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

REPLY BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

SETH P. WAXMAN 

Solicitor General 

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

LEONARD R. PAGE 
General Counsel 
National Labor Relations Board 
Washington, D.C. 20570 

TABLE OF AUTHORITIES 

Cases: 

Beverly Enters., Va., Inc. v. NLRB, 165 F.3d 290 

(4th Cir. 1999) ..................................................................... 

2, 3, 4 

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

1998) ......................................................................................... 3 

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

703 (6th Cir. 1999) .................................................................. 

2 

NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154 

(3d Cir. 1999) .......................................................................... 

2, 3 

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

1999) ......................................................................................... 

3, 5 

NLRB v. Health Care & Retirement Corp., 

511 U.S. 571 (1994) ................................................................ 

5, 6 

Providence Alaska Med. Ctr. v. NLRB, 121 F.3d 

548 (9th Cir. 1997) .................................................................. 

3 

Schnurmacher Nursing Home v. NLRB, 214 F.3d 

260 (2d Cir. 2000) ............................................................... 

2, 4, 5 

Statute: 

National Labor Relations Act, § 2 (11), 29 U.S.C. 

152(11) ...................................................................................... 1, 6 

(I) 

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

REPLY BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

As we explain in our petition for a writ of certiorari, 
this Court’s review is needed to resolve conflicts among 
the courts of appeals on two important questions: 
First, whether the National Labor Relations Board 
(Board) has reasonably interpreted the term “indepen- 
dent judgment” in the definition of “supervisor” under 
Section 2(11) of the National Labor Relations Act (Act), 
29 U.S.C. 152(11). And, second, whether the Board 
reasonably requires the party who alleges that an 
individual is a “supervisor” to bear the burden of 
proving the individual’s supervisory status. With 
regard to the first of those questions, respondent 

(1) 

2 

contends that there is no conflict among the courts of 
appeals. With regard to the second question, 
respondent does not dispute that there is a conflict, but 
contends that the question is not sufficiently important 
to warrant this Court’s review. Both of respondent’s 
contentions are incorrect. 

1. As we have explained (Pet. 2, 13), an employee is 
a supervisor under Section 2(11), and thereby excluded 
from the rights and protections afforded by the Act, 
only if he has authority to engage in one of 12 specified 
supervisory functions and exercises that authority 
using “independent judgment.” 29 U.S.C. 152(11). The 
Board has interpreted the term “independent judg- 
ment” to exclude ordinary professional or technical 
judgment that an employee exercises in directing less- 
skilled employees to deliver services in accordance with 
employer-specified standards. See Pet. 4, 13. 

The courts of appeals are divided on the legal ques- 
tion whether the Board’s interpretation of “indepen- 
dent judgment” is a reasonable construction of the Act 
entitled to judicial deference. See Pet. 19-21. In re- 
viewing the Board’s application of its interpretation in 
cases concerning the supervisory status of nurses, five 
courts of appeals have upheld the Board’s interpreta- 
tion, and four courts of appeals have rejected that 
interpretation. See ibid.; pp. 4-5, infra (discussing 
Schnurmacher Nursing Home v. NLRB, 214 F.3d 260 
(2d Cir. 2000)). The conflict has been noted by the 
courts of appeals (and individual judges),1 and the issue 

1 See NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 163 (3d 
Cir. 1999); Beverly Enters., Va., Inc. v. NLRB, 165 F.3d 290, 298- 
299 (4th Cir. 1999) (en banc); Integrated Health Servs. v. NLRB, 
191 F.3d 703, 713 (6th Cir. 1999) (Jones, J., concurring); Beverly 
Enters., 165 F.3d at 299 & n.1 (Phillips, J., dissenting). 

3 

has spawned dissenting opinions on both sides of the 
debate.2 Indeed, courts on both sides of the issue have 
invoked the dissenting opinions of judges in other 
circuits in support of their respective positions.3 

Respondent thus errs in contending (Br. in Opp. 1-6) 
that the disagreement among the courts of appeals 
reflects nothing more than differences in particular 
facts, such as “the type of nurses involved” and “the 
setting in which the nurses operate” (id. at 3), in each 
case. Rather, on essentially similar facts, some courts 
have rejected the Board’s interpretation of “indepen- 
dent judgment” and therefore concluded that the 
nurses at issue are supervisors, yet other courts have 
accepted the Board’s interpretation and concluded that 
the nurses involved are not supervisors.4 As Judge 

2 See Attleboro, 176 F.3d at 170-172 (Bright, J., dissenting) 
(urging deference to Board’s interpretation); Beverly Enters., 165 
F.3d at 299-303 (Phillips, J., dissenting) (same); Grancare, Inc. v. 
NLRB, 137 F.3d 372, 381-382 (6th Cir. 1998) (Moore, J., concurring 
in the judgment) (same); NLRB v. Grancare, Inc., 170 F.3d 662, 
668-670 (7th Cir. 1999) (en banc) (Kanne, J., dissenting) (urging 
rejection of Board’s interpretation); Providence Alaska Med. Ctr. 

v. NLRB, 121 F.3d 548, 555-556 (9th Cir. 1997) (Noonan, J., 

dissenting) (same). 

3 See Grancare, 170 F.3d at 667 (deferring to Board’s inter- 
pretation and expressing agreement with Judge Phillips’ “persua- 
sive” dissent in Beverly Enters.); Attleboro, 176 F.3d at 168 
(rejecting Board’s interpretation and expressing agreement with 
Judge Noonan’s dissent in Providence Alaska). 

4 For example, in Attleboro, the Third Circuit rejected the 
Board’s interpretation of “independent judgment” (176 F.3d at 
166-168) and concluded that licensed practical nurses (LPNs) ser- 
ving as “charge nurses” at a nursing home were supervisors 
because they “set[] daily assignments” and “direct[ed] the [aides] 
in their daily duties” (id. at 166). By contrast, in the Seventh Cir- 
cuit’s Grancare decision, the court upheld the Board’s interpre- 
tation of “independent judgment” (170 F.3d at 666-668) and 

4 

Phillips has noted, “there is a sufficiently common pat- 
tern respecting [the nurses’] assignment, directive, and 
disciplinary activities that makes it obvious that the 
different results turn not on any significant factual 
differences, but on the way ‘independent judgment’ is 
construed and back of that, on the judicial deference 
owed the Board’s construction.” Beverly Enters., Va., 
Inc. v. NLRB, 165 F.3d 290, 299 n.1 (4th Cir. 1999) (en 
banc) (dissenting opinion). 

Respondent is also mistaken in asserting (Br. in Opp. 
2-3) that the Second Circuit’s decision in Schnur- 
macher, supra, supports respondent’s contention that 
“different factual scenarios account for the different 
holdings” (Br. in Opp. 2) among the courts of appeals. 
Rather, the decision in Schnurmacher confirms that the 
outcome in a particular case is governed by the inter- 
pretation of “independent judgment” applied by the 
court deciding the case. In Schnurmacher, the court of 
appeals concluded, contrary to the Board, that a nurse 
exercises “independent judgment” under Section 2(11) 
when she “makes a judgment as to the need for certain 
actions based on specialized knowledge and experience” 
and has responsibility “to see that others do what is 
required by that judgment.” 214 F.3d at 268. The 
Second Circuit thereby rejected the Board’s view that 
“independent judgment” does not encompass ordinary 
professional or technical judgment in directing less- 
skilled employees to deliver services in accordance with 
employer-specified standards, and its decision has 
deepened the conflict among the courts of appeals. 

concluded that LPN “charge nurses” at a nursing home were not 
supervisors even though they were “expected to ‘take charge’ by 
directing the [aides]” (id. at 664) and had “some assignment, 
scheduling, and disciplinary powers over [them]” (id. at 668). 

5 

Respondent is also incorrect in suggesting that the 
Schnurmacher court’s statement that its decision was 
based “solely upon [the] factual record” and its dis- 
claimer of the intent to “vest the title ‘charge nurse’ 
with any legal significance” (214 F.3d at 269 n.2) demon- 
strate that the discord among the courts of appeals 
results only from “different factual scenarios.” Br. in 
Opp. 6. As we have explained, notwithstanding the 
disclaimer, the Second Circuit’s conclusion that the 
nurses at issue were supervisors was based on its 
rejection of the Board’s interpretation of “independent 
judgment.” It is thus not surprising that courts that 
have accepted the Board’s interpretation have, on 
similar facts, concluded that the nurses at issue were 
not supervisors. See, e.g., Grancare, 170 F.3d at 664, 
666-668 (discussed in note 4, supra).5 

2. With regard to the conflict among the courts of 
appeals on the proper allocation of the burden of prov- 
ing supervisory status, respondent mistakenly asserts 
(Br. in Opp. 7-8) that this Court’s decision in NLRB v. 
Health Care & Retirement Corp. (HCR), 511 U.S. 571 
(1994), demonstrates that the conflict is not “a matter of 
such importance that it requires review by this Court” 
(Br. in Opp. 7). Although respondent attempts to make 

5 Respondent also mistakenly suggests that the decision in 
Schnurmacher turned merely on the facts of the case because the 
court of appeals, elsewhere in its opinion, upheld the Board’s deter- 
mination that the nurses did not exercise independent judgment 
insofar as “they assigned [aides] to patients and scheduled their 
break times” (Br. in Opp. 3). The court reached that conclusion not 
based on the Board’s distinction between directions entailing the 
exercise of ordinary professional and technical judgment and those 
entailing the exercise of managerial judgment, but because the 
assignment and scheduling decisions were generally based on 
“prior practice.” See 214 F.3d at 266. 

6 

much of the fact that the Court in HCR “made no 
mention” (id. at 8) of the burden-of-proof issue, the 
Court did not address that issue simply because the 
issue was not before the Court.6 

As we have explained (Pet. 21-25), the Sixth Circuit’s 
rule that the Board invariably bears the burden of 
proving that an individual is not a supervisor conflicts 
with the position of other courts of appeals on that 
question, which is both of general importance in the 
administration of the National Labor Relations Act and 
of decisive importance in this case. Accordingly, this 
Court’s review of that question is warranted. 

For the foregoing reasons, and the reasons set forth 
in our petition, the petition for a writ of certiorari 
should be granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
LEONARD R. PAGE 

General Counsel 
National Labor Relations Board 

AUGUST 2000 

6 Although the Board had sought certiorari on the burden-of- 
proof issue in HCR, the Court’s grant of certiorari was limited to 
the question of the validity of the Board’s interpretation of Section 
2(11)’s phrase “in the interest of the employer.” See 511 U.S. at 
576; see also 510 U.S. 810 (1993). The Board acknowledged in its 
petition for certiorari in HCR that the allocation of the burden of 
proof was not determinative of the outcome in that case, but the 
Board nonetheless urged review of the issue on the ground that 
the Sixth Circuit would adhere to its position in future cases. See 
Pet. 20 n.13, HCR, supra (No. 92-1964). As we have explained 
(Pet. 23-25), the burden-of-proof issue is of decisive importance in 
this case. 

7