Relations Board 
(NLRB or Board) has given the phrase “independent judg- 
ment” in Section 2(11) of the National Labor Relations Act 
(NLRA or Act), 29 U.S.C. 152(11). As we explain in our 
opening brief, under the Board’s interpretation, an employee 
does not exercise “independent judgment” that triggers 
supervisory status under Section 2(11) when he uses 
ordinary professional or technical judgment in directing less- 
skilled employees to deliver services in accordance with 
employer-specified standards. NLRB Br. 11. The Board has 
applied that analysis over many years to both professional 
and non-professional employees in various employment 
contexts. Id. at 16-20. And, since this Court’s decision in 

(1) 

2 

NLRB v. Health Care & Retirement Corp. of America 
(HCR), 511 U.S. 571 (1994), the Board has applied the tradi- 
tional analysis in the health care field. NLRB Br. 21. 

Respondent’s primary contentions are that the Board’s 
interpretation of “independent judgment” creates a false di- 
chotomy between professional judgment and independent 
judgment (Br. 9-13), eliminates professionals as supervisors 
(Br. 17-21), and precludes supervisory status based on 
responsible direction of other employees (Br. 13-16). There 
is no merit to any of those contentions, all of which rest on an 
inaccurate characterization of the Board’s interpretation.1 

a. Respondent erroneously asserts (Br. 10) that, under 
the Board’s interpretation, “when a professional utilizes ‘pro- 
fessional or technical judgment’ in the responsible direction 
of employees, that person is not using ‘independent judg- 
ment.’ ” Respondent thus asserts that, in the Board’s view, 
the exercise of “professional judgment” is “always routine” 
(Br. 11) and “never involves the exercise of independent 
judgment” (Br. 16). Contrary to those assertions, the Board 
does not take the view that an employee who uses pro- 
fessional or technical judgment in performing one of the 
supervisory duties specified in Section 2(11) cannot also be 
exercising “independent judgment.” Indeed, in our opening 
brief, we identify several cases in which the Board found 
that professional or technical employees exercised “indepen- 
dent judgment.” NLRB Br. 19 n.7. 

1 Respondent also incorrectly asserts (Br. 9) that the Board’s inter- 
pretation is “a disguised attempt to revive the patient care analysis” that 
this Court rejected in HCR. As we have explained above, the Board’s 
interpretation is its long-standing, traditional analysis, which it applies in 
all employment contexts and to all types of employees, not just in the 
health care field or to nurses. Further, as we explain below, the Board’s 
interpretation turns on the extent of discretion exercised by the employee 
whose supervisory status is in question, not on the purpose for which he 
exercises that discretion. 

3 

As we have explained, the Board has long held that 
whether an employee is a supervisor depends on the degree 
of judgment or discretion exercised by the employee in the 
performance of any supervisory duty specified in Section 
2(11). When an employee, based on professional or technical 
skill or experience, exercises limited discretion to direct 
others in accordance with employer-specified standards (as 
expressed in blue-prints, established work procedures, and 
the like), the Board has found that the employee does not 
exercise “independent judgment” that triggers supervisory 
status. If, however, an employee exercises significant dis- 
cretion to direct others within only general confines, the 
Board has found that the employee exercises “independent 
judgment” under Section 2(11). See NLRB Br. 16-21 & nn. 
5-8. In short, the Board’s interpretation recognizes that an 
employee’s exercise of professional or technical judgment 
may also entail the exercise of “independent judgment” if the 
employee’s judgment is not significantly constrained by ex- 
ternal sources. The constraints may flow from a variety of 
sources, including written employer standards and estab- 
lished professional or technical routines or work procedures, 
but whether the employee exercises “independent judg- 
ment” turns on the extent of his discretion.2 

Amicus Society for Human Resource Management 
(SHRM) acknowledges (Br. 19 n.30) that “an employer may, 
in certain instances, so hamstring the exercise of a would-be 

2 Respondent suggests (Br. 10-11) that the Board’s interpretation is 
inconsistent with Avon Convalescent Center, Inc., 200 N.L.R.B. 702 
(1972), enforced, 490 F.2d 1384 (6th Cir. 1974), but that case has no pre- 
cedential value. Even at the time it was decided, which was during the 
period when the Board was applying the “in the interest of the employer” 
test for determining the supervisory status of nurses that this Court 
rejected in HCR, Avon was not in accord with the run of the Board’s 
decisions in the health-care field. For that reason, Avon was subsequently 
overruled. See Beverly Enters.—Ohio, 313 N.L.R.B. 491, 494 n.12 (1993). 

4 

supervisor’s judgment so as to prevent the exercise of ‘inde- 
pendent’ judgment,” but contends that “the facts of this case 
do not demonstrate any ‘employer-specified standards’ that 
so constrained the exercise of supervisory judgment.” If, by 
“hamstring,” SHRM means impose limitations so strict as to 
leave the employee no room for thought (see Beverly 
Enters., Va., Inc. v. NLRB, 165 F.3d 290, 303 (4th Cir. 1999) 
(en banc) (Phillips, J., dissenting)), we agree that respondent 
did not confine the judgment of the registered nurses (RNs) 
in this case to that extent. The Board, however, has pro- 
perly rejected the view that an employee is a supervisor 
whenever he exercises some judgment in directing other 
employees, because that view is not supported by the 
language or purpose of the Act. See NLRB Br. 22-32. The 
relevant inquiry under the Board’s interpretation of “inde- 
pendent judgment” is the degree to which the employee’s 
judgment is limited, and the facts of this case show that 
respondent significantly restricted the RNs’ discretion. See 
id. at 42-45. 

SHRM is also mistaken in contending (Br. 19 n.30) that 
the Board has, in practice, applied its interpretation to find 
that nurses do not exercise “independent judgment” even 
absent external constraints on their discretion. In the cases 
cited by SHRM (ibid.) in support of that contention, the 
discretion of the employees at issue was in fact limited by 
external constraints, such as employer standards, patient 
care plans, and professional routines.3 Other cases since 

3 See Loyalhanna Health Care Assocs., 332 N.L.R.B. No. 86, 2000 WL 
1670884, *3 (Oct. 30, 2000) (nurses oversaw work of aides involving “rou- 
tine aspects of patient care” pursuant to “rules and regulations governing 
long-term care facilities” and patient “care plans”); Vencor Hosp.-Los 
Angeles, 328 N.L.R.B. No. 167, 1999 WL 606678, *2, *5 (Aug. 5, 1999) 
(nurses exercised only “limited” assignment authority because assign- 
ments were based on patient needs as reflected in the “patient’s plan of 
care” and “dictated by which team member has the obvious required 

5 

HCR in which the Board has found employees not to be 
supervisors have involved similar constraints.4 

b. A proper understanding of the Board’s interpretation 
of “independent judgment” reveals that there is no basis for 
respondent’s assertion (Br. 18) that the interpretation “will 
virtually eliminate professionals as supervisors.” Under the 
Board’s interpretation, a nurse or other professional (just 
like any other employee) may be found to be a supervisor if 
she performs one of the listed supervisory functions with 
sufficient discretion to constitute independent judgment. 

skill”; nurses gave directions regarding only “simple tasks” or the “proper 
method” for performing recurring procedures); Providence Hosp., 320 
N.L.R.B. 717, 730-733 (1996) (charge nurses’ “limited authority” to assign 
other RNs was constrained by monthly schedules, the need to “check with 
the shift coordinator,” and reliance on the practice of asking for volunteers 
and using “rotational lists”; their monitoring of the work of other RNs and 
intervention in “acute situation[s]” was required by “state practices” and 
was a “routine function * * * shared by all RNs”), enforced, 121 F.3d 548 
(9th Cir. 1997). Elmhurst Extended Care Facilities, Inc., 329 N.L.R.B. 
No. 55, 1999 WL 801516, *3-*4 (Sept. 30, 1999), addressed the different 
issue whether nurses who filled out evaluation forms concerning aides 
“effectively recommend[ed]” their retention or reward. 

4 See, e.g., Carlisle Engineered Products, Inc., 330 N.L.R.B. No. 189, 
2000 WL 569474, *1 (Apr. 28, 2000) (processors did not exercise “indepen- 
dent judgment” in assigning work and directing operators to change 
duties because directions were “based on commonsense efficiency and job 
priorities set by the Employer”); Tree-Free Fiber Co., 328 N.L.R.B. No. 
51, 1999 WL 305507, *7 (May 10, 1999) (team leader’s assigning and 
prioritizing work for team members was not “marked by independent 
judgment” but entailed “routine responses to predictable, recurring work- 
assignment issues”); Illinois Veterans Home at Anna L.P., 323 N.L.R.B. 
890, 891 (1997) (nurses do not exercise “independent judgment” in assign- 
ing and directing aides when “generally [aides] are assigned to the halls 
where they previously had been working to provide continuity in care,” 
the tasks performed “are set by a worksheet setting forth the care plan for 
each resident,” and, “[i]f any special tasks arise during a shift, * * * the 
[nurse] will direct whoever is available to perform the task”). 

6 

See, e.g., Health Care & Retirement Corp., 328 N.L.R.B. No. 
156, 1999 WL 562096, *2 (July 27, 1999) (nurses found to be 
supervisors because they “exercise independent judgment 
when disciplining [aides], for example, by determining what 
category to classify a given infraction of the Employer’s 
rules and to take the appropriate action”); Legal Aid Soc’y of 
Alameda County, 324 N.L.R.B. 796, 796 (1997) (attorney 
found to be supervisor because she possessed independent 
“authority to evaluate and effectively recommend retention 
and termination of the paralegals in her unit”). 

Although the Board’s approach does not eliminate pro- 
fessionals as supervisors, the approach advocated by respon- 
dent would exclude most professional employees from the 
rights and protections of the Act. Respondent contends (Br. 

11) that a “professional[’s] exercise[] [of] discretion and judg- 
ment” (which is inherent in his status as a professional under 
the Act, 29 U.S.C. 152(12)(a)(ii)) “is the essence of indepen- 
dent judgment.” Thus, in respondent’s view, professionals 
exercise Section 2(11) “independent judgment” whenever 
they assign or direct other employees. See also Resp. Br. 20 
& n.6. If, as respondent contends, a professional necessarily 
exercises “independent judgment” whenever he gives any 
direction to less-skilled employees, then the Act’s express 
coverage of professionals would effectively be nullified 
because most professionals work with assistants.5 As we 
have explained (NLRB Br. 32-33), when Congress decided to 
cover professional employees, it was aware that most of 
them routinely work with assistants. H.R. Conf. Rep. No. 

5 Moreover, the notion that all assignment and direction necessarily 
involves independent judgment is inconsistent with the realities of the 
workplace. See, e.g., Providence Hosp., 320 N.L.R.B. at 732 (noting that 
“[i]t does not require much judgment to decide that, if there is one aide, 
the aide covers the entire unit, or if there are two aides, the unit is split 
between them”). 

7 

510, 80th Cong., 1st Sess. 36 (1947). Congress therefore 
could not have intended that this fact would suffice to pre- 
vent the coverage of “professional groups such as * * * 
nurses” provided for in Section 2(12). S. Rep. No. 105, 80th 
Cong., 1st Sess. 19 (1947). 

c. Respondent also errs in contending (Br. 14) that the 
Board’s interpretation of “independent judgment” renders 
meaningless Section 2(11)’s provision that an employee may 
be a supervisor by virtue of his authority “responsibly to 
direct” other employees. Contrary to respondent’s conten- 
tion, nothing about the Board’s interpretation dictates that 
“only a nurse who performs * * * functions other than 
responsibly directing employees, can qualify as a 
supervisor.” Ibid. Indeed, because the “independent judg- 
ment” requirement (and the Board’s interpretation of that 
requirement) applies with equal force whichever supervisory 
function the employee exercises, it is difficult to understand 
why the interpretation would preclude supervisory status 
based on one function but not others. 

In practice, of course, “an employee who exercises inde- 
pendent judgment * * * in directing other employees is 
likely to have been delegated substantial [other] authority 
by the employer to carry out directions to those employees.” 
Providence Hosp., 320 N.L.R.B. at 728 n.25. Because an 
employee’s status as a supervisor is sometimes more clearly 
established based on that other authority, the Board has 
frequently found it unnecessary to reach the question 
whether the employee is a supervisor because he also exer- 
cises independent judgment in responsibly directing other 
employees.6 See, e .g ., Westwood Health Care Ctr., 330 

6 The Board also has elected “not to develop a full analysis of the term 
‘responsibly to direct’ in the abstract.” Providence Hosp., 320 N.L.R.B. at 
729. And, for reasons we have noted (NLRB Br. 21-22 n.9), this case does 

8 

N.L.R.B. No. 141, 2000 WL 309119, *6 & n.11 (Mar. 20, 2000) 
(unnecessary to decide “whether [nurses] had the authority 
under Sec. 2(11) to responsibly direct other employees” 
given finding that they possessed “authority to discipline 
employees within the meaning of Section 2(11)”); Venture 
Indus., Inc., 327 N.L.R.B. No. 165, 1999 WL 161049, *3 & 

n.11 (Mar. 19, 1999) (unnecessary to decide whether super- 
visors “also have the authority to assign and direct work and 
effectively recommend the discharge of employees” given 
finding that they “possess supervisory authority within the 
meaning of Section 2(11) of the Act to discipline employees 
and to make effective recommendations regarding” hiring). 
That the Board often rests its findings of supervisory status 
on other grounds does not, however, mean that employees 
cannot be classed as supervisors based on authority respon- 
sibly to direct other employees. On the contrary, the Board 
has on several occasions found employees to be supervisors 
based on responsible direction. See NLRB Br. 19 n.7.7 
Respondent further errs in asserting (Br. 14-16) that the 
Board’s interpretation of “independent judgment” is incon- 
sistent with comments made by Senator Flanders when he 

not present the issue of the proper interpretation of “responsibly to di- 
rect.” 

7 See also, e.g., Gem Urethane Corp., 284 N.L.R.B. 1349, 1349, 1359- 
1360 (1987) (employee who had “considerable discretionary authority” 
over the other employees was a supervisor, but employees whose direc- 
tion involved only “routine directions given by a more experienced 
worker” and who made assignments and ensured the quality of the 
product but “operated within narrow and circumscribed confines” “in 
accordance with a work order” prepared by management were not super- 
visors); Ballou Brick Co., 277 N.L.R.B. 41, 62 (1985) (employee who, 
“without consultation with higher management,” assigned other em- 
ployees to various tasks and directed “when they should start, and when 
they should stop * * * used independent judgment” and was therefore a 
supervisor), enforcement denied in part on other grounds, 798 F.2d 339 
(8th Cir. 1986). 

9 

proposed adding the term “responsibly to direct” to the Act. 
Senator Flanders explained that his amendment brought 
within the supervisory category persons “above the grade of 
‘straw bosses, lead men, set-up men, and other minor super- 
visory employees,’ as enumerated in the [Senate Committee] 
report,” who, although lacking authority to make “effective” 
changes in the status of subordinate employees, are vested 
with substantial “managerial duties.” 93 Cong. Rec. 4677- 
4678 (1947) (emphasis added). Senator Flanders gave no 
indication that he intended the amendment also to bring 
within the supervisory category the “minor supervisory em- 
ployees” who, consistent with the Board’s administration of 
the Wagner Act, were excluded from the Senate Com- 
mittee’s definition of supervisor, despite the fact that they, 
in addition to performing their own work, provided limited 
direction for others based on technical skills or employer- 
specified standards. See S. Rep. No. 105, supra, at 4; NLRB 
Br. 24-32. 

Senator Flanders wanted to clarify that the definition of 
supervisor includes an individual in charge of a “depart- 
ment” who does no hands-on work but, using “personal 
judgment[,] * * * determines under general orders what 
job shall be undertaken next and who shall do it.” 93 Cong. 
Rec. at 4677-4678. Those responsibilities are similar to the 
duties of the industrial “foremen” in the Packard case, which 
Congress sought to overrule by enacting Section 2(11). See 
Packard Motor Car Co., 61 N.L.R.B. 4, 22-23, further de- 
cision, 64 N.L.R.B. 1212 (1945), enforced, 157 F.2d 80 (6th 
Cir. 1946), aff ’ d, 330 U.S. 485 (1947). 

The duties of the RNs 

in this case are not comparable to those of foremen; rather, 
the RNs perform hands-on medical treatment and give 
limited direction to other members of their teams, based on 
their experience and special competence, pursuant to the 

10 

requirements of the residents’ treatment plans. See NLRB 
Br. 42-43.8 

d. As a final argument against the Board’s interpretation 
of “independent judgment,” respondent contends (Br. 21) 
that the interpretation is not entitled to deference because 
the Board “has engaged in blatant manipulation of the 
statute to further policy.” Contrary to that contention, the 
Board has attempted to give concrete meaning to the term 
“independent judgment”, which this Court has described as 
“ambiguous.” See HCR, 511 U.S. at 579. As we have 
explained above and in our opening brief, the Board’s inter- 
pretation is longstanding, widely applied, and fully con- 
sistent with the language, structure, and purpose of the 
NLRA. Moreover, the very reason that this Court accords 
“considerable deference” (NLRB v. Curtin Matheson Scien- 
tific, Inc., 494 U.S. 775, 786 (1990)) to the Board’s inter- 
pretations of the Act is that the Board has been charged by 
Congress with the “often difficult and delicate responsi- 
bility” “to effectuate national labor policy.” NLRB v. Truck 
Drivers Local Union No. 449, 353 U.S. 87, 96 (1957). See 
also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 
467 U.S. 837, 843 (1984) (“The power of an administrative 
agency to administer a congressionally created . . . 
program necessarily requires the formulation of policy and 
the making of rules to fill any gap left, implicitly or explicitly, 

8 When an employee is vested with significant discretion to direct 
other employees within only “general orders,” as described by Senator 
Flanders, the Board has found that the employee exercises “independent 
judgment” that triggers supervisory status. See cases cited at NLRB Br. 
19 n.7 and note 7, supra. Because the Board’s approach classes as super- 
visors all those who exercise “genuine management prerogatives,” S. Rep. 
No. 105, supra, at 4, respondent’s claim (Br. 16-17) that employers will be 
deprived of “loyal supervisors” is unfounded. 

11 

by Congress.”). There is no cause to second guess the 
Board’s implementation of that responsibility here.9 

2. The second question presented by this case is whether 
the Board permissibly requires the party who alleges that an 
employee is a supervisor to prove the individual’s super- 
visory status. Respondent contends (Br. 24-26) that the 
Board’s General Counsel should bear the burden of proving 
that the individual is not a supervisor. Respondent reasons 
(Br. 24-25) that “proving that a particular individual is an 
‘employee’ is an element of the claim against the employer” 
in an unfair labor practice case under Section 8(a) of the Act, 
29 U.S.C. 158(a). From that premise, respondent asserts 
(Br. 25) that “[b]ecause the term ‘employee’ is defined by the 

9 In an effort to demonstrate that the Board has not applied its inter- 
pretation of “independent judgment” consistently, respondent cites (Br. 

23) five Board decisions. Two of those decisions have been overruled, and 
the other three cases are fully consistent with the Board’s current inter- 
pretation of independent judgment. In Great American Products, 312 
N.L.R.B. 962 (1993), the employee found to be a supervisor “assigned 
work, issued oral warnings, transferred employees among machines and to 
other departments, granted time off, and effectively recommended that 
employees be tried in other departments.” Id. at 962. The Board ex- 
pressly affirmed the ALJ’s determination that the employee “exercised 
independent judgment in the performance of those functions” and “[was] 
not just a skilled leadman.” Ibid. That determination was based in part on 
evidence that the employee in question authorized another employee to 
take time off without consulting other management. Id. at 964. In Clark 
& Wilkins Industries, Inc., 290 N.L.R.B. 106 (1988), aff ’d, 887 F.2d 308 
(D.C. Cir. 1989), cert. denied, 495 U.S. 934 (1990), the employee found to 
be a supervisor “decide[d] when other employees [were] to work at the 
site and the work they [were] to perform” and had “authority to change 
the work employees [were] doing * * * without prior consultation with 
[other management].” Id. at 109. Finally, in National Living Centers, 
Inc., 193 N.L.R.B. 638, 639 (1971), enforced, 462 F.2d 575 (5th Cir. 1972) 
(Table), the employee found to be a supervisor had “discretionary” author- 
ity to “grant time off ” and “effectively recommend[ed] discharges and 
transfers.” 

12 

Act to exclude supervisors * * * the distinction between 
‘employees’ and ‘supervisors’ is an element of the Board’s 
case.” Respondent’s conclusion does not follow from its 
premise, however, because the question whether an individ- 
ual is an “employee” under the Act is separate from, and 
does not depend on, the question whether that individual is a 
“supervisor.” 

As this Court has explained, the definition of “employee” 
in Section 2(3) of the Act, 29 U.S.C. 152(3), “seems to 
reiterate the breadth of the ordinary dictionary definition.” 
NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 90 (1995). 
Thus, “employee” encompasses any “person who works for 
another in return for financial or other compensation.” Ibid. 
(quoting American Heritage Dictionary of the English 
Language 604 (3d ed. 1992)). In an unfair labor practice case, 
the Board’s General Counsel bears the burden of proving 
that the individuals seeking relief are “employees” in that 
sense, to the extent that the issue is in controversy (and was 
not litigated in an antecedent representation proceeding (see 
NLRB Br. 41; pp. 14-15, infra)). 

10 

Whether such “employees” are “supervisors,” however, is 
a separate question. The answer to that question does not 
depend on, and is analytically distinct from, whether they 
are “employees.” See New York Univ. Med. Ctr. v. NLRB, 
156 F.3d 405, 413 (2d Cir. 1998) (explaining that the Board 
had carried its burden of proving that the disputed indi- 
viduals “are employees of NYU Medical Center,” but “they 
may or may not also be supervisors,” a status that the em- 
ployer bears “the burden of establishing”). As we have 

10 It is evident from the record that the registered nurses at issue in 
this case meet this definition of “employee,” and their status has not been 
challenged by respondent. Cf., e.g., WBAI Pacifica Found., 328 N.L.R.B. 
No. 179, 1999 WL 676522, *6 (Aug. 26, 1999) (finding certain unpaid staff 
workers not “employees” under Section 2(3)). 

13 

explained (NLRB Br. 38), the text of Section 2(3) casts “any 
individual employed as a supervisor” as an exception from 
the broad definition of “employee.” See Sure-Tan, Inc. v. 
NLRB, 467 U.S. 883, 891 (1984); see also Town & Country 
Elec., 516 U.S. at 90 (noting that the Act’s definition of 
employee “contains a list of exceptions”). If an “employee” is 
also a “supervisor,” then the prohibitions against unfair labor 
practices contained in Section 8(a), which would otherwise 
constrain the employer, do not apply. Accordingly, if the em- 
ployer contends that individuals shown by the General 
Counsel to be “employees” are also “supervisors,” the em- 
ployer properly should bear the burden of proving that 
claim. As this Court has explained, “the general rule of 
statutory construction [is] that the burden of proving justifi- 
cation or exemption under a special exception to the pro- 
hibitions of a statute generally rests on one who claims its 
benefits.” FTC v. Morton Salt Co., 334 U.S. 37, 44-45 
(1948). 

11 See also NLRB v. Transportation Mgmt. Corp., 462 
U.S. 393 (1983) (Board can require employer to prove a fact 
that Board reasonably construes as an affirmative defense to 
an unfair labor practice charge). 

Amicus American Health Care Association (AHCA) mis- 
takenly contends (Br. 7-10) that construing supervisory 
status as an affirmative defense in an unfair labor practice 
case and placing the burden of proving that status on the 
employer is not consistent with Director, Office of Workers’ 
Compensation Programs v. Greenwich Collieries, 512 U.S. 

11 Amicus American Health Care Association seeks to avoid the force 
of that principle by contending (Br. 16), based on the legislative history of 
Section 2(11), that “ ‘supervisory status’ is not an exemption from the Act, 
but an additional protected classification under the Act.” But neither that 
history nor the statutory text supports its contention. Moreover, if Con- 
gress had wished to depart from the long-standing rule of statutory con- 
struction reiterated in Morton Salt, Congress could have provided a 
different allocation rule in the text of the Act, but it did not. 

14 

267 (1994). In Greenwich Collieries, id. at 276-278, the Court 
explained that the Board’s allocation of the burden of 
proof in Transportation Management was permissible be- 
cause “the NLRB first required the employee to persuade it 
that antiunion sentiment contributed to the employer’s de- 
cision,” and “[o]nly then did the NLRB place the burden of 
persuasion on the employer as to its affirmative defense” 
that it would have fired the employee for permissible 
reasons in any event. Likewise, in an unfair labor practice 
case, the employer is required to bear the burden of proving 
that individuals are supervisors only after the General 
Counsel has proved that the individuals are “employees” as 
defined in Town & Country (if that question is in dispute). 
See New York Univ. Med. Ctr., supra. Placing the burden of 
proving supervisory status on the employer in those 
circumstances is fully consistent with Greenwich Collieries. 

AHCA also errs in contending (Br. 22) that, even when (as 
in this case) the supervisory issue has already been resolved 
in a representation proceeding, the same issue must be 
redetermined if the employer precipitates an unfair labor 
practice proceeding by refusing to bargain with the certified 
union. That contention—which would tend to prolong labor 
disputes, contrary to the Act’s basic purpose—ignores the 
settled principle that, in the absence of newly discovered 
evidence or special circumstances, the General Counsel is not 
required to relitigate matters already decided in the under- 
lying representation case. See Pittsburgh Plate Glass Co. v. 
NLRB, 313 U.S. 146, 162 (1941); see also NLRB Br. 41. 
Although AHCA seeks to avoid the force of that rule by 
suggesting (Br. 22) that a purported “lack of procedural safe- 
guards” casts doubt as to whether “supervisory status is 
ever truly ‘litigated’ ” in representation cases, that sug- 

15 

12 Moreover, even if relitigation of 
matters already decided in representation cases were re- 
quired, the Board’s General Counsel would not bear the 
burden of proving supervisory status in that relitigation, for 
the reasons we have explained above. See pp. 12-14, supra. 

3. a. In our opening brief, we explain that the Board, 
applying its interpretation of “independent judgment” and 
the proper allocation of the burden of the proof, reasonably 
concluded that respondent’s RNs are not “supervisors.” See 
NLRB Br. 42-48. Respondent, however, contends (Br. 28- 

36) that the RNs are supervisors even under the Board’s 
interpretation of “independent judgment.” That contention 
rests primarily on job duties that the RNs purportedly 
perform in their capacity as “building supervisors.” See, e.g., 
Resp. Br. 28, 30. Respondent’s contention is not supported 
by the record and fails to take into account that respondent 
bears the burden of proving the RNs’ supervisory status. 

13 

gestion is without basis. 

Respondent asserts (Br. 35) that the building supervisors 
“visit the units to check the coverage and, if necessary, 
determine in their judgment which employees to move from 
one unit to another.” But the record evidence that respon- 

12 AHCA complains (Br. 21) that the Regional Director, rather than 
the hearing officer who “hears the evidence[,] * * * make[s] de facto 
credibility determinations insofar as he resolves testimonial conflicts by 
finding the facts to be as one side or the other posits.” However, it is 
settled that due process does not require that “the decider must actually 
hear the witnesses or be furnished a report on their credibility” in Board 
representation proceedings. Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129, 
132-134 (2d Cir.), cert. denied, 389 U.S. 839 (1967). 

13 To the extent respondent’s claim that the RNs are supervisors is 
premised on their direction of other employees (Br. 36), we have already 
explained that the RNs provide only limited direction to other members of 
their teams, based on their experience and special competence, pursuant 
to the requirements of the resident’s treatment plan. See pp. 9-10, supra; 
NLRB Br. 42-43. 

16 

dent cites (Br. 3, 35) does not demonstrate that the building 
supervisors exercise any such judgment. See J.A. 18-19, 63; 
Tr. 147, 155. To the contrary, respondent’s staffing policies 
specify the minimum number of employees necessary to 
cover a given shift. J.A. 23-24, 28-29. The building super- 
visors transfer employees from one unit to another simply 
“[t]o make sure the head count is there.” J.A. 29; see J.A. 22, 

27. The record does not establish the basis on which the 
building supervisors select the transferees. 

Respondent also claims (Br. 35) that the building super- 
visors have authority to “increase the staffing level by 
arranging coverage from the preceding shift and/or by call- 
ing off-duty employees” in the event that “a problem arises 
with a resident or in the case of weather emergencies.” That 
contention, however, is factually incorrect. The record 
establishes that the nurses do not have independent dis- 
cretion to staff the facility at a higher level than prescribed 
by respondent. See J.A. 22, 23-24, 27-29. Neither the Board 
nor the court of appeals found otherwise, and the evidence 
cited by respondent does not support respondent’s claim. 

14 

There is also no support for respondent’s assertion (without 
citation to the record) (Br. 28) that the building supervisors 
“assign overtime.” Indeed, the Board made, and the court of 
appeals accepted, the contrary finding that they do not have 
authority to compel employees to work. Pet. App. 16a, 51a; 
see J.A. 38. As we have explained, the building supervisors’ 
actual responsibilities regarding staff coverage are routine 

14 In the testimony cited by respondent, its Administrator explained 
that the building supervisors “can situationally ask for an increase,” for 
example, “if we have a problem where we need special supervision of a—of 
a resident.” J.A. 24. However, the Administrator testified that, in that 
event, the building supervisors “would—they would call the person on call 
and ask for additional approval.” Ibid. 

17 

and do not involve the exercise of independent judgment. 
See NLRB Br. 44-45. 

Respondent further asserts (Br. 35) that the building 
supervisors “are responsible for overseeing all safety and 
resident issues that occur.” However, the testimony on 
which respondent relies (J.A. 16-17) does not indicate which 
(if any) of the supervisory functions listed in Section 2(11) 
the building supervisors exercise, using independent judg- 
ment, in discharging this purported function. Indeed, the 
court of appeals did not rely on that responsibility to support 
its (mistaken) holding that the RNs are supervisors. See 
Pet. App. 18a-19a. 

Finally, respondent relies (Br. 35) on the purported 
authority of the building supervisors to “write up em- 
ployees” and “to send an employee home” for misconduct. 
As our opening brief explains, however, the Board properly 
concluded that respondent failed to prove that the building 
supervisors actually have that authority. See NLRB Br. 46- 

48. Respondent contends (Br. 40) that, in reaching that con- 
clusion, the Board “disregarded” several company memo- 
randa and ignored the principle that “[i]t is the existence of 
authority that counts under the statute, and not the fre- 
quency of its exercise.” The Board, however, adheres to the 
principle cited by respondent (see, e.g., DST Indus., Inc., 310 
N.L.R.B. 957, 958 (1993)), and did not “disregard” respon- 
dent’s memoranda. Rather, the Board considered the docu- 
ments but discounted their significance, considered in light 
of the full record, under the equally settled principle that 
“the nearly total lack of evidence of authority actually exer- 
cised” may negate “naked designations of ‘paper power.’ ” 
Oil Workers Int’l Union v. NLRB, 445 F.2d 237, 243-244 
(D.C. Cir. 1971), cert. denied, 404 U.S. 1039 (1972). See 
Capital Transit Co., 114 N.L.R.B. 617, 619 (1955) (“where 
the issue is the actual existence of a supervisory power, the 
absence of any exercise of authority may negative its exis- 

18 

tence”); NLRB Br. 47-48. Because the record establishes 
that the building supervisors never exercised the discipli- 
nary authority ostensibly vested in them by the memoranda, 
and because other evidence suggests that they lack such 
authority, the Board reasonably declined to find the RNs to 
be supervisors. See Pet. App. 50a-52a; J.A. 14-15, 26-27, 31, 
38, 55-56; NLRB Br. 47. 

15 

b. Finally, respondent mistakenly contends that the RNs 
must be classed as supervisors because they are the most 
senior employees on site for substantial periods (Br. 36-38), 
and there would purportedly be an unreasonable ratio of 
supervisors to employees if the RNs are not supervisors (Br. 
38-39). As the Board has explained, “the Act does not state 
or fairly imply that the highest ranking employee [on site 
during] a shift is necessarily a supervisor, nor does it indi- 
cate that a group of individuals must have supervisory status 
simply to avoid having a particular ratio of employees to 
supervisors that, in the estimation of some tribunal, is ‘too 
high.’ ” Beverly Enters.—Ohio, 313 N.L.R.B. 491, 500 (1993). 
Rather, such “secondary indicia” are “aid[s] in evaluating the 
existence of supervisory status,” but are “not substitutes for 
the statutorily prescribed powers of Section 2(11).” MDI 
Commercial Servs., 325 N.L.R.B. 53, 57 (1997). “[U]nless an 
individual possesses one or more of the statutory indicia of 
supervisory status, neither the ratio of supervisors to 

15 Similarly, although another memorandum (J.A. 62) states that the 
building supervisors are “in charge of the facility and all rehabilitation 
staff,” the Board reasonably concluded that, as a practical matter, “the 
only extra responsibility assumed by the RNs when serving as ‘building 
supervisors’ is to obtain needed help if for some reason a shift is not fully 
staffed.” Pet. App. 51a. Respondent’s Administrator testified that the 
building supervisors’ responsibility is “[p]rimarily to ensure that there’s 
adequate coverage” and that coverage concerns prompted creation of the 
role. J.A. 18, 27; see J.A. 20. Moreover, the building supervisors do not 
consider themselves to be in charge of the rehabilitation staff. J.A. 50. 

19 

employees nor the fact that she may be the sole person in 
charge at times (nor both together) can transform her into a 
statutory supervisor.” Beverly Enters.—Ohio, 313 N.L.R.B. 
at 500. See also NLRB Br. 45-46 & n.21. Because, as we 
have shown, the RNs do not exercise any supervisory power 
listed in Section 2(11) using independent judgment, they are 
not supervisors. 

16 

In any event, the secondary indicia on which respondent 
relies are of limited usefulness in this case. Although the 
building supervisor “is the highest ranking employee in the 
building” for “almost two-thirds of the day” (Pet. App. 16a, 
18a), a stipulated supervisor is “on call” at those times. Id. at 
16a; J.A. 39. The building supervisors contact the “on call” 
supervisor when necessary. See J.A. 24, 52, 53. Respon- 
dent’s assertion (Br. 39) regarding the ratio of supervisors to 
employees is also unpersuasive. Although respondent 

16 Respondent incorrectly contends (Br. 31-35), based largely on its 
inaccurate assertions about the authority of the RNs, that they possess 
the same authority as nurses found to be supervisors in prior Board cases. 
The employees found to be supervisors in the prior cases (except for one 
case that has been overruled) had significantly greater authority than the 
RNs here. See, e.g., Nymed, Inc., 320 N.L.R.B. 806, 813 (1996) (evaluation 
of aides); Newton-Wellesley Hosp., 219 N.L.R.B. 699, 700 (1975) (approval 
of overtime, scheduling, and effective recommendation regarding hiring 
and firing); Wing Mem’l Hosp. Ass’n, 217 N.L.R.B. 1015, 1016 (1975) 
(authorization of overtime, scheduling, assignments, transfers, evalua- 
tions, and effective recommendation regarding hiring); see also note 9, 
supra (discussing National Living Ctrs., Inc.). The same is true of the 
employees to whose supervisory status “the parties stipulated” (Br. 30) in 
other cases cited by respondent. See, e.g., Schnurmacher Nursing Home 

v. NLRB, 214 F.3d 260, 263 (2d Cir. 2000) (administration of the nursing 
department); NLRB v. Grancare, Inc., 170 F.3d 662, 664 (7th Cir. 1999) 
(en banc) (scheduling and evaluation); Sherewood Enters., Inc., 175 
N.L.R.B. 354, 356 n.1 (1969) (discipline, evaluation, and effective recom- 
mendation regarding hiring and firing); see also pp. 7-8, supra (discussing 
Westwood Health Care Ctr.). 

20 

calculates a ratio of 5% if the RNs are deemed to be employ- 
ees, which respondent regards as unrealistically low, that 
calculation is flawed. 

17 

* * * * * 

For the foregoing reasons, as well as those set forth in our 
opening brief, the judgment of the court of appeals should be 
reversed to the extent that the court held that the RNs 
employed by respondent are supervisors. 

Respectfully submitted. 

LEONARD R. PAGE 

Acting General Counsel 
National Labor Relations 

Board 
SETH P. WAXMAN 

Solicitor General 

JANUARY 2001 

17 Respondent’s calculation is based on the unwarranted assumption 
that the employees “supervised” by the RNs include respondent’s kitchen, 
housekeeping, and maintenance employees, as well as the rehabilitation 
counselors. See Br. 39. The kitchen, housekeeping, and maintenance 
employees have their own supervisors, who are stipulated to be Section 
2(11) supervisors, and therefore should not be included in the ratio 
calculation. Pet. App. 45a, 54a; see Beverly Enters.—Ohio, 313 N.L.R.B. 
at 507 n.57. Further, respondent has never contended that the RNs 
supervise the rehabilitation counselors. A more realistic analysis yields a 
ratio of 10% if the RNs are treated as employees: 49 employees (6 RNs, 3 
licensed practical nurses, and 40 rehabilitation assistants) to 5 supervisors 
(2 unit coordinators, a nursing coordinator, the administrator, and the 
assistant administrator). A ratio of 10% is not very different from the 12% 
figure that respondent deems “reasonable.” Br. 39.