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 

PETITION FOR A WRIT OF CERTIORARI 

LEONARD R. PAGE 

General Counsel 

LINDA SHER 

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) 

II 

PARTIES TO THE PROCEEDINGS BELOW 

The petitioner here, which was the respondent/cross- 
petitioner in the court of appeals, is the National Labor 
Relations Board. The respondents here are Kentucky 
River Community Care, Inc., which was the petitioner/ 
cross-respondent in the court of appeals, and Kentucky 
State District Council of Carpenters, AFL-CIO, which 
was an intervenor in the court of appeals in support of 
the Board’s cross-application for enforcement of the 
Board’s order against respondent. 

TABLE OF CONTENTS 

Page 

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

Jurisdiction ...................................................................................... 2 

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

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

Reasons for granting the petition ............................................... 
12 

Conclusion ....................................................................................... 26 

Appendix A ................................................................................... 
1a 

Appendix B ................................................................................... 26a 

Appendix C ................................................................................... 34a 

Appendix D ................................................................................... 35a 

Appendix E ................................................................................... 61a 

Appendix F ................................................................................... 64a 

TABLE OF AUTHORITIES 

Cases: 

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

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

15 

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

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

22 

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 

U.S. 359 (1998) .................................................................... 

18, 19 

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

(6th Cir. 1992) ......................................................................... 

17 

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

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

23, 25 

Beverly Enters., Minn., Inc. v. NLRB, 148 F.3d 

1042 (8th Cir. 1998) ................................................................ 

20 

Beverly Enters.-Pa., Inc. v. NLRB, 129 F.3d 1269 

(D.C. Cir. 1997) ....................................................................... 

19 

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

290 (4th Cir. 1999) .............................................................. 

20, 21 

Bowne of Houston, Inc., 280 N.L.R.B. 1222 (1986) ........... 22 

(III) 

IV 

Cases—Continued: Page 

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

1997) ......................................................................................... 17 

Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 

(1984) ........................................................................................ 16 

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

22 

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

23 

Fall River Dyeing & Finishing Corp. v. NLRB, 

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

16 

Glenmark Assocs., Inc. v. NLRB, 147 F.3d 333 

(4th Cir. 1998) ..................................................................... 

20, 21 

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

(1974) ........................................................................................ 14 

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

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

11, 17, 22 

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

(1996) ........................................................................................ 23 

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

22 

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

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

17, 18, 19 

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

16 

Marine Eng’rs Beneficial Ass’n v. Interlake 

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

17 

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

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

11, 17-18 

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

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

19, 21 

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

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

23 

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

14 

NLRB v. Curtin Matheson Scientific, Inc., 494 

U.S. 775 (1990) ........................................................................ 

16 

NLRB v. Erie Resistor Corp., 373 U.S. 221 

(1963) ........................................................................................ 17 

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

1999) ..................................................................................... 19, 21 

V 

Cases—Continued: Page 

NLRB v. Health Care & Retirement Corp., 511 

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

3, 12, 18 

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

(1st Cir. 1999) ..................................................................... 

19, 21 

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

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

16, 24 

NLRB v. Southern Bleachery & Print Works, Inc., 

257 F.2d 235 (4th Cir. 1958), cert. denied, 359 U.S. 

911 (1959) ................................................................................. 

14 

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

1961) ......................................................................................... 17 

NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 

(1983) ........................................................................................ 23 

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

16 

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

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

23 

Nymed, Inc., d/b/a Ten Broeck Commons, 

320 N.L.R.B. 806 (1996) ................................... 

3, 4, 13, 14, 15 

OCAW v. NLRB, 445 F.2d 237 (D.C. Cir. 1971), 

cert. denied, 404 U.S. 1039 (1972) ....................................... 

25 

Providence Alaska Med. Ctr. v. NLRB, 121 

F.3d 548 (9th Cir. 1997) .................................................... 

20, 24 

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

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

3, 4, 13 

Rest Haven Living Ctr., 322 N.LR.B. 210 (1996) ............. 

4, 15 

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

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

23 

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

(1971) ........................................................................................ 16 

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

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

4, 22 

Thayer Dairy Co., 233 N.L.R.B. 1383 (1977) ...................... 22 

VI 

Statute: Page 

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

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

2 

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

passim 

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

15-16 

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

10 

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

10 

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

10 

Miscellaneous: 

S. Rep. No. 105, 80th Cong., 1st Sess. (1947) ....................... 14 

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 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the National 
Labor Relations Board, petitions for a writ of certiorari 
to review the judgment of the United States Court of 
Appeals for the Sixth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals, App., infra, 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, App., infra, 26a-33a, are 
noted at 323 N.L.R.B. No. 209 (Table). The decisions of 
the Board in the underlying representation proceeding, 
App., infra, 34a-60a, are unreported. 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals (App., infra, 
61a-63a) was entered on January 27, 2000. A petition 
for rehearing was denied on March 23, 2000 (App., 
infra, 64a-65a). The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

Section 2(3) of the National Labor Relations 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 
responsibly 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 
nature, but requires the use of independent judg- 
ment. 

STATEMENT 

1. To be deemed a supervisor under Section 2(11) of 
the National Labor Relations Act (NLRA or Act), an 
employee must have authority to engage in one of 12 
specified supervisory functions and must exercise that 
authority “in the interest of the employer,” using “inde- 
pendent judgment,” and not judgment “of a merely 
routine or clerical nature.” 29 U.S.C. 152(11). In 

3 

NLRB v. Health Care & Retirement Corp. (HCR), 511 
U.S. 571 (1994), this Court considered the validity of the 
Board’s approach at that time to determining whether a 
nurse is a “supervisor” within the meaning of 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 em- 
ployer.” HCR, 511 U.S. 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 with 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 other “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 pass on the proper interpretation of any statu- 
tory element other than “in the interest of the 
employer.” Id. at 583. 

The principal issue presented by 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 
reasonable and entitled to deference from the courts. 
The Board developed its current approach in two cases 
in which it heard oral argument and considered the 
submissions of numerous amici. See Providence Hosp., 
320 N.L.R.B. 717 (1996), enforced, 121 F.3d 548 (9th 
Cir. 1997); Nymed, Inc., d/b/a Ten Broeck Commons, 
320 N.L.R.B. 806 (1996). As we discuss pp. 12-16, infra, 

4 

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 the 
supervisory status of employees in other occupations.” 
See Providence Hosp., 320 N.L.R.B. at 717. That 
analysis entails an inquiry into whether the employee 
at issue exercises “independent judgment” in connec- 
tion with one (or more) of the functions listed in Section 
2(11). In the Board’s view, 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 employee a 
“supervisor” under Section 2(11). See Providence 
Hosp., 320 N.L.R.B. at 725-730; Ten Broeck Commons, 
320 N.L.R.B. at 809-812. See also Rest Haven Living 
Ctr., 322 N.L.R.B. 210, 211 (1996). 

This case also presents the question whether the 
Board’s rule regarding the allocation of the burden of 
proving supervisory status is reasonable and entitled to 
judicial deference. As we discuss infra, pp. 12, 21-23, 
the Board has long placed the burden of proof on the 
party asserting that the employees at issue are supervi- 
sors. See, e.g., St. Alphonsus Hosp., 261 N.L.R.B. 620, 
624 (1982), enforced, 703 F.2d 577 (9th Cir. 1983) 
(Table). 

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. 

5 

The contracts, which incorporate by reference certain 
provisions of Kentucky law, set forth eligibility restric- 
tions for residents, facility staffing requirements, and 
other guidelines that govern the services that respon- 
dent provides. App., infra, 2a, 5a, 37a-39a. 

Caney Creek is organized into two wings, each of 
which is divided into two units that each accommodate 
20 residents. The facility operates 24 hours a day, 
seven days a week. App., infra, 45a. Overall responsi- 
bility 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, a recreational counselor, a man- 
ager for housekeeping and maintenance, and a kitchen 
supervisor. Ibid. Those individuals are stipulated to be 
Section 2(11) supervisors. Id. at 54a. The supervisory 
status of Caney Creek’s registered nurses (RNs) and 
rehabilitation counselors is, however, in dispute. 

Caney Creek employs 20 rehabilitation counselors, 40 
rehabilitation assistants, six RNs, and three licensed 
practical nurses (LPNs). App., infra, 45a; Tr. 158. 
Each of the four treatment units is staffed with five 
rehabilitation counselors and ten rehabilitation assis- 
tants. App., infra, 6a, 45a. The RNs and LPNs provide 
medical services to residents throughout the units. Id. 
at 45a, 50a. Two RNs and one LPN 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.). Id. at 50a; Tr. 224, 260. Reha- 
bilitation assistants work on each shift, and rehabilita- 
tion counselors primarily work on only the first shift. 
App., infra, 47a; Tr. 138. 

For each resident, Caney Creek establishes a treat- 
ment plan that contains rehabilitative goals and speci- 
fies activities designed to accomplish those goals. App., 
infra, 46a. The treatment plan also has a medical 

6 

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, 47a; Tr. 111, 183. Both the rehabilitation 
counselors and the RNs direct less-skilled employees to 
deliver services in accordance with the employer- 
specified standards expressed in the treatment plans. 

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. App., infra, 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; Tr. 124. 

The medical component of the treatment plans is 
implemented on a daily basis by the RNs and LPNs. 
App., infra, 17a, 45a, 46a; Tr. 158, 183. 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. App., 
infra, 17a, 50a; Tr. 141, 158. 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.” Tr. 331-332. 

During part of the second and all of the third shift, 
neither the administrator nor any other stipulated 
supervisor is physically present at Caney Creek. How- 
ever, a stipulated supervisor is always “on call” at those 
times. When the stipulated supervisor is “on call” 

7 

rather than on site, the RNs on duty are designated by 
respondent as “building supervisors.” App., infra, 16a, 
50a; Tr. 200. As “building supervisors,” the RNs have 
some additional duties. The building supervisors are 
“in charge of the facility and all rehabilitation staff.” R. 
Exh. 13. When the building supervisors “come on 
duty,” they are “[to] visit the units to check the cover- 
age,” and “[i]f necessary, pull from one unit to another.” 
R. Exh. 14. However, the minimum number of employ- 
ees necessary to cover a given shift is set by manage- 
ment. Tr. 149-150. The building supervisors transfer 
employees from one unit to another for the particular 
shift simply “to make sure the head count is there.” Id. 
at 155. 

The building supervisors also handle staff shortages 
when employees telephone that they are unable to 
report for their scheduled shift. App., infra, 16a, 51a; 
R. Exh. 13. In those situations, the building supervi- 
sors first seek a volunteer from the preceding shift to 
stay over. If no one volunteers, the building supervi- 
sors, using a list, attempt to reach by telephone an off- 
duty employee who lives nearby to come in to work. In 
no case, however, do building supervisors have author- 
ity to compel an employee to work under threat of 
discipline. App., infra, 16a, 51a.1 

b. In January 1997, the Kentucky State District 
Council of Carpenters (Union) filed a petition with the 
Board seeking to represent an appropriate bargaining 

1 Respondent has contended that the building supervisors are 
authorized to “write up” an employee who does not “comply” with 
a decision “to shift staff between units” and to “send an employee 
home” in some circumstances. App., infra, 16a-17a. There is no 
evidence in the record, however, that the building supervisors 
have ever exercised that purported authority in either respect. 
See pp. 8-9, infra. 

8 

unit of employees employed by respondent at Caney 
Creek. Respondent contended 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. App., infra, 50a-53a. The RD ex- 
plained that, after this Court’s decision in HCR, “the 
Board determined to apply the 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 burden of proving that an 
individual is a supervisor within the meaning of Section 
2(11) of the Act rests with the party asserting supervi- 
sory 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.” App., infra, 53a. The RD found that “the 
RNs may occasionally request other employees to per- 
form routine tasks, but they apparently have no author- 
ity to take any action if the employee refuses their 
directives.” Id. at 51a. He found that “the RNs, includ- 
ing when they are serving as ‘building supervisors,’ for 
the most part, work independently and by themselves 
without any subordinates.” Id. at 52a. Although 
respondent contended that “RNs can ‘write-up’ 
employees,” the RD found that “there is no evidence in 
the record that they have ever done so.” Id. at 51a. In 

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. App., infra, 8a-13a, 37a-44a. 

9 

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, pursuant 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 rehabilitation counselors 
do not possess any indicia of supervisory authority over 
the rehabilitation assistants. App., infra, 49a. “They do 
not have the authority to hire, fire, discipline, promote 
or evaluate employees and any assignment or direction 
which they may give other employees is routine in 
nature.” Ibid. Nor does “[t]he fact that the counselors 
formulate treatment plans which are administered in 
part by rehabilitation assistants * * * make the 
rehabilitation counselors supervisors within the mean- 
ing of Section 2(11) of the Act.” Ibid. 

c. Respondent filed a request for review of the RD’s 
decision with the Board. Insofar as relevant here, the 
Board denied the request for review. App., infra, 34a. 
On March 20, 1997, the Board conducted an election 
among the employees at Caney Creek, which the Union 
won. Accordingly, the Board certified the Union as the 
bargaining representative of the employees, including 
the RNs and the rehabilitation counselors. Id. at 28a- 
29a. 

Respondent refused to bargain with the Union. App., 
infra, 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 

10 

violated Section 8(a)(5) and (1) of the Act, 29 U.S.C. 
158(a)(5) and (1). App., infra, 26a.3 On summary judg- 
ment, the Board found that respondent had violated the 
Act and ordered it 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.” App., infra, 2a. 
The court therefore denied enforcement of the Board’s 
order “insofar as it includes the registered nurses in the 
bargaining unit.” Ibid. 

The court explained that its task in this case was to 
determine whether the RNs’ responsibilities “call for 
the exercise of ‘independent judgment’ under section 
[2(11)].” App., infra, 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 

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.” 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.” 

11 

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.” App., infra, 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 registered nurses are 
supervisors because they “direct the LPNs in the 
proper dispensing of medication, regularly serve as the 
highest ranking employees in the building, seek addi- 
tional employees in the event of a staffing shortage, 
move employees between units as needed, and have the 
authority to write up employees who do not cooperate 
with staffing assignments.” App., infra, 18a-19a. The 
court concluded that those duties “involve independent 
judgment.” Id. at 19a. 

The court upheld, however, the Board’s finding that 
the rehabilitation counselors are not supervisors. The 
court explained that the rehabilitation counselor’s 
primary function of designing a patient treatment plan 
“does not, of itself, involve any supervisory authority.” 

12 

App., infra, 21a. Moreover, the fact that the assistants 
“carry out the provisions of the treatment plans de- 
signed by the counselors does not suggest that the 
counselors are supervisors.” Ibid. 

Judge Jones dissented in part. Although he agreed 
with the panel majority’s holding as to the rehabilita- 
tion counselors, he would have sustained the Board’s 
conclusion that the RNs are not statutory supervisors. 
App., infra, 22a-25a. 

REASONS FOR GRANTING THE PETITION 

After this Court’s decision in NLRB v. Health Care 
& Retirement Corp. (HCR), 511 U.S. 571 (1994), the 
Board undertook to address anew how to apply, in the 
health care context, the Act’s express exclusion of 
“supervisors” from its protections. The Board con- 
cluded that no special rule was required and that it 
should apply to nurses and other health care workers 
its traditional analysis for determining the supervisory 
status of employees in other occupations. See pp. 3-4, 
supra. Consistent with that traditional analysis, the 
Board concluded that an employee’s exercise of ordi- 
nary 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 Act. 
Further, the Board has long held that the party 
alleging that an individual is a supervisor bears the 
burden of proving that claim. In this and similar cases, 
the Sixth Circuit has “repeatedly” rejected the Board’s 
position on both of those issues. App., infra, 17a; see 
also id. at 15a. 

The decision of the court of appeals squarely conflicts 
with decisions of other courts of appeals on both issues. 

13 

Those issues cut across all industries subject to the 
Board’s jurisdiction and are of recurring importance to 
the proper administration of the Act. This Court’s 
review is warranted in order to resolve the double 
conflict in the circuits presented by this case and to 
reaffirm that judicial deference is owed the Board’s 
interpretation of the NLRA when, as in this case, that 
interpretation is rational and consistent with the Act. 

1. a. Under Section 2(11) of the NLRA, 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 functions with respect to other 
employees. An employee is a supervisor only if he 
exercises that authority using “independent judgment,” 
and not if his exercise of that authority is “of a merely 
routine or clerical nature.” 29 U.S.C. 152(11). As we 
have explained, in the Board’s view, 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” 
within the meaning of the Act. Providence Hosp., 320 
N.L.R.B. at 725-730; Ten Broeck Commons, 320 
N.L.R.B. at 809-812. 

The Board’s view comports with the statutory text. 
The text makes clear that an employee may exercise 
some supervisory authority without being a supervisor. 
Indeed, it makes clear that an employee may exercise 
supervisory authority that requires the use of “judg- 
ment” without being a supervisor. To be classed a 
supervisor, an employee must exercise supervisory 
authority using “independent” judgment and not judg- 
ment that is “routine” or “clerical.” The Board inter- 
prets those qualifiers to exclude ordinary professional 
or technical judgment of the type we have described. 

14 

That interpretation is not only consistent with the 
statutory text but rational because it properly effectu- 
ates Congress’s purpose in excluding supervisors from 
the coverage of the Act. As this Court has explained, in 
framing the definition of “supervisor” in Section 2(11), 
Congress intended to exclude from the coverage of the 
Act only those employees who are vested with “genuine 
management prerogatives,” but to retain coverage for 
“minor supervisory employees,” such as “straw bosses, 
leadmen, [and] set-up men.” NLRB v. Bell Aerospace 
Co., 416 U.S. 267, 280-281 (1974) (quoting S. Rep. No. 
105, 80th Cong., 1st Sess. 4 (1947)). “[M]inor supervi- 
sory employees,” such as leadmen, often exercise rou- 
tine technical judgment in directing the work of less- 
skilled employees. Nonetheless, the Board has tradi- 
tionally held such skilled individuals to be employees, 
not supervisors.4 

The Board’s post-HCR interpretation of “indepen- 
dent judgment” brings its Section 2(11) standard for 
nurses into harmony with its longstanding view re- 
specting leadmen and other minor supervisory employ- 
ees. Under that view, the exercise of circumscribed 

4 See, e.g., NLRB v. Southern Bleachery & Print Works, Inc., 
257 F.2d 235, 239 (4th Cir. 1958) (distinguishing “a superior work- 
man or lead man who exercises the control of a skilled worker over 
less capable employees” from “a supervisor who shares the power 
of management”), cert. denied, 359 U.S. 911 (1959); Golden West 
Broadcasters-KTLA, 215 N.L.R.B. 760, 762 n.4 (1974) (“[A]n em- 
ployee with special expertise or training who directs or instructs 
another in the proper performance of his work for which the 
former is professionally responsible is not thereby rendered a 
supervisor. * * * This is so even when the more senior or more 
expert employee exercises some independent discretion where 

* * * such discretion is based upon special competence or upon 
specific articulated employer policies.”). See also Ten Broeck 
Commons, 320 N.L.R.B. at 809-810. 

15 

discretion based on professional or technical skills and 
experience is not independent judgment that triggers 
supervisory status. See note 4, supra. A nurse’s 
articulating the meaning of an established health care 
routine to an aide—like an electrician’s giving direc- 
tions on the basis of a reading of a wiring diagram or 
blueprint5—may well involve the exercise of some 
degree of judgment. Without more, however, a nurse 
delegated such limited authority over other employees 
is not exercising independent judgment, but only 
making a routine professional or technical judgment 
and giving directions based on that judgment.6 

That interpretation is also consistent with the 
principle that the Board has long applied to determine 
whether individuals with professional training in other 
industries exercise the requisite degree of judgment to 
vest them with supervisory authority. The Act ex- 
pressly covers “professional employees,” who, by defini- 
tion, engage in “the consistent exercise of discretion 

5 See Adco Elec., Inc., 307 N.L.R.B. 1113, 1122-1126 (1992) 
(journeyman electrician’s directing work of apprentice on the basis 
of superior knowledge insufficient to establish supervisory status 
where job blueprints and progress reports provided by manage- 
ment dictated what work should be done and when), enforced, 6 
F.3d 1110, 1117-1118 (5th Cir. 1993). 

6 See Rest Haven Living Ctr., 322 N.L.R.B. at 211 (where “the 
LPNs’ directives to [nurse’s aides] are narrowly circumscribed and 
involve giving general, routine directions to lesser skilled em- 
ployees consistent with established employer policies in order to 
maintain the quality of care * * * this type of direction does not 
involve the independent judgment required by Section 2(11)”); Ten 
Broeck Commons, 320 N.L.R.B. at 807, 809-812 & nn. 9-11 (LPNs’ 
“narrowly circumscribed” assignment and direction of aides is 
routine when based on detailed individual health care plans that 
reflect the LPNs’ expert technical judgment and are reviewed and 
approved by a registered nurse). 

16 

and judgment.” 29 U.S.C. 152(12). See Leedom v. 
Kyne, 358 U.S. 184 (1958). Professional employees, 
such as the registered nurses involved in this case, 
often direct less-skilled employees with whom they 
work. See NLRB v. Res-Care, Inc., 705 F.2d 1461, 1465 
(7th Cir. 1983). However, as this Court has recognized, 
the Board has traditionally held 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 employee’s activities fall 
outside the scope of the duties routinely performed by 
similarly situated professionals will he be found aligned 
with management.” Ibid.7 

b. The court of appeals erred in substituting its own 
interpretation of the phrase “independent judgment” 
for the Board’s interpretation. This Court has repeat- 
edly held that the Board’s interpretations are “entitled 
to deference from the courts” if “rational and consis- 
tent” with the Act. See, e.g., Fall River Dyeing & Fin- 
ishing Corp. v. NLRB, 482 U.S. 27, 42 (1987); NLRB v. 
Curtin Matheson Scientific, Inc., 494 U.S. 775, 796 
(1990). See also Chevron U.S.A. Inc. v. NRDC, Inc., 
467 U.S. 837 (1984). Because the Board’s interpretation 

7 The Court in Yeshiva described the Board’s decision in 
Skidmore, Owings & Merrill, 192 N.L.R.B. 920 (1971), as “accu- 
rately captur[ing] the intent of Congress.” 444 U.S. at 690. In that 
case, the Board found that professional architects in charge of 
projects who had “some discretion in assigning work and [were] 
professionally responsible for the quality of work performed,” 
were not supervisors “but merely provide[d] professional direction 
and coordination for other professional employees.” 192 N.L.R.B. 
at 921. 

17 

of “independent judgment” is a reasonable construction 
of an ambiguous statutory term and is entirely 
consistent with the Act, the court of appeals should 
have deferred to that interpretation.8 

The court refused to defer to the Board’s interpreta- 
tion because “the NLRB has continuously interpreted 
[that term] in a manner that is inconsistent with th[e] 
circuit’s precedent.” App., infra, 17a. Thus, the Sixth 
Circuit has held that “the Board erred as a matter of 
law when it endorsed the view that the evidence re- 
garding the nurses’ scheduling, assignment, and break 
approval duties was insufficient” to indicate supervi- 
sory status because those duties “simply flowed from 
the nurses’ professional knowledge and training.” Inte- 
grated Health Servs. v. NLRB, 191 F.3d 703, 711 (6th 
Cir. 1999). Quoting from Beverly California Corp. v. 
NLRB, 970 F.2d 1548, 1553 (6th Cir. 1992), a decision 
that predated this Court’s decision in HCR, the court of 
appeals stated: “It is perfectly obvious that the kind of 
judgment exercised by registered nurses in directing 

. . . nurses’ aides in the care of patients occupying 
skilled and intermediate care beds in a nursing home is 
not ‘merely routine.’ ” Ibid. Accord Caremore, Inc. v. 
NLRB, 129 F.3d 365, 370 (6th Cir. 1997); Grancare, Inc. 

v. NLRB, 137 F.3d 372, 376 (6th Cir. 1998); Mid- 

8 As this Court has noted, courts have accorded the Board “a 
large measure of informed discretion” in determining when the 
“authority ‘responsibly to direct’ the work of others” requires a 
finding of supervisory status. Marine Eng’rs Beneficial Ass’n v. 
Interlake S.S. Co., 370 U.S. 173, 179 n.6 (1962) (quoting NLRB v. 
Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961)). See also NLRB v. 
Erie Resistor Corp., 373 U.S. 221, 236 (1963) (courts must “recog- 
nize the Board’s special function of applying the general provisions 
of the Act to the complexities of industrial life”). 

18 

America Care Found. v. NLRB, 148 F.3d 638, 641 (6th 
Cir. 1998). 

The Sixth Circuit’s refusal to defer to the Board’s 
interpretation of “independent judgment” is based on 
the court’s belief that the Board’s interpretation repli- 
cates 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, 191 F.3d at 711 (quoting 
HCR, 511 U.S. at 577). As discussed pp. 2-3, 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 acknowledged that the statutory phrase “inde- 
pendent judgment” is “ambiguous” and, therefore, that 
the Board is entitled to “ample room” in applying it 
to “different categories of employees.” Id. at 579. The 
Court also recognized (without any indication of dis- 
approval) that, in other industries, the Board has 
applied “a distinction between authority arising from 
professional knowledge and authority encompassing 
front-line management prerogatives” in deciding 
whether employees exercise “independent” judgment. 
Id. at 583. Thus, the Sixth Circuit erred in concluding 
that the Board’s construction of “independent judg- 
ment” is foreclosed by HCR.9 

9 The court of appeals also erroneously concluded that the 
Board’s interpretation is not entitled to judicial deference under 
this Court’s decision in Allentown Mack Sales & Serv., Inc. v. 
NLRB, 522 U.S. 359 (1998). App., infra, 18a. In Allentown Mack, 

19 

c. The Sixth Circuit’s rejection of the Board’s inter- 
pretation of “independent judgment,” although consis- 
tent with decisions of the Third and Fourth Circuits, 
directly conflicts with decisions of the D.C., First, 
Seventh, Eighth and Ninth Circuits, which have 
accepted the Board’s interpretation. See NLRB v. 
Attleboro Assocs., Ltd., 176 F.3d 154, 163 (3d Cir. 1999) 
(noting conflict); Integrated Health Servs., 191 F.3d at 
713 (Jones, J., concurring) (same). 

Thus, in Beverly Enterprises-Pennsylvania, Inc. v. 
NLRB, 129 F.3d 1269 (1997) (per curiam), the D.C. 
Circuit agreed with the Board that “the question of 
independent judgment under section 2(11) is one of the 
degree of discretion exercised,” and the court of appeals 
upheld the Board’s conclusion that nurses who 
“assign[ed] and monitor[ed] the performance of discrete 
patient care tasks * * * and sometimes assign[ed] 
[aides] to particular patient rooms within a wing” were 
not supervisors. Id. at 1270. Similarly, in NLRB v. 
Hilliard Development Corp., 187 F.3d 133, 142-143 
(1999), the First Circuit deferred to the Board’s inter- 
pretation, explaining that it “harmonizes the Act’s 
definitions of ‘supervisor’ and ‘professional employee’ in 
a sensible way, consistent with Congress’ intent to 
exclude as supervisors only those employees with 
‘genuine management prerogatives.’ ” 

In NLRB v. Grancare, Inc., 170 F.3d 662 (1999) (en 
banc), the Seventh Circuit held that, when nurses 
exercise their power “in fairly routine, preordained 

this Court, unlike the court of appeals here, afforded deference to 
the Board rule at issue. 522 U.S. at 363-366. The Court was criti- 
cal of the Board for “in practice its divorcing of the rule announced 
from the rule applied.” Id. at 376. In this case, however, the Board 
has not applied a rule different from the one that it has formally 
enunciated. 

20 

ways,” it is reasonable for the Board to conclude that 
“the ‘judgment’ of [nurses] in exercising their incidental 
supervisory authority over [aides] is not the ‘indepen- 
dent judgment’ concerned with management preroga- 
tives contemplated by §2(11) [but] [r]ather, it is more 
properly viewed as ‘professional judgment’ exercised in 
getting their assigned work done with [aides] employed 
for that purpose.” Id. at 668. And, in Beverly Enter- 
prises, Minnesota, Inc. v. NLRB, 148 F.3d 1042 (1998), 
the Eighth Circuit agreed with the Board that, given 
the employer’s system of protocols, its nurses did not 
exercise “independent judgment” in reassigning aides 
and reprioritizing their work when necessitated by 
“changes in patient condition, changes in personnel, and 
other circumstances.” Id. at 1047. Finally, in Provi- 
dence Alaska Medical Center v. NLRB, 121 F.3d 548, 
554 (1997), the Ninth Circuit upheld the Board’s con- 
clusion that, “[b]y exercising her professional judgment 
in [a] routine manner while working alongside and 
guiding less experienced employees, the charge nurse is 
not transformed into a supervisor.” 

However, like the court of appeals below, the Third 
and Fourth Circuits have rejected the Board’s interpre- 
tation. In Beverly Enterprises, Virginia, Inc. v. NLRB, 
165 F.3d 290 (1999) (en banc), the Fourth Circuit held 
that “independent judgment” is authority “exercised in 
a non-ministerial way to achieve management goals.” 
Id. at 295. In that court’s view, the exercise of author- 
ity is “ministerial” (and thus non-supervisory) only if it 
is so highly regimented by the employer’s standards 
that the standards leave no room for thought. See 
Glenmark Assocs., Inc. v. NLRB, 147 F.3d 333, 341 (4th 
Cir. 1998). See also Beverly Enterprises, Va., 165 F.3d 
at 303 (Phillips J. dissenting). Similarly, in Attleboro 
Associates, the Third Circuit concluded that nurses 

21 

exercise “supervisory judgment” in directing aides 
when the nurses “hold a superior rank to them and are 
entrusted by [the employer] to ensure the quality of 
care that residents receive.” 176 F.3d at 169; see also id. 
at 167 (holding that “decisions to assign workers are 
‘inseverable from the exercise of independent judg- 
ment’ ”) (quoting Glenmark Assocs., 147 F.3d at 342). 

The different holdings of the courts of appeals turn, 
in significant part, on whether or not the courts believe 
that the Board’s interpretation is foreclosed by HCR. 
Like the court of appeals here, the Third and Fourth 
Circuits have characterized the Board’s interpretation 
as an “end run” around HCR, but the Seventh and First 
Circuits have rejected that characterization. 

10 The dis- 
agreement among the courts of appeals on the proper 
interpretation of “independent judgment” prevents 
uniform administration of the Act on a significant issue 
of coverage. With en banc decisions on both sides of the 
conflict, there is no likelihood that the courts of appeals 
will reach consensus on this important issue absent this 
Court’s intervention. 

2. The holding of the court of appeals that the Board 
has the burden of proving that an employee is not a 
supervisor also warrants this Court’s review. That 

10 Compare Beverly Enterprises, Va., 165 F.3d at 296 (Board’s 
interpretation is “an end run around an unfavorable Supreme 
Court decision” and reflects a “policy bias”), and Attleboro 
Associates, 176 F.3d at 168 (Board’s interpretation “may be a false 
dichotomy intended to avoid the Supreme Court’s rejection of the 
‘patient care’ dichotomy in [HCR]”), with Grancare, 170 F.3d at 
666 (declining “to conjecture about whether the Board has tried to 
do an end run around [HCR]”), and Hilliard Development Corp., 
187 F.3d at 137 (finding “no reason not to apply our usual standard 
of deference to the Board’s interpretations of ambiguous portions 
of the Act”). 

22 

holding conflicts with the decisions of other courts of 
appeals, which have, both within and outside of the 
health care field, accepted the Board’s rule that the 
burden of proving supervisory status falls “on the party 
alleging that such status exists.” St. Alphonsus Hosp., 
261 N.L.R.B. at 624. 

The Board’s rule applies regardless whether the 
employer, the union, or the Board’s General Counsel is 
the party asserting supervisory status. Thus, an em- 
ployer 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 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). 
Furthermore, the Board applies the same rule to all 
industries subject to its jurisdiction. See, e.g., Commer- 
cial Movers, Inc., 240 N.L.R.B. 288, 290 (1979); Thayer 
Dairy Co., 233 N.L.R.B. 1383, 1387 (1977). 

As we have explained at p. 14, supra, Congress 
intended that the Act’s exclusion of supervisors from 
coverage would be limited. The Board’s rule effectu- 
ates 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 
presumes that all employees simply asserted by em- 
ployers to be supervisors are exempt from the Act’s 
coverage until proven otherwise.” Grancare, 137 F.3d 
at 378 (Moore, J., concurring). 

23 

The Board’s rule also accords with general principles 
governing the interpretation of statutory exemptions, 
including exemptions from the NLRA. See Holly 
Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996) 
(“[A]dministrators and reviewing courts must take care 
to assure that exemptions from NLRA coverage are 
not so expansively interpreted as to deny protection to 
workers the Act was designed to reach.”); FTC v. 
Morton Salt Co., 334 U.S. 37, 44-45 (1948) (noting “rule 
of statutory construction 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”). 

The decision of the court of appeals rejecting the 
Board’s method of allocating the burden of proof 
conflicts with decisions of other courts of appeals, which 
have accepted the Board’s method, both within and 
outside of the health care field. See Beverly Enter- 
prises, 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). See also NLRB v. Transportation Mgmt. Corp., 
462 U.S. 393 (1983) (upholding as reasonable Board’s 
allocation of burden of proof in another context). 

3. If the court of appeals had accepted the Board’s 
interpretation of “independent judgment” and its allo- 
cation of the burden of proving supervisory status, the 
court would have sustained the Board’s finding that the 
RNs working at Caney Creek are not supervisors. The 
RNs “are responsible for medical services, particularly 
when there are no doctors in the building, which is 
frequently the case.” App., infra, 17a. In that capacity, 
RNs sometimes give directions to other employees: for 

24 

example, the RN may direct an LPN to pass a particu- 
lar medication to a particular resident at a particular 
time or direct a rehabilitation assistant to assist her in 
treating a resident who is “really acting out”; or (when 
acting as building supervisor) she may direct a 
rehabilitation assistant to work his shift on a unit that 
would otherwise be understaffed. See pp. 6-7, supra. 
However, in issuing such directions, the discretion ex- 
ercised by the RN is based on her special professional 
competence and is circumscribed by the requirements 
of the resident’s treatment plan and respondent’s staff- 
ing policies. The Board thus reasonably concluded that 
the nurses do not exercise “independent judgment” in 
discharging those functions. See pp. 8-9, supra. 

As the court of appeals found, when they serve as 
building supervisors, the RNs have authority to “call 
employees into work” or “ask employees to remain on 
duty” but have no “authority to force an employee to 
work.” App., infra, 16a. The RD found that, in carry- 
ing out those functions, the RN follows a procedure 
established by respondent that circumscribes any dis- 
cretion exercised by the nurse. See p. 9, supra; App., 
infra, 53a. The Board therefore reasonably concluded 
that the judgment exercised by a nurse is more 
“routine” than “independent,” particularly as she can- 
not compel an employee to work. See, e.g., Providence 
Alaska Med. Ctr., 121 F.3d at 552-553. 

The court of appeals also found it significant that the 
building supervisor “is the highest ranking employee in 
the building” for “almost two thirds of the day.” App., 
infra, 16a, 18a. However, that circumstance, standing 
alone, does not compel a finding that the nurses are 
statutory supervisors. See Res-Care, 705 F.2d at 1467. 

Finally, because the court of appeals incorrectly 
placed the burden of proof on the Board, the court gave 

25 

undue weight to a memorandum stating that RNs have 
authority as building supervisors to “write up” employ- 
ees who do not “comply” with requests that they work 
their shifts on units that would otherwise be under- 
staffed. App., infra, 16a. Similarly, the court placed 
undue reliance on a company official’s assertion 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 supervi- 
sor.” Id. at 17a. 

The RD discounted the significance of the RNs’ puta- 
tive authority to write up employees because there was 
“no evidence in the record that they have ever” done so, 
and, in the only instance in the record in which “an RN 
made a complaint about another employee it was 
apparently ignored” by management. App., infra, 51a. 
Moreover, the record evidence also established that the 
nurses had never exercised their purported authority 
to send employees home. See Tr. 151-152, 153, 279. 

If the court of appeals had placed the burden on 
respondent to prove that the nurses are supervisors by 
virtue of their alleged authority to “write-up” employ- 
ees and to send employees home, the court would have 
upheld the Board’s conclusion, on this record, that 
respondent had failed to sustain its burden. See, e.g., 
OCAW v. NLRB, 445 F.2d 237, 243-244 (D.C. Cir. 1971) 
(Board reasonably concluded that “naked designations 
of ‘paper power’ ” by employer are negated by “the 
nearly total lack of evidence of authority actually exer- 
cised”), cert. denied, 404 U.S. 1039 (1972); Beverly En- 
terprises, Mass., 165 F.3d at 963 (“[A]bsent exercise, 
there must be other affirmative indications of authority. 
Statements by management purporting to confer 
authority do not alone suffice.”). 

26 

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

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

LEONARD R. PAGE 

General Counsel 

LINDA SHER 

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 

MAY 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
SIXTH CIRCUIT 

Nos. 97-5885, 97-5983 

KENTUCKY RIVER COMMUNITY CARE, INC., 
PETITIONER/CROSS-RESPONDENT 

v. 

NATIONAL LABOR RELATIONS BOARD, 
RESPONDENT/CROSS-PETITIONER 

KENTUCKY STATE DISTRICT COUNCIL 

OF CARPENTERS, AFL-CIO, INTERVENOR 

Argued Nov. 5, 1998 
Decided Oct. 4, 1999 

OPINION 

RYAN, Circuit Judge. 

This is another in an increasing number of cases 
involving the question whether nurses are supervisors 
within the meaning of the National Labor Relations 
Act, 29 U.S.C. § 152(11), in which we are required to 
direct the National Labor Relations Board to apply the 

(1a) 

2a 

law as this court has announced it, and not as the Board 
would prefer it to be. 

The petitioner, Kentucky River Community Care, 
Inc. (KRCC), seeks to avoid union certification, claim- 
ing that (1) it is a political subdivision and therefore not 
an “employer” subject to the National Labor Relations 
Act, and (2) even if it is an employer for purposes of the 
NLRA, its registered nurses and rehabilitation counsel- 
ors are “supervisors” and, therefore, exempt from the 
collective bargaining unit. 

The National Labor Relations Board cross petitions, 
seeking enforcement of its order requiring KRCC to 
bargain with the union. We hold that KRCC is not a 
political subdivision, and that while the registered 
nurses KRCC employs are supervisors, the rehabili- 
tation counselors are not. We therefore enforce the 
NLRB’s order except insofar as it includes the regis- 
tered nurses in the bargaining unit. 

I. 

KRCC is a nonprofit organization operating numer- 
ous mental health facilities throughout an eight-county 
region of Kentucky. One such facility is the Caney 
Creek Rehabilitation Center, which is the subject of 
this appeal. These facilities are transitional residential 
centers whose mission is to help patients become self 
sufficient. 

Because we first address the issue whether KRCC is 
a political subdivision, our review of the facts entails an 
inquiry into the KRCC corporate structure. 

3a 

A. 

The then-Chairman of the East Kentucky Health 
Planning Council, C. Vernon Cooper, Jr., filed the arti- 
cles of incorporation for KRCC on May 21, 1979. 
Cooper signed the articles as “a citizen of the Common- 
wealth of Kentucky,” and there is no indication from the 
articles or the manner in which Cooper signed his name 
that he was acting in any official capacity. The articles 
enumerate various purposes of the corporation. 
Principal among them is that KRCC was formed to 
provide mental health care; to serve as a regional 
mental health-mental retardation board; and to apply 
for, receive, and administer public and private funds. 
The articles are silent as to whether KRCC is to 
operate as an arm of the state or local government. 

According to the minutes of KRCC’s first board of 
directors meeting, “the [eight] County Judges . . . 
file[d] names for new mental health board members.” 
Subsequent vacancies have been filled by a vote of the 
remaining directors. The minutes also offer an insight 
into the reason KRCC was organized. Prior to KRCC’s 
incorporation, the Upper Kentucky River Regional 
Mental Health/Mental Retardation Comprehensive 
Care Center was responsible for providing mental 
health care to people living in the affected communities. 
Unnamed “local agencies” expressed concerns about 
the quality of mental health services being provided 
in the area due to staffing and personnel difficulties 
within the Board. In order to rectify the situation, the 
Kentucky Cabinet for Human Resources sent in a 
caretaker/administrator to run Upper Kentucky. In 
due course, Upper Kentucky dissolved, and KRCC was 
formed. 

4a 

At KRCC’s first meeting, the Deputy Commissioner 
for Mental Health of the Bureau for Health Services, 
“assured [the KRCC directors of] support from the 
[Kentucky] Cabinet for Human Resources.” Within a 
few weeks, the Cabinet for Human Resources issued an 
administrative order stating: 

WHEREAS, Kentucky River Community Care, 
Inc. has submitted a request to the [Cabinet] for 
Human Resources to be recognized as a regional 
community mental health-mental retardation board 
pursuant to the provisions of KRS 210.370 to 
210.480; and 

WHEREAS, Kentucky River Community Care, 
Inc. has expressed its intention to bring its board 
composition, by-laws, articles of incorporation and 
operations into compliance with all [Cabinet] for 
Human Resources standards as rapidly as possible; 

NOW, THEREFORE, by the authority vested in 
me by KRS 210.370 to 210.480 and 902 KAR 6:030(2) 
relating to regional mental health-mental retarda- 
tion boards, I, Peter D. Conn, Secretary of the 
[Cabinet] for Human Resources, do hereby recog- 
nize Kentucky River Community Care, Inc. as the 
regional mental health-mental retardation board for 
the counties of Breathitt, Knott, Lee, Leslie, 
Letcher, Owsley, Perry, and Wolfe, contingent upon 
full compliance with all applicable laws, regulations 
and policies within one hundred and twenty days 
(120) from the effective date of this Order. 

5a 

KRCC’s bylaws refer to the provisions of the 
Kentucky Revised Statutes addressing mental health 
and mental retardation services. The bylaws require 
the board of directors to “[r]eview and evaluate mental 
health and mental retardation services provided pur- 
suant to KRS 210.370 to 210.480, and report thereon to 
the Secretary for Health Services. . . .” In addition, 

KRCC’s board of directors must ensure that its 
programs comply with the regulations issued under 
Kentucky Revised Statutes sections 210.370 to 210.480. 
The bylaws also contain a provision requiring the board 
of directors to be representative of the counties KRCC 
serves as specified in Kentucky Revised Statutes sec- 
tion 210.380. Although referring to the statutory 
scheme, the bylaws, like the articles of incorporation, 
are silent as to whether KRCC was formed to act as an 
administrative arm of the state. 

KRCC and the Kentucky Cabinet for Health Serv- 
ices, Department for Mental Health and Mental Re- 
tardation Services entered into a contract in which 
KRCC agreed to provide mental health services within 
its eight-county region. A separate contract governed 
the operations of the Caney Creek Rehabilitation 
Center. These contracts incorporated by reference the 
statutory scheme found in Chapter 210 of the Kentucky 
Revised Statutes. The contracts contained guidelines 
for the services KRCC provides and eligibility restric- 
tions for patients. For example, KRCC must meet 
certain staffing requirements, submit budget proposals, 
and develop personnel policies. KRCC must comply 
with these provisions in order to receive state funding. 

6a 

B. 

Early in 1997, the Kentucky State District Council 
of Carpenters, AFL-CIO, an intervenor in this suit, 
petitioned the NLRB for certification as the collective 
bargaining representative for Caney Creek’s 110 
employees. There are four, 20-bed units at the facility, 
and each is staffed with five rehabilitation counselors 
and 10 rehabilitation assistants. Caney Creek employs 
six registered nurses and a licensed practical nurse to 
provide care throughout all the units. The facility is 
staffed 24 hours per day, with a full staff in place only 
on the first shift. 

At the NLRB representation hearing, KRCC object- 
ed to union certification, claiming that it was a “political 
subdivision” within the meaning of section 2(11) of the 
NLRA, and therefore not an employer whose employ- 
ees could be organized. KRCC also argued that even if 
it were not a political subdivision, its registered nurses 
and rehabilitation counselors could not be included in 
any proposed bargaining unit because these employees 
were supervisors. The NLRB conducted a hearing on 
the issues. 

After the hearing, but before a decision was issued, 
KRCC moved to reopen the record, seeking to intro- 
duce certain evidence that had been excluded by the 
hearing officer. The additional evidence comprised 
information concerning the control or potential control 
by state agencies of KRCC’s operations. The NLRB 
denied this request, concluding that the evidence at 
issue “went merely to the financial or administrative 
governmental control or potential control over its 

7a 

operations,” and that the decision of the hearing officer 
to exclude the proffered evidence was not prejudicial 
error. 

The NLRB Regional Director then issued a decision 
and direction of election, rejecting KRCC’s claim that 
it was a political subdivision and its claim that the regis- 
tered nurses and rehabilitation counselors were super- 
visors. KRCC requested review of the Regional Direc- 
tor’s decision, but the NLRB denied the request. 

Shortly thereafter, an election was held, and the 
employees voted in favor of union representation. The 
Regional Director certified the Union as the exclusive 
collective-bargaining representative, but KRCC re- 
fused the Union’s requests to bargain. The NLRB then 
issued a complaint alleging that KRCC’s refusal to bar- 
gain violated sections 8(a)(1) and 8(a)(5) of the NLRA. 
KRCC responded that the union certification was 
invalid because it is not an employer within the mean- 
ing of section 2(2) of the NLRA. The NLRB upheld the 
union certification, and found that KRCC’s refusal to 
bargain was an unfair labor practice. The NLRB 
ordered KRCC to bargain with the Union. It is from 
this decision and order that KRCC now appeals. 

II. 

In an appeal from an NLRB decision, we review the 
board’s legal conclusions de novo and its factual findings 
under a substantial evidence standard. See NLRB v. 
Good Shepherd Home, Inc., 145 F.3d 814, 816 (6th Cir. 
1998). We must consider the entire record to determine 
whether the NLRB’s findings are supported by 

8a 

substantial evidence. See Grancare, Inc. v. NLRB, 137 
F.3d 372, 375 (6th Cir. 1998). 

III. 

First, we must decide whether KRCC is a political 
subdivision: if it is, it is not an employer subject to the 
NLRA. 29 U.S.C. § 152(2). KRCC argues that the 
NLRB’s decision that KRCC is not a political sub- 
division is not supported by substantial evidence. 
KRCC claims the NLRB incorrectly applied the test to 
determine whether it qualified as a political subdivision, 
and also that the hearing officer erroneously excluded 
evidence that would have helped KRCC substantiate 
its claim that it is an arm of the government. 

A. 

Section 2(2) of the NLRA excludes from the 
definition of employer “any State or political sub- 
division thereof.” 29 U.S.C. § 152(2). The Supreme 
Court has held that an entity is exempt from the NLRA 
if it is either “(1) created directly by the state, so as to 
constitute [a] department[] or administrative arm[] of 
the government, or (2) administered by individuals who 
are responsible to public officials or to the general 
electorate.” NLRB v. Natural Gas Util. Dist., 402 U.S. 
600, 604-05, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971). 

In its decision and direction of election, the NLRB 
Regional Director applied the test articulated in 
Natural Gas and concluded that KRCC was not created 
as an arm of the state, and that KRCC was not ad- 
ministered by individuals who are responsible to public 
officials or the general electorate. 

9a 

1. 

To satisfy the first prong of the Natural Gas test, 
KRCC must show that it was created directly by the 
state, and that the state intended KRCC to operate 
as an arm of state government. KRCC claims it was 
created directly by the state, thus satisfying the first 
part of the test. In support, KRCC maintains that both 
state and county officials actively participated in 
creating KRCC; that a public official filed the articles of 
incorporation; that local government agencies request- 
ed the dissolution of KRCC’s predecessor; and that 
county judges assisted in selecting KRCC’s initial 
board of directors. KRCC argues that it would not 
exist but for the initiative of the various public officials 
involved. 

In Crestline Memorial Hospital Association v. 
NLRB, 668 F.2d 243 (6th Cir. 1982), the hospital 
claimed exemption from the NLRA under the political 
subdivision exception. The city of Crestline leased 
facilities to Crestline Memorial Hospital on the 
condition that Crestline Memorial operate these facili- 
ties as a municipal general hospital. See id. at 244. This 
court rejected the hospital’s contention, noting that the 
hospital could not have been “created by the state” 
because “it was and remains a private, nonprofit 
corporation . . . operating certain facilities leased 
from the City.” Id. at 245. 

The facts in Crestline are analogous to the situation 
we address here. KRCC is a private, nonprofit corpora- 
tion, operating mental health and mental retardation 
facilities pursuant to contracts. There is nothing in 
KRCC’s articles of incorporation to support its claim 

10a 

that it was created by the state. Cooper filed the artic- 
les of incorporation as an individual, and the Common- 
wealth of Kentucky took no government action to 
create KRCC. Only after the corporation was formed 
did the Cabinet for Human Resources “recognize” it as 
a mental health-mental retardation board. We are 
satisfied that KRCC was not formed directly by the 
state, as required by the first prong of the Natural Gas 
test, and because we find it was not, it is unnecessary to 
address KRCC’s next series of arguments that purport 
to show that the state intended KRCC to serve as an 
arm of the Kentucky government. 

2. 

We turn next to the alternative basis announced in 
Natural Gas for determining whether KRCC is a politi- 
cal subdivision of the state: whether, as KRCC claims, 
it is “administered by individuals who are responsible 
to public officials or to the general electorate.” Id. 

KRCC argues, first, that because the Secretary of 
the Cabinet for Human Resources has significant 
control over KRCC’s operations, KRCC is an organi- 
zation run by individuals responsible to public officials. 
Specifically, the Secretary has authority to appoint a 
caretaker for KRCC and make personnel changes 
without the consent of the corporation’s board. In 
addition, the Secretary has authority to review and 
disapprove of the board’s personnel policies and com- 
pensation plans. The Cabinet for Human Resources 
also dictates the services KRCC will provide and how 
many employees KRCC will need. Therefore, KRCC 
claims, it is responsible to the Secretary of the Cabinet 
for Human Resources. 

11a 

To be sure, the Secretary of the Cabinet for Human 
Resources exercises significant oversight of KRCC’s 
operations. The oversight arises because KRCC has 
sought recognition as a local mental health-mental re- 
tardation board, but it does not necessarily follow that 
such oversight means that the individuals in charge at 
KRCC are responsible to public officials. We find noth- 
ing in the oversight authority of the Cabinet for Human 
Resources or in the internal structure of the KRCC 
that makes the individuals in charge at KRCC respon- 
sible to the Cabinet for Human Resources. 

Second, KRCC argues that the state controls the 
composition of KRCC’s board of directors, and, there- 
fore, the directors are answerable to the state, thus 
satisfying the second prong of the Natural Gas test. 
KRCC selects its board members in the fashion 
required by Kentucky law governing mental health- 
mental retardation boards. The statute specifies that 
the board of directors must be representative of the 
community the corporation serves. See Ky. Rev. Stat. 
§ 210.380. The law also provides that the “appointing 
authority” may remove a board member for certain 
misconduct. See Ky. Rev. Stat. § 210.390. In the event 
of a vacancy on the KRCC board of directors, the re- 
maining board members select a replacement. 

In Pikeville United Methodist Hospital of Kentucky, 
Inc. v. United Steelworkers of America, AFL-CIO- 
CLC, 109 F.3d 1146 (6th Cir. 1997), this court addressed 
this second prong of the political subdivision test of 
Natural Gas, requiring responsibility to public officials. 
We concluded that the hospital administrators in 
Pikeville were not responsible to public officials, noting 
that “[n]o law or ordinance . . . requires that the 

12a 

board of directors . . . be elected by the general 
populace or requires that those board members be 
public officials. . . .” Id. at 1151. We noted also that 

the city could not control the composition of the board 
of directors. See id. 

Contrary to KRCC’s assertions, neither any Ken- 
tucky public official nor the general public control the 
composition of KRCC’s board of directors. KRCC com- 
plies with the state law requiring the board to be repre- 
sentative of the community served, but this is only 
because KRCC seeks to operate as a local mental 
health-mental retardation board. 

Section 210.390 of the Kentucky Revised Statutes 
provides: 

. . . Any member of a board may be removed by 
the appointing authority for neglect of duty, mis- 
conduct or malfeasance in office, after being given a 
written statement of charges and an opportunity to 
be heard thereon. 

Ky. Rev. Stat. § 210.390. KRCC asks us to read that 
provision as giving the state the power to remove 
directors. Considering that vacancies on the board are 
filled by a vote of the remaining board members, it is 
unlikely that the state is the “appointing authority.” It 
is more likely that the board of directors itself is the 
appointing authority. However, we need not answer 
this question. Assuming arguendo that the state can 
remove a director for misconduct, we are not persuaded 
that KRCC is run by individuals responsible to public 
officials or to the general electorate. KRCC chose to 
subject itself to this regulation by becoming a local 

13a 

mental health-mental retardation board. If KRCC 
ceased operating as a local board, the state would no 
longer have any influence over the board of directors. 

Therefore, we conclude that substantial evidence 
supports the NLRB conclusion that KRCC was not 
created by the state and is not administered by in- 
dividuals that are responsible to public officials or to 
the general electorate, as required by Natural Gas, 402 
U.S. at 604-05, 91 S.Ct. 1746. 

B. 

KRCC next argues that the hearing officer should 
have permitted the introduction of evidence which 
would have helped establish that KRCC was created 
for a public purpose and show that the state retained 
control of its operations. 

The proffered testimony spoke to the following 
points: the state’s ability to effectuate change in per- 
sonnel policies at KRCC; the state’s authority to 
appoint a caretaker/administrator in emergency situa- 
tions; the state’s past appointment of caretakers; the 
requirement that the state review any collective bar- 
gaining agreement; and testimony from a legislator 
about the initial legislative rationale behind creation of 
the local boards. KRCC also proffered an affidavit from 
a former governor of Kentucky containing his thoughts 
and opinion that the boards are agencies of the state. 

We review for an abuse of discretion the decision to 
exclude evidence. Dayton Hudson Dep’t Store Co. v. 
NLRB, 79 F.3d 546, 552 (6th Cir. 1996). Insofar as 
the evidence the ALJ excluded relates to the state’s 

14a 

authority to effectuate change in personnel policies and 
to appoint a caretaker in emergencies, the record al- 
ready contained the statutes and regulations support- 
ing these. See Ky. Rev. Stat. § 210.440(3); 908 Ky. 
Admin. Regs. 2:020.2. Therefore, the decision to ex- 
clude this cumulative evidence cannot be said to have 
unfairly prejudiced KRCC. See Segal v. Cook, 329 F.2d 
278, 280 (6th Cir. 1964). 

The former governor’s opinion as to whether KRCC 
is a political subdivision as defined by federal law, is 
manifestly an opinion on a matter of law, and therefore 
not competent evidence on the question. See Western 
Air Lines, Inc. v. Board of Equalization, 480 U.S. 123, 
131 n.*, 107 S.Ct. 1038, 94 L.Ed.2d 112 (1987). Testi- 
mony from a drafter of the Kentucky statutory scheme 
sheds no light on whether the Commonwealth of Ken- 
tucky formed KRCC to act as an arm of the govern- 
ment; nor is it instructive as to whether the individuals 
running KRCC are responsible to public officials or to 
the general electorate. All the testimony might have 
provided is one legislator’s understanding of the 
meaning of the statute. Therefore, we reject KRCC’s 
contention that the ALJ abused his discretion in 
excluding the proffered evidence. 

IV. 

KRCC maintains that even if it is an employer 
subject to the NLRA, the registered nurses and re- 
habilitation counselors it employs are supervisors and 
therefore exempt from the collective bargaining unit 
under 29 U.S.C. § 152(11). The NLRA applies to 
“employees.” 29 U.S.C. § 152(3). Individuals employed 

15a 

as supervisors are specifically excluded from the defini- 
tion of employee. See id. 

The NLRA defines “supervisor” as: 

any individual having authority, in the interest of 
the employer, to hire, transfer, suspend, lay off, 
recall, promote, discharge, assign, reward, or dis- 
cipline other employees, or responsibly to direct 
them, or to adjust their grievances, or effectively to 
recommend such action, if in connection with the 
foregoing the exercise of such authority is not of a 
merely routine or clerical nature, but requires the 
use of independent judgment. 

29 U.S.C. § 152(11). Thus, an employee is a supervisor 
if he (1) has the authority to engage in one of the 
activities enumerated in section 152(11), (2) uses inde- 
pendent judgment in that activity, and (3) does so in the 
interest of the employer. See Grancare, 137 F.3d at 
375. This definition is a substantively binding rule of 
law in this court that is no longer open to question. 

In concluding that KRCC’s registered nurses and 
rehabilitation counselors are not supervisors, the 
NLRB assigned the burden of proving supervisory 
status to KRCC. This ignores our repeated admonition 
that “[t]he [NLRB] has the burden of proving that 
employees are not supervisors.” Id. KRCC claims the 
registered nurses and rehabilitation counselors exercise 
independent judgment in directing other employees, 
and do so in the interest of the employer. The Board 
found that they do not. 

16a 

Although we have issued a number of opinions in the 
last year finding that nurses are supervisors, and rejec- 
ting the NLRB’s stubborn insistence that they are not, 
we acknowledge that whether an employee is a super- 
visor is a highly fact-intensive inquiry, and therefore, 
each case must be scrutinized carefully. 

A. Nurses 

During some of the second and all of the third shift 
at Caney Creek—almost two thirds of the day—the re- 
gistered nurses act as building supervisors. Although a 
registered nurse is the highest ranking employee in the 
building throughout these periods, an administrator is 
always “on call.” According to Caney Creek’s pro- 
cedures, the registered nurses acting as building super- 
visors are “in charge of the facility and all rehabilitation 
staff.” The building supervisor is responsible for 
patient care and must ensure adequate staffing. Ac- 
cording to an internal memorandum in the record, the 
nurses acting as building supervisors at Caney Creek 
are authorized to shift staff between units and must 
“write up anyone who does not comply with the request 
immediately.” In addition, the nurses have authority to 
call employees into work early or ask employees to 
remain on duty beyond the normal end of shift in the 
event of staff shortages, although the nurses do not 
have authority to force an employee to work in these 
situations. The registered nurses do not retain keys to 
the facility, although they have access to a set of keys 
that they must give to the security guard when he 
comes on duty. 

The registered nurses are responsible for medical 
services, particularly when there are no doctors in the 
building, which is frequently the case. The registered 

17a 

nurses are also responsible for ensuring that the li- 
censed practical nurses properly dispense patient 
medications. The registered nurses do not make the 
initial work schedules, but they are expected to deal 
with situations in which the facility might become 
shorthanded for any reason. A nurse, acting as building 
supervisor, could send an employee home, but the nurse 
would then need to inform that employee’s immediate 
supervisor. 

Our task is to decide whether these responsibilities 
call for the exercise of “independent judgment” under 
section 152(11). Unfortunately, the NLRB has continu- 
ously interpreted “independent judgment” in a manner 
that is inconsistent with this circuit’s precedent. Ac- 
cording to NLRB interpretations, the practice of 
a nurse supervising a nurse’s aide in administering 
patient care, for example, does not involve “inde- 
pendent 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.” This court, however, has repeatedly 
rejected this interpretation, and found that nurses are 
supervisors when they direct assistants with respect to 
patient care, rectify staffing shortages, fill out evalua- 
tion forms, and serve as the highest ranking employee 
in the building during off-peak shifts. See Mid-America 
Care Foundation v. NLRB, 148 F.3d 638, 641 (6th Cir. 
1998). 

In Mid-America, we addressed the NLRB’s argu- 
ment that this court should defer to the board’s inter- 
pretation of “independent judgment.” In reversing the 
NLRB’s conclusion that nurses are not supervisors, we 

18a 

held that the NLRB interpretation was not entitled to 
the normal deference given to agency interpretations of 
ambiguous provisions because the rule announced 
differed from the NLRB’s actual application of this 
rule. See id. at 642. 

[W]hen an agency’s application of a statutory 
interpretation (which itself ordinarily would be 
entitled to deference) frustrates judicial review by 
“subtly and obliquely” revising the stated inter- 
pretation to impose a more stringent definition or a 
higher standard of compliance in certain factual 
contexts, Chevron deference is inappropriate. 

Id. (citing Allentown Mack Sales & Serv., Inc. v. 
NLRB, 522 U.S. 359, 118 S.Ct. 818, 827-28, 139 L.Ed.2d 
797 (1998) and Chevron, U.S.A., Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 
2778, 81 L.Ed.2d 694 (1984)). This court has continued 
to overturn NLRB decisions finding that nurses are not 
supervisors even though the nurses direct others in 
providing patient care, address scheduling shortages, 
and have some evaluative role with respect to other 
employees. This court, not the NLRB, is the ultimate 
interpreter of this statutory provision, and we again 
reject the NLRB’s wooden and narrow definition of the 
term “independent judgment.” 

The registered nurses at KRCC direct the LPNs in 
the proper dispensing of medication, regularly serve as 
the highest ranking employees in the building, seek 
additional employees in the event of a staffing shortage, 
move employees between units as needed, and have the 
authority to write up employees who do not cooperate 
with staffing assignments. These duties involve inde- 

19a 

pendent judgment which is not limited to, or inherent 
in, the professional training of nurses. These duties are 
supervisory in nature, and there can be no doubt that 
these activities are conducted in the interest of the 
employer. See NLRB v. Health Care & Retirement 
Corp. of Am., 511 U.S. 571, 577, 114 S.Ct. 1778, 128 
L.Ed.2d 586 (1994). After a careful examination of the 
record, we conclude that the evidence readily estab- 
lishes that Caney Creek’s registered nurses are super- 
visors, and does not support the NLRB’s decision to 
include them in the bargaining unit. 

B. Rehabilitation Counselors 

We turn finally to KRCC’s claim that the rehabili- 
tation counselors at Caney Creek are supervisors 
because they supervise the rehabilitation assistants. 
The job titles for the positions in question— 
rehabilitation counselor and rehabilitation assistant— 
would suggest, without more, some supervisory role for 
a counselor over an assistant. But it is the record 
evidence concerning their respective functions and 
their relationship to one another that is determinative. 

When a patient enters the facility, a rehabilitation 
counselor evaluates the patient’s needs and develops a 
comprehensive treatment plan, with the ultimate goal 
of helping the patient to become self-sufficient. This 
plan and any changes made to it must be approved by a 
psychiatrist. If the plan is approved, it is carried out on 
a daily basis primarily by the rehabilitation assistants. 

The job description for rehabilitation counselors does 
not explicitly reference supervisory responsibilities; 

20a 

however, it states that the counselors “[m]ay provide 
direction to assigned Rehabilitation Assistants and 
service provision to residents.” Counselors must hold a 
bachelor’s degree in a human services field; or an LPN 
certificate, together with 2 to 4 years of experience; or 
an associate’s degree in nursing without licensure. 

Rehabilitation counselors do not have any hiring re- 
sponsibilities. If a counselor observes an assistant act- 
ing inappropriately, the counselor discusses the matter 
with the assistant and tries to resolve the issue without 
resort to any formal procedures. If that approach fails, 
in order to resolve the issue the counselor prepares an 
incident report, but the counselors do not have any 
disciplinary authority beyond the incident report. The 
rehabilitation counselors do not have the authority to 
transfer assistants between units, and have no author- 
ity to address a rehabilitation assistant’s grievances. 

The rehabilitation counselors do not schedule the 
assistants. Each morning, the counselors meet with the 
assistants and the assistants volunteer for particular 
tasks. A counselor may also ask an assistant to work 
for a shorthanded unit. The assistants report to the 
counselors at “informal team meetings” as to how a 
patient is progressing or participating in the program. 

The job description form for rehabilitation assistants 
specifies that they report to a Treatment Assistant or a 
Treatment Coordinator. If a rehabilitation assistant 
has a problem with a patient, he contacts the counselor, 
and after a “back and forth” discussion, the counselor 
tells the assistant what to do. An assistant might also 
handle a problem with a patient on his own and then 
notify the proper person after the fact. The only 

21a 

educational requirement is a high school diploma or 
GED. 

The standards we have applied to the registered 
nurses apply with equal force to the rehabilitation coun- 
selors for determining whether the counselors are 
supervisors. The rehabilitation counselors must (1) 
have the authority to engage in one of the activities 
enumerated in section 152(11), (2) use independent 
judgment in that activity, and (3) do so in the interest of 
the employer. See Grancare, 137 F.3d at 375. 

At KRCC, the primary function of the rehabilitation 
counselor is to design a patient treatment plan. This 
does not, of itself, involve any supervisory authority. 
Neither does the working relationship between the 
counselors and assistants imply any supervision of the 
work of the assistants by the counselors. The counse- 
lors do not hire or fire the assistants, and they do not 
assign the assistants to particular units or patients. 
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. The 
record reflects more of a cooperative relationship be- 
tween the rehabilitation counselors and rehabilitation 
assistants, with each performing a distinct but comple- 
mentary function. Therefore, we hold that substantial 
evidence supports the NLRB’s decision that the re- 
habilitation counselors are not supervisors and there- 
fore to include them in the bargaining unit. 

V. 

For all of the foregoing reasons, we hold (1) that 
KRCC is not a “political subdivision” within the mean- 

22a 

ing of the NLRA; (2) that the registered nurses are 
supervisors within the meaning of the NLRA; and (3) 
that the rehabilitation counselors are not supervisors 
within the meaning of the NLRA. 

KRCC’s petition for review is GRANTED in part 
and DENIED in part, and the NLRB’s petition for en- 
forcement is GRANTED in part and DENIED in part. 

NATHANIEL R. JONES, Circuit Judge, dissenting. 

I concur with the majority’s holding in all respects 
but one: that the registered nurses at KRCC are 
“supervisors” and thus exempt from coverage under 
§ 2(11) of the NLRA, 29 U.S.C. § 152(11). Because I 
believe that the NLRB’s conclusion to the contrary is 
supported by substantial evidence (i.e., that the regis- 
tered nurses are “employees” within the meaning of 
§ 2(3) of the Act, 29 U.S.C. § 152(3)), I would vote to 
enforce the NLRB’s Order. Accordingly, I respectfully 
dissent. 

The majority correctly notes that the NLRB’s factual 
findings must be affirmed if they are supported by 
substantial evidence. See ante at 455. But the majority 
fails to articulate precisely what “substantial evidence” 
is. As we have frequently held in Social Security 
disability cases—cases of agency review where the 
“substantial evidence” standard likewise controls—sub- 
stantial evidence is more than a mere scintilla, but less 
than a preponderance of the evidence. See Cutlip v. 
Secretary of Health & Human Servs., 25 F.3d 284, 286 
(6th Cir. 1994) (per curiam); Brainard v. Secretary of 
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 
1989) (per curiam); see also Consolidated Edison Co. v. 

23a 

NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 
(1938). Substantial evidence is “such relevant evidence 
as a reasonable mind might accept as adequate to 
support a conclusion.” Consolidated Edison Co., 305 
U.S. at 229, 59 S. Ct. 206; accord Medical Rehabilita- 
tion Servs., P.C. v. Shalala, 17 F.3d 828, 831 (6th 
Cir.1994) (citing Richardson v. Perales, 402 U.S. 389, 
401, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971)); Brainard, 
889 F.2d at 681. If we determine, after reviewing the 
administrative record as a whole, that the NLRB’s 
factual findings are supported by substantial evidence, 
those findings must be affirmed, even if substantial 
evidence exists in the record to support an opposite 
decision. See Mullen v. Bowen, 800 F.2d 535, 545 (6th 
Cir. 1986) (en banc). A finding of substantial evidence 
thus mandates affirmance. See Kirk v. Secretary of 
Health & Human Servs., 667 F.2d 524, 535-37 (6th Cir. 
1981). 

Having conducted the “highly fact-intensive inquiry” 
required by the majority, ante at 453, I would find the 
NLRB’s determination—that the six registered nurses 
employed at KRCC are not supervisors—supported by 
substantial evidence. The NLRB found, in relevant 
part, as follows: 

The RNs do not receive any extra compensation 
for serving as “building supervisors” and do not 
have keys to the facility. 

* * * 

[T]he only extra responsibility assumed by the 
RNs when serving as “building supervisors” is to 

24a 

obtain needed help if for some reason a shift is not 
fully staffed. In the event a shift is understaffed, 
the RNs on duty will first attempt to find a volun- 
teer to stay over from among the employees on the 
proceeding [sic] shift. If a volunteer cannot be 
obtained from the employees on the preceding shift, 
the “building supervisor,” using a list containing the 
names, telephone numbers and addresses of the em- 
ployees, will attempt to reach an off- duty employee 
who lives nearby to come in and cover the shift. 
The “building supervisors” do not have any author- 
ity, however, to compel an employee to stay over or 
come in to fill a vacancy under threat of discipline. 

It appears 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 directives. The RNs 
may also complete incident reports, but so can any 
other employee. All incident reports are independ- 
ently investigated by the nursing or unit coordina- 
tors to determine if any disciplinary action is war- 
ranted and it does not appear that these manage- 
ment officials seek any input from the RNs in- 
volved. Although [KRCC] asserts . . . that RNs 
can “write-up” employees, there is no evidence in 
the record that they have ever done so. . . . 

25a 

* * * 

The RNs in their normal capacity or as “building 
supervisors” do not have the authority to hire, fire, 
reward, promote or independently discipline em- 
ployees or to effectively recommend such action. 
They do not evaluate employees or take any action 
which would affect their employment status. In- 
deed, the RNs, including when they are serving as 
“building supervisors,” for the most part, work 
independently and by themselves without any sub- 
ordinates. 

J.A., vol. II, at 297-98 (quotations in original). In 
my view, these well-reasoned findings unquestionably 
constitute “such relevant evidence as a reasonable mind 
might accept as adequate to support a conclusion” that 
the six RNs at KRCC are “employees” within the 
meaning of 29 U.S.C. § 152(3). 

I would therefore hold that the collective bargaining 
unit at KRCC includes the six registered nurses, and 
vote to enforce the NLRB’s July 10, 1997 Order in its 
entirety. 

26a 

APPENDIX B 

NATIONAL LABOR RELATIONS BOARD 

Case 9-CA-34926 

KENTUCKY RIVER COMMUNITY CARE, INC. AND 
KENTUCKY STATE DISTRICT COUNCIL OF 

CARPENTERS, AFL—CIO, UNITED BROTHERHOOD OF 
CARPENTERS AND JOINERS OF AMERICA 

Dated, Washington, D.C. July 10, 1997 

DECISION AND ORDER 

BY CHAIRMAN GOULD AND MEMBERS FOX AND 

HIGGINS 

Pursuant to a charge filed on May 20, 1997, the 
General Counsel of the National Labor Relations Board 
issued a complaint on May 22, 1997, alleging that the 
Respondent has violated Section 8(a)(5) and (1) of the 
National Labor Relations Act by refusing the Union’s 
request to bargain following the Union’s certification 
in Case 9-RC-16837. (Official notice is taken of the 
“record” in the representation proceeding as defined in 
the Board’s Rules and Regulations, Secs. 102.68 and 
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The 
Respondent filed an answer admitting in part and 
denying in part the allegations in the complaint. 

27a 

On June 11, 1997, the General Counsel filed a Motion 
for Summary Judgment. On June 13, 1997, the Board 
issued an order transferring the proceeding to the 
Board and a Notice to Show Cause why the motion 
should not be granted. On June 27, 1997, the Respond- 
ent filed a response. 

Ruling on Motion for Summary Judgment 

In its answer and response, the Respondent admits 
its refusal to bargain, but attacks the validity of the 
certification on the basis of the Board’s determination 
in the representation proceeding that the Respondent 
is an employer within the meaning of Section 2(2) of the 
Act. 

All representation issues raised by the Respondent 
were or could have been litigated in the prior repre- 
sentation proceeding. The Respondent does not offer to 
adduce at a hearing any newly discovered and pre- 
viously unavailable evidence, nor does it allege any 
special circumstances that would require the Board to 
reexamine the decision made in the representation pro- 
ceeding. We therefore find that the Respondent has 
not raised any representation issue that is properly 
litigable in this unfair labor practice proceeding. See 
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 
(1941). Accordingly, we grant the Motion for Summary 
Judgment.1 

1 In the underlying case, Member Higgins, without passing on 
the correctness of Management Training Corp., 317 NLRB 1355 
(1995), would have granted review with respect to the hearing 
officer’s exclusion of testimony concerning the extent of control 
exercised by the state over the Respondent. See his dissenting 
opinion in Aramark Corp., 323 NLRB No. 26 (Feb. 28, 1997). 

28a 

On the entire record, the Board makes the following 

FINDINGS OF FACT 

I. JURISDICTION 

At all material times, the Respondent, a private non- 
profit corporation, has been engaged in mental health 
care and rehabilitation at its Hazard, Kentucky facility. 
During the 12-month period preceding the issuance 
of the complaint, the Respondent in conducting its 
business operations described above, derived gross 
revenues in excess of $250,000 and purchased and 
received at its Hazard, Kentucky facility, goods valued 
in excess of $2000 directly from sources outside the 
Commonwealth of Kentucky. We find that the Re- 
spondent is an employer engaged in commerce within 
the meaning of Section 2(6) and (7) of the Act and that 
the Union is a labor organization within the meaning of 
Section 2(5) of the Act. 

II. ALLEGED UNFAIR LABOR PRACTICES 

A. The Certification 

Following the election held March 20, 1997, the Union 
was certified on April 7, 1997, as the exclusive col- 
lective-bargaining representative of the employees in 
the following appropriate unit: 

However, he agrees with his colleagues that no new matters are 
appropriately raised in the instant “technical” 8(a)(5) case and that 
summary judgment is therefore appropriate. 

29a 

All professional and nonprofessional employees, 
including rehabilitation counselors, registered nur- 
ses, the licensed practical nurse, rehabilitation assis- 
tants and recreational assistants employed by the 
Respondent at its Caney Creek Rehabilitation Com- 
plex, excluding all guards and supervisors as de- 
fined in the Act. 

The Union continues to be the exclusive representative 
under Section 9(a) of the Act. 

B. Refusal to Bargain 

Since April 24, 1997, the Union has requested the Re- 
spondent to bargain, and, since May 15, 1997, the Re- 
spondent has refused. We find that this refusal consti- 
tutes an unlawful refusal to bargain in violation of 
Section 8(a)(5) and (1) of the Act. 

CONCLUSION OF LAW 

By refusing on and after May 15, 1997, to bargain 
with the Union as the exclusive collective-bargaining 
representative of employees in the appropriate unit, the 
Respondent has engaged in unfair labor practices 
affecting commerce within the meaning of Section 
8(a)(5) and (1) and Section 2(6) and (7) of the Act. 

REMEDY 

Having found that the Respondent has violated Sec- 
tion 8(a)(5) and (1) of the Act, we shall order it to cease 
and desist, to bargain on request with the Union, and, if 
an understanding is reached, to embody the under- 
standing in a signed agreement. 

30a 

To ensure that the employees are accorded the serv- 
ices of their selected bargaining agent for the period 
provided by the law, we shall construe the initial period 
of the certification as beginning the date the Re- 
spondent begins to bargain in good faith with the 
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); 
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 
600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); 
Burnett Construction Co., 149 NLRB 1419, 1421 (1964), 
enfd. 350 F.2d 57 (10th Cir. 1965). 

ORDER 

The National Labor Relations Board orders that the 
Respondent, Kentucky River Community Care, Inc., 
Hazard, Kentucky, its officers, agents, successors, and 
assigns, shall 

1. Cease and desist from 

(a) Refusing to bargain with Kentucky State 
District Council of Carpenters, AFL—CIO, United 
Brotherhood of Carpenters and Joiners of America, as 
the exclusive bargaining representative of the em- 
ployees in the bargaining unit. 

(b) In any like or related manner interfering with, 
restraining, or coercing employees in the exercise of the 
rights guaranteed them by Section 7 of the Act. 

2. Take the following affirmative action necessary 
to effectuate the policies of the Act. 

(a) On request, bargain with the Union as the ex- 
clusive representative of the employees in the following 

31a 

appropriate unit on terms and conditions of employ- 
ment, and if an understanding is reached, embody the 
understanding in a signed agreement: 

All professional and nonprofessional employees, in- 
cluding rehabilitation counselors, registered nurses, 
the licensed practical nurse, rehabilitation assistants 
and recreational assistants employed by the Re- 
spondent at its Caney Creek Rehabilitation Com- 
plex, excluding all guards and supervisors as de- 
fined in the Act. 

(b) Within 14 days after service by the Region, post 
at its facility in Hazard, Kentucky, copies of the 
attached notice marked “Appendix.” 2 Copies of the 
notice, on forms provided by the Regional Director for 
Region 9 after being signed by the Respondent’s 
authorized representative, shall be posted by the 
Respondent and maintained for 60 consecutive days in 
conspicuous places including all places where notices to 
employees are customarily posted. Reasonable steps 
shall be taken by the Respondent to ensure that the 
notices are not altered, defaced, or covered by any 
other material. In the event that, during the pendency 
of these proceedings, the Respondent has gone out of 
business or closed the facility involved in these pro- 
ceedings, the Respondent shall duplicate and mail, at its 
own expense, a copy of the notice to all current 

2 If this Order is enforced by a judgment of a United States 
court of appeals, the words in the notice reading “Posted by Order 
of the National Labor Relations Board” shall read “Posted Pur- 
suant to a Judgment of the United States Court of Appeals En- 
forcing an Order of the National Labor Relations Board.” 

32a 

employees and former employees employed by the 
Respondent at any time since May 20, 1997. 

(c) Within 21 days after service by the Region, file 
with the Regional Director a sworn certification of a 
responsible official on a form provided by the Region 
attesting to the steps that the Respondent has taken to 
comply. 

Dated, Washington, D.C. 

July 10, 1997 

__________________________________ 
William B. Gould IV 

Chairman 

__________________________________ 
Sarah M. Fox 

Member 

__________________________________ 
John E. Higgins, Jr. 

Member 

[SEAL] NATIONAL LABOR RELATIONS BOARD 

33a 

APPENDIX 

NOTICE TO EMPLOYEES 
POSTED BY ORDER OF THE 
NATIONAL LABOR RELATIONS BOARD 

An Agency of the United States Government 

The National Labor Relations Board has found that 
we violated the National Labor Relations Act and has 
ordered us to post and abide by this notice. 

WE WILL NOT refuse to bargain with Kentucky 
State District Council of Carpenters, AFL—CIO, 
United Brotherhood of Carpenters and Joiners of 
America as the exclusive representative of the em- 
ployees in the bargaining unit. 

WE WILL NOT in any like or related manner inter- 
fere with, restrain, or coerce you in the exercise of the 
rights guaranteed you by Section 7 of the Act. 

WE WILL, on request, bargain with the Union and 
put in writing and sign any agreement reached on 
terms and conditions of employment for our employees 
in the bargaining unit: 

All professional and nonprofessional employees, 
including rehabilitation counselors, registered 
nurses, the licensed practical nurse, rehabilitation 
assistants and recreational assistants employed by 
us at our Caney Creek Rehabilitation Complex, 
excluding all guards and supervisors as defined in 
the Act. 

KENTUCKY RIVER COMMUNITY CARE, INC. 

34a 

APPENDIX C 

UNITED STATES OF AMERICA 
BEFORE THE NATIONAL LABOR RELATIONS 

BOARD 

Case 9-RC-16837 

KENTUCKY RIVER COMMUNITY CARE, INC., EMPLOYER 

AND 

KENTUCKY STATE DISTRICT COUNCIL OF 

CARPENTERS, AFL-CIO, UNITED BROTHERHOOD OF 

CARPENTERS AND JOINERS OF AMERICA, PETITIONER 

ORDER 

Employer’s Request for Review of the Regional 
Director’s Decision and Direction of Election is denied 
as it raises no substantial issues warranting review.1 

WILLIAM B. GOULD IV, CHAIRMAN 

SARAH M. FOX, MEMBER 

JOHN E. HIGGINS, JR., MEMBER 

Dated, Washington, D.C., March 21, 1997. 

1 Member Higgins agrees to deny review on the issue of 
whether the Employer is a “political subdivision” within the mean- 
ing of Section 2(2) of the Act. However, without passing at this 
time on the correctness of Management Training, 317 NLRB 1355, 
Member Higgins would grant review with respect to the hearing 
officer’s exclusion of testimony concerning the extent of control 
exercised by the state over the Employer. See Aramark, 323 
NLRB No. 26 (dissenting opinion). 

35a 

APPENDIX D 

UNITED STATES OF AMERICA 
BEFORE THE NATIONAL LABOR RELATIONS BOARD 

REGION 9 

CASE 9-RC-16837 

IN THE MATTER OF 

KENTUCKY RIVER COMMUNITY 
CARE, INC.,1 EMPLOYER 

AND 

KENTUCKY STATE DISTRICT COUNCIL OF 

CARPENTERS, AFL-CIO, UNITED BROTHERHOOD 
OF CARPENTERS AND JOINERS OF AMERICA, 
PETITIONER 

DECISION AND DIRECTION OF ELECTION 

Upon a petition duly filed under Section 9(c) of the 
National Labor Relations Act, as amended, a hearing 
was held before a hearing officer of the National Labor 
Relations Board, hereinafter referred to as the Board. 
Pursuant to the provisions of Section 3(b) of the Act, 
the Board has delegated its authority in this proceeding 
to the undersigned. 

Upon the entire record in this proceeding, the under- 
signed finds: 

1 The name of the Employer appears as amended at the hear- 
ing. 

36a 

1. In a posthearing motion, the Employer objected 
to the conduct of the hearing and moved to reopen the 
record. At the hearing and in its motion, the Employer 
contends that the hearing officer erred by refusing to 
permit it to introduce evidence in support of its position 
that it is a political subdivision of the Commonwealth of 
Kentucky. Specifically, the Employer maintains that 
the hearing officer refused to allow it to introduce evi- 
dence, through witnesses and affidavits, with respect to 
its relationship to, and the control exercised over its 
operations by, the State. 

The hearing officer ruled that the only relevant 
evidence was whether the Employer was a govern- 
mental entity or a political subdivision. Thus, she pre- 
cluded certain evidence which went to the issue of the 
control or potential control of various agencies of the 
Commonwealth of Kentucky over the Employer’s 
operations and limited the Employer to an offer of 
proof. I find that the hearing officer’s ruling rejecting 
such evidence does not constitute prejudicial error. In 
reaching this conclusion, I note that the State statutes 
under which the Employer was established as well as 
the contracts between the Employer and the relevant 
State agencies are in the record and that the Em- 
ployer’s offer of proof went merely to the financial or 
administrative governmental control or potential con- 
trol over its operations. 

In Management Training Corporation, 317 NLRB 
1355 (1995), the Board, in overruling Res-Care, Inc., 280 
NLRB 670 (1986), held that in determining whether to 
assert jurisdiction over an employer with close ties to a 
governmental entity it would consider only whether the 
employer meets the definition of “employer” under 

37a 

Section 2(2) of the Act and the applicable monetary ju- 
risdictional standards. The Board specifically held that 
it would no longer consider the control or potential con- 
trol by a governmental department or agency over the 
operations of an employer in determining whether such 
employer was excluded from the term “employer” as 
defined in Section 2(11) [sic] of the Act as a govern- 
mental entity or political subdivision thereof. Manage- 
ment Training Corporation, 317 NLRB at 1358. 
Accordingly, the hearing officer properly rejected 
evidence on the control or potential control of the 
Employer’s operations by various State agencies and 
her rulings on this issue and in all other respects are 
hereby affirmed and the Employer’s motion to reopen 
the record is denied. See, Mariah, Inc., 322 NLRB No. 
114 (1996). 

2. The Employer, a private nonprofit corporation 
with its principal office in Hazard, Kentucky, provides 
mental health care services to Kentucky residents at 25 
separate sites throughout an 8-county region in the 
eastern portion of the State. The only facility involved 
in this proceeding is the Caney Creek Developmental 
Complex located at Pippa Passes, Kentucky which pro- 
vides long-term care for severely ill mental residents. 
Contrary to the Petitioner, the Employer contends that 
it is exempt from the Board’s jurisdiction as a govern- 
mental entity or political subdivision of the Common- 
wealth of Kentucky. 

The record discloses that the Employer was incor- 
porated on May 21, 1979 by Vernon Cooper, Jr. who 
was, at the time, chairman of the East Kentucky Health 
Planning Council. Cooper incorporated the Employer at 
the suggestion of the Secretary of the Cabinet of Hu- 

38a 

man Resources. The Employer was incorporated pur- 
suant to Chapter 273, et seq., of the Kentucky Revised 
Statutes (KRS). The Employer’s operations appear to 
be, for the most part, governed by KRS Chapter 210, et 
seq., which authorizes the Cabinet of Human Resources 
to establish regional mental health and retardation 
boards to plan and administer grants for all local 
programs relating to mental health, mental retardation 
and alcohol and drug abuse. The enabling statute 
requires that the board of directors of any employer, 
which can apparently be either private or nonprofit, 
operating pursuant to KRS 210 be representative of the 
area served. 

At the time the Employer was incorporated, the 
county judges for each of the eight counties covered by 
the Employer’s jurisdiction appointed two members 
which made up the Employer’s original board of di- 
rectors. There are currently 20 board members, con- 
sisting of 2 individuals from each of the 8 counties 
served by the Employer and 4 at-large members. The 
board members serve a 4-year term and after the 
selection of the original board, vacancies on the board 
have been filled by applicants who are nominated and 
approved by current board members. The board mem- 
bers are not elected and are not responsible to any 
State official or entity. The board of directors appoints 
an executive director who has overall responsibility for 
directing the Employer’s operations. The current 
executive director is Dr. Louise Howell, whose office is 
located at the Employer’s headquarters in Hazard, 
Kentucky. 

The Employer contracts with the Commonwealth of 
Kentucky (Department for Mental Health and Mental 

39a 

Retardation) to provide the mental health services 
required by statute. The Employer currently has two 
contracts with the State. Its basic contract for all 
operations is effective July 1, 1996 through June 30, 
1997. In addition, the Employer has a “price contract” 
to provide the mental health services required by the 
State at the Caney Creek Rehabilitation Complex. In 
this connection, I find noteworthy the fact that when 
the State initially sought an employer to provide serv- 
ices at Caney Creek, it solicited bids from several 
entities, including both private and nonprofit corpora- 
tions. 

The contracts between the Employer and the State 
provide specific guidelines with respect to the type of 
services to be provided and the individuals entitled to 
treatment by the Employer. In addition, the contracts 
mandate that the Employer meet certain staffing re- 
quirements and comply with certain employment guide- 
lines. The Employer is required to submit a budget and 
a detailed staffing pattern to the State describing ex- 
penditures and employee benefits package, including 
employee health insurance, unemployment insurance, 
retirement plan, holidays, vacations and sick leave. The 
Employer is also required to develop and implement a 
personnel policy for its employees. Finally, the State 
performs periodic audits and investigations and ap- 
parently can even remove a member of the board of di- 
rectors for malfeasance in office. 

The Employer’s operational plan and budget must be 
approved by the applicable State agency before the 
Employer can apply for State grants or receive any 
monies from the State Department of Health Services. 
In this connection, the record discloses that a sub- 

40a 

stantial portion of the Employer’s budget is comprised 
of State grants and monies. However, the Employer 
receives various Federal grants and some of its opera- 
tional funds are obtained through Medicare, Medicaid 
and private reimbursement. 

Although the Employer must meet various State 
imposed requirements and its budget and operational 
plan must be approved by applicable State agencies, the 
Employer is apparently free to recruit, hire, discharge 
and discipline its employees. The Employer also has 
the apparent freedom to establish its own job classifi- 
cations and pay rates as long as they are within its 
overall budget. Finally, the Employer is administered 
by an independent board of directors. Although the 
board members apparently can be removed by the 
State for malfeasance in office, the current members of 
the board are not elected by the general public and are 
not responsible to any public official. 

In determining whether to assert jurisdiction over an 
employer with close ties to an exempt government 
entity, the Board, for several years, applied principles 
enunciated in Res-Care, Inc., supra. Under the Res- 
Care standards, the Board examined the control over 
essential terms and conditions of employment retained 
by both the employer and exempt entity to determine 
whether an employer was capable of engaging in mean- 
ingful collective bargaining. In Management Training 
Corporation, supra, the Board noted that the approach 
taken in Res-Care in determining whether to assert 
jurisdiction over employers with a relationship to 
exempt entities had resulted in confusion and lack of 
uniformity. Thus, in Management Training Corpora- 
tion, supra, the Board overruled Res-Care and held that 

41a 

in determining whether to assert jurisdiction over an 
employer with close ties to an exempt entity it would 
“only consider whether the employer meets the defini- 
tion of ‘employer’ under Section 2(2) of the Act and 
whether such employer meets the applicable monetary 
jurisdictional standards.” 

The record discloses that the Employer meets the 
definition of “employer” under Section 2(2) of the Act. 
In this connection, the Supreme Court has held that an 
employer is an exempt political subdivision under Sec- 
tion 2(2) of the Act if it is either (1) created as a de- 
partment or administrative arm of the government, or 
(2) administered by individuals who are responsible to 
public officials or the general public. NLRB v. The 
Natural Gas Utility District of Hawkins County, Ten- 
nessee, 402 U.S. 600 (1971). Although the Employer 
was established pursuant to a State statute and its 
budget, operational plan and staffing pattern must be 
approved by the applicable State agency, the Em- 
ployer, contrary to its assertion at the hearing and in its 
brief, does not constitute a department or administra- 
tive arm of the State. The cases cited by the Employer 
in its brief in support of its position that the Employer 
was created as an administrative arm of the State, 
Fayette Electric Co-Op, Inc., 308 NLRB 1071 (1992); 
Western Paper Products, Inc., 321 NLRB No. 118 
(1996); and Madison County Mental Health Center, 
Inc., 253 NLRB 258 (1980), are clearly distinguishable. 
In Fayette, the Board found that the employer’s gov- 
erning board of directors, unlike here, was responsible 
to the general electorate. In Western Paper, the Board 
found that a state receiver was not a department or 
administrative arm of the state and asserted juris- 
diction. The holding in Western Paper in no way 

42a 

supports the Employer’s position. Finally, in Madison 
County, the county established the employer and, un- 
like here, governed its entire operation, including its 
labor relations. 

Moreover, the Employer is not administered by 
individuals who are responsible to public officials or the 
general electorate. The Employer is administered by 
an independent board of directors whose members are 
appointed for 4-year terms by the other board mem- 
bers. Although members apparently may be removed 
by the State for malfeasance in office, there is no 
evidence that they are directly responsible to any State 
agency or official. The cases cited by the Employer in 
its brief do not support its position that the Employer is 
administered by individuals responsible to public 
officials or the general public. The primary cases relied 
on by the Employer, Lima and Allen County Com- 
munity Action, Inc., 304 NLRB 888 (1991); Woodbury 
County Community Action Agency, 299 NLRB 554 
(1990); and Economic Security Corp., 299 NLRB 562 
(1990), are inapposite. In all three of these cases, unlike 
here, the majority of their boards of directors were 
responsible by law to public officials or the general 
electorate. In Fayette, the other Board case cited by 
the Employer, as previously noted, the employer’s 
board of directors was directly responsible to the 
general electorate. Finally, the Supreme Court’s de- 
cision in NLRB v. The Natural Gas Utility District of 
Hawkins County, Tennessee, supra, cited by the Em- 
ployer, merely sets forth the criteria for an employer to 
qualify as a political subdivision of a governmental 
entity and has no relationship to the facts in the instant 
case. 

43a 

At the hearing and in its posthearing brief, the 
Employer contends that the law in this area is still 
unsettled and that the Board has changed its position 
on the issue at least three times in recent years. Thus, 
the Employer maintains that the control exercised by 
the State, particularly the State Cabinet of Human 
Resources, over its operations should be considered in 
determining whether to assert jurisdiction over its 
operations. However, the Employer has not cited, and 
I am not aware of, any case in which the Board has 
indicated that it may be considering revisiting the 
standards established in Management Training Cor- 
poration, supra, for determining whether to assert 
jurisdiction over an employer with a close relationship 
to an exempt entity. Finally, the Employer contends in 
its brief that if Management Training requires that 
jurisdiction be asserted over its operation it should be 
overruled. I am bound by Board law and do not have 
the authority, as suggested by the Employer in its 
brief, to overturn Board precedent. 

Based on the foregoing and the entire record, I find 
that the Employer is an “employer” within the meaning 
of Section 2(2) of the Act. NLRB v. The Natural Gas 
Utility District of Hawkins County, Tennessee, supra; 
Management Training Corporation, supra; Resident 
Home for the Mentally Retarded of Hamilton County, 
Inc., 239 NLRB 3 (1978). Moreover, the parties stipu- 
lated that the Employer has gross annual revenues in 
excess of $250,000 and, during the past 12 months, 
purchased and received at its Kentucky facilities goods 
valued in excess of $2,000 directly from points outside 
the Commonwealth of Kentucky. Accordingly, the Em- 
ployer is engaged in commerce within the meaning of 
the Act and it will effectuate the purposes of the Act to 

44a 

assert jurisdiction herein. Management Training Cor- 
poration, supra; Resident Home for the Mentally 
Retarded of Hamilton County, Inc., supra. 

3. The parties stipulated, and the record shows, that 
the Petitioner is a labor organization within the mean- 
ing of Section 2(5) of the Act, and it claims to represent 
certain employees of the Employer. 

4. A question affecting commerce exists concerning 
the representation of certain employees of the Em- 
ployer within the meaning of Section 9(c)(1) and Section 
2(6) and (7) of the Act. 

5. The Employer’s Caney Creek Rehabilitation 
Complex, herein called Caney Creek, is located at Pippa 
Passes, Kentucky and provides a wide range of services 
for residents who are suffering from severe mental 
illness. The Caney Creek facility employs ap- 
proximately 110 professional and nonprofessional em- 
ployees in a variety of job classifications. There is no 
history of collective bargaining affecting any of these 
employees. 

The Petitioner seeks to represent essentially all 
professional and nonprofessional employees employed 
by the Employer at its Caney Creek facility in any unit 
or units found appropriate. The Employer is in ap- 
parent agreement that a unit of all professional and 
nonprofessional employees at the Caney Creek facility 
is appropriate for the purposes of collective bargaining. 
Contrary to the Petitioner, however, the Employer 
would exclude the 20 rehabilitation counselors and 6 
registered nurses from the unit as supervisors within 
the meaning of Section 2(11) of the Act. 

45a 

Caney Creek is an 80-bed facility consisting of two 
wings, each of which is divided into two 20-bed units. 
The 4 units are equally staffed with 5 rehabilitation 
counselors and 10 rehabilitation assistants. There are 
apparently no physicians or psychiatrists employed 
directly by the Employer and such medical services 
are apparently obtained through a contract arrange- 
ment. However, Caney Creek employees, six 
registered nurses (RNs) and a licensed practical nurse 
(LPN), provide various medical services for the entire 
facility. There are also three recreational assistants 
employed by Caney Creek who are responsible for 
providing the residents with recreational therapy. In 
addition to the employees engaged in direct resident 
care, the facility also employs an unknown number of 
kitchen, dining room, housekeeping and maintenance 
employees. The Caney Creek facility is staffed 24 hours 
per day, 7 days per week, but apparently is fully staffed 
only on the first shift. 

The overall administrative responsibility for the 
Caney Creek is vested in the administrator, Leonard 
Echols, who reports to the Employer’s executive di- 
rector, Dr. Louise Howell who is located at the Em- 
ployer’s office at Hazard, Kentucky. Reporting to 
Echols is the assistant administrator, Peggy Mason; the 
two unit coordinators, one position being currently 
vacant and the other being filled by Mark Stone; the 
nursing coordinator, Alicia Cook; the medical records 
custodian, Lavenia Wright; the recreational counselor, 
Nathan Fugate; the department manager of house- 
keeping and maintenance, Edward Jacobs; and the 
kitchen supervisor, Deborah Beverly. In addition, the 
human resources director, Sharon Harris and account- 
ant supervisor, Alisha Craft, and her assistant, 

46a 

Elizabeth Pennington, who work out of the Employer’s 
Hazard, Kentucky office, perform managerial, super- 
visory or clerical duties for Caney Creek as well as 
other facilities operated by the Employer. 

The residents at Caney Creek are adult mentally 
handicapped individuals who are received from 
throughout the Kentucky psychiatric hospital system. 
The treatment provided at Caney Creek is based on a 
psychiatric rehabilitation activity program developed 
by Boston University and is designed to help the 
mentally retarded develop skills necessary to live 
independently and perhaps move into a normal com- 
munity setting. Upon being accepted at Caney Creek, 
residents are assigned to one of the four units. After a 
resident is assigned to a unit, a rehabilitation counselor 
reviews the resident’s medical history and, with input 
from family members, the rehabilitation assistant in- 
volved and medical and psychiatric personnel, prepares 
a detailed treatment plan which is submitted to the unit 
coordinator for approval. The individual treatment 
plan includes the goals to be achieved and the method 
of accomplishing the desired results. The treatment 
plan consists of an activity based program, including 
living care, social activity, money management and 
other activities designed to assist the resident perform 
to the maximum of his/her capabilities. The treatment 
plans are administered by the rehabilitation counselors 
along with the rehabilitation assistants in conjunction 
with medical and psychiatric personnel. 

Rehabilitation Counselors: 

The Caney Creek facility employs 20 rehabilitation 
counselors. There are five counselors on each of the four 

47a 

treatment units and each counselor is assisted by two 
rehabilitation assistants. The counselors work pri- 
marily on the first shift and report to the unit coordina- 
tors. The parties stipulated that the rehabilitation 
counselors are professional employees. Although there 
is some record testimony that an LPN could, with 
training and experience, become a rehabilitation coun- 
selor, all current counselors have at least a batchelor’s 
[sic] degree and some have or are currently pursuing a 
master’s degree. Further, the treatment plans formu- 
lated by the rehabilitation counselors require the exer- 
cise of independent discretion which can only be 
obtained through a course of study in an institution of 
higher learning. Accordingly, I find, in agreement with 
the parties, that the rehabilitation counselors are pro- 
fessional employees. 

Contrary to the Petitioner, the Employer contends 
that the rehabilitation counselors exercise supervisory 
authority over the rehabilitation assistants and are 
supervisors within the meaning of Section 2(11) of the 
Act. The rehabilitation counselors, as previously noted, 
develop and primarily administer the treatment plans 
for the residents. Each rehabilitation counselor is 
assigned to a specific number of residents for whom 
they are responsible. In addition to formulating and 
administering treatment plans, the rehabilitation coun- 
selors are responsible for conducting classes covering a 
wide range of subjects from living care and cooking to 
money management. Each rehabilitation counselor is 
assisted by two rehabilitation assistants. The rehabili- 
tation assistants not only assist the counselors in ad- 
ministering treatment plans but are responsible for 
making sure residents are awakened on time, attend 

48a 

scheduled classes, keep doctor’s appointments and are 
bathed and dressed. 

The rehabilitation counselors meet each morning and 
discuss the day’s schedule. During these morning 
meetings, the counselors determine what services need 
to be performed during the day and how best to ac- 
complish the necessary tasks. The rehabilitation coun- 
selors apparently designate certain tasks which can be 
performed by the rehabilitation assistants. Such 
assignments appear to be routine in nature and do not 
involve the exercise of independent judgment. In addi- 
tion, rehabilitation counselors will occasionally ask a 
rehabilitation assistant to perform specific tasks during 
the day such as making sure a resident goes to class or 
keeps a doctor’s appointment. However, there is no 
record evidence that the rehabilitation counselors in 
making such requests have any authority to compel 
that the assignments be completed. 

The rehabilitation counselors do not have the author- 
ity to hire, fire, discipline or reward employees. 
Although they can note any problem they observe on an 
incident report, the record shows that any employee 
may complete such a report. All incident reports are 
independently investigated by a unit coordinator who 
determines what, if any, disciplinary action is war- 
ranted. The counselors do not evaluate the rehabilita- 
tion assistants and their input is not sought by the unit 
coordinator responsible for appraising the rehabilita- 
tion assistants. The rehabilitation counselors are 
evaluated on leadership qualities but apparently so are 
all other employees. Finally, the job description for the 
rehabilitation counselors contains a reference to super- 
visory responsibilities which is marked not applicable. 

49a 

The records fails to establish that the rehabilitation 
counselors process any indicia of supervisory authority 
within the meaning of Section 2(11) of the Act. They do 
not have the authority to hire, fire, discipline, promote 
or evaluate employees and any assignment or direction 
which they may give other employees is routine in 
nature. The fact that the counselors formulate treat- 
ment plans which are administered in part by rehabili- 
tation assistants does not make the rehabilitation coun- 
selors supervisors within the meaning of Section 2(11) 
of the Act. See, Ten Broeck Commons, 320 NLRB 806 
(1996); Providence Hospital, 320 NLRB 717 (1996). In 
Providence Hospital, the Board specifically found that 
the mere authority to coordinate the work of similarly 
situated employees did not make an individual a 
supervisor. The Supreme Court’s decision in NLRB v. 
Health Care and Retirement Corp., 114 S. Ct. 1778 
(1994), cited by the Employer in its brief, does not re- 
quire a contrary finding. In Health Care, the Supreme 
Court merely repeated [sic] the Board’s “in the interest 
of the employer” test applied in the health care in- 
dustry, but did not disturb the Board’s trademark 
analysis in determining supervisory status. I also note 
that if the rehabilitation counselors were found to be 
supervisors within the meaning of the Act, there 
would be 20 supervisors for 40 employees. Such a 
supervisory/employee ratio is totally unrealistic and 
militates against finding the rehabilitation counselors to 
be supervisors. Manor West, Inc., 313 NLRB 956 
(1994); First Western Building Services, Inc., 309 
NLRB 591, 603 (1992); Bay Area Los Angeles Express, 
275 NLRB 1063 (1985). 

Based on the foregoing and the entire record, I find 
that the rehabilitation counselors are not supervisors 

50a 

within the meaning of Section 2(11) of the Act. Ac- 
cordingly, I shall include them in the unit. 

Registered Nurses (RNs): 

Caney Creek employs six RNs whom the Employer, 
contrary to the Petitioner, would exclude from the unit 
as supervisors within the meaning of Section 2(11) of 
the Act. There are two RNs on each of the three shifts. 
The RNs are responsible for dispensing medication to 
the residents and for providing any other medical 
services ordered by a resident’s physician or psychia- 
trist. 

The two RNs on duty during each shift are respon- 
sible for servicing the entire facility. The RNs assigned 
to the second and third shift also serve as “building 
supervisors” and the first shift RNs occupy this posi- 
tion on weekends. The RNs do not receive any extra 
compensation for serving as “building supervisors” and 
do not have keys to the facility. There are two some- 
what conflicting undated documents setting forth the 
duties of the “building supervisors.” The memorandum 
which all the RNs have apparently seen provides only 
that the “building supervisors” in the absence of all 
management officials, will call a “local” replacement 
employee in the event of a staff shortage utilizing “a list 
of employees with local employees highlighted.” The 
memorandum relied on by the Employer in its brief, 
which at least some of the RNs have apparently never 
seen, provides that the “building supervisors,” in addi- 
tion to securing replacement employees, will be the 
first person contacted when on duty concerning “the 
building, staff, staffing and residents . . . and [are] 
ultimately responsible for quality patient care.” 

51a 

A careful review of the record and the briefs of the 
parties discloses that, regardless of which memoran- 
dum is now in effect, the only extra responsibility 
assumed by the RNs when serving as “building super- 
visors” is to obtain needed help if for some reason a 
shift is not fully staffed. In the event a shift is 
understaffed, the RNs on duty will first attempt to find 
a volunteer to stay over from among the employees on 
the preceding shift. If a volunteer cannot be obtained 
from the employees on the preceding shift, the “build- 
ing supervisor,” using a list containing the names, tele- 
phone numbers and addresses of the employees, will 
attempt to reach an off-duty employee who lives nearby 
to come in and cover the shift. The “building super- 
visors” do not have any authority, however, to compel 
an employee to stay over or come in to fill a vacancy 
under threat of discipline. 

It appears 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 directives. The RNs may also 
complete incident reports, but so can any other em- 
ployee. All incident reports are independently investi- 
gated by the nursing or unit coordinators to determine 
if any disciplinary action is warranted and it does not 
appear that these management officials seek any 
input from the RNs involved. Although the Employer 
asserts in its brief that RNs can “write-up” employees, 
there is no evidence in the record that they have ever 
done so. Indeed, the only record evidence where an RN 
made a complaint about another employee it was 
apparently ignored. In this connection, one of the RNs 
reported that the LPN, with whom she worked, was 
abusive and had countermanded one of her orders. The 

52a 

record does not disclose that any corrective action was 
taken against the LPN. 

The RNs in their normal capacity or as “building 
supervisors” do not have the authority to hire, fire, 
reward, promote or independently discipline employees 
or to effectively recommend such action. They do not 
evaluate employees or take any action which would 
affect their employment status. Indeed, the RNs, 
including when they are serving as “building super- 
visors,” for the most part, work independently and by 
themselves without any subordinates. 

It is well settled that the burden of proving that an 
individual is a supervisor within the meaning of Section 
2(11) of the Act rests with the party asserting super- 
visory status. See, Northcrest Nursing Home, 313 
NLRB 491 (1993); Ohio Masonic Home, 295 NLRB 
1390, 1393 (1989). This burden was not altered, when 
considering the status of registered nurses, by the 
Supreme Court’s decision in NLRB v. Health Care and 
Retirement Corp., supra. In Health Care, which the 
Employer relies on its brief to support its position, the 
Supreme Court merely rejected the Board’s finding 
that supervisory authority exercised in connection with 
patient care is not in the interest of the employer. 
However, the Supreme Court left intact the Board’s 
traditional analysis of an individual’s duties to deter- 
mine whether the person possesses any indicia of 
supervisory authority within the meaning of Section 
2(11) of the Act. After considering the Supreme 
Court’s directives set forth in Health Care, the Board 
determined to apply the same test to registered nurses 
as is applicable to all other individuals in determining 
supervisory status. Providence Hospital, supra; Ten 

53a 

Broeck Commons, supra. This analysis is consistent 
with the congressional intent in enacting Section 2(11) 
of the Act. In this connection, Congress emphasized 
that its intention was that only supervisory per- 
sonnel vested with “genuine management preroga- 
tives” should be considered supervisors and not “straw 
bosses, leadmen, set-up men and other minor super- 
visory employees.” Chicago Metallic Corp., 273 NLRB 
1677, 1688 (1985). 

Based on the foregoing, the entire record and careful 
review of the Employer’s brief and cases cited therein, 
I find that the Employer has not met its burden of 
establishing that the RNs, even when serving as “build- 
ing supervisors,” are supervisors within the meaning of 
Section 2(11) of the Act. The 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. Ten Broeck Commons, supra; Northcrest Nurs- 
ing Home, supra; Phelps Community Medical Center, 
295 NLRB 486 (1989). The other duties performed by 
the RNs relate merely to providing typical medical 
services. Finally, I note that the RNs here have far 
less authority than the nurses in Providence Hospital, 
supra, and Ten Broeck Commons, supra, who the Board 
found not to be supervisors. Accordingly, I find that 
the RNs, including the “building supervisors,” are not 
supervisors within the meaning of Section 2(11) of the 
Act. I shall, therefore, include them in the unit. 

In agreement with the position of the parties, I find 
that the licensed practical nurse and the recreational 
assistants share a sufficient community of interest with 

54a 

the other employees to warrant their inclusion in the 
unit. Accordingly, I shall include them in the unit. 

The parties stipulated and the record shows, that the 
executive director, Dr. Louise Howell; the admini- 
strator of the Caney Creek facility, Leonard Echols, the 
assistant administrator of Caney Creek, Peggy Mason; 
the unit coordinator, Mark Stone; the nursing coordina- 
tor, Alicia Cook; the recreational coordinator, Nathan 
Fugate, the department manager for housekeeping and 
maintenance, Edward Jacobs; the kitchen supervisor, 
Deborah Beverly; the human resources manager, 
Sharon Harris; and the accountant supervisor, Alisha 
Craft, have the authority to hire, fire or discipline em- 
ployees or direct their work in a manner requiring the 
exercise of independent judgment and are supervisors 
within the meaning of Section 2(11) of the Act. Ac- 
cordingly, I shall exclude them from the unit. 

The parties also stipulated that Elizabeth Penning- 
ton, an assistant to the accountant supervisor, Alisha 
Craft, should be excluded from the unit. The record 
discloses that Pennington is located at the Employer’s 
Hazard, Kentucky office but performs some work for 
Caney Creek. However, there is no record testimony 
that she has any interest in common with any of the 
Caney Creek employees. In agreement with the stipu- 
lations of the parties, and as she lacks a community of 
interest with the other Caney Creek employees, I shall 
exclude Elizabeth Pennington from the unit. 

Based on the foregoing and the entire record, includ- 
ing the agreements and stipulations of the parties, I 
find that a wall-to-wall unit of the Employer’s pro- 
fessional and nonprofessional employees employed at 

55a 

its Caney Creek Rehabilitation Complex may be ap- 
propriate for the purposes of collective bargaining. The 
Board, however, is prohibited by Section 9(b)(1) of the 
Act from including professional employees in a unit 
with employees who are not professionals unless a ma- 
jority of the professional employees vote for inclusion 
in such unit. Sonotone Corporation, 90 NLRB 1236 
(1950). Accordingly, to ascertain the desires of the 
professional employees as to inclusion in a unit with 
nonprofessional employees, I shall direct separate 
elections in the following voting groups: 

VOTING GROUP A 

All employees, including the licensed practical 
nurse, recreational assistants and rehabilitation 
assistants employed by the Employer at its Caney 
Creek Rehabilitation Complex, excluding all pro- 
fessional employees, guards and supervisors as de- 
fined in the Act. 

VOTING GROUP B 

All professional employees, including rehabilita- 
tion counselors and registered nurses employed by 
the Employer at its Caney Creek Rehabilitation 
Complex, excluding all other employees, and all 
guards and supervisors as defined in the Act. 

The nonprofessional employees in Voting Group A 
will be polled to determine whether or not they desire 
to be represented for collective-bargaining purposes 
by the Kentucky State District Council of Carpenters, 
AFL-CIO, United Brotherhood of Carpenters and 
Joiners of America. 

56a 

The professional employees in Voting Group B will 
be asked two questions on their ballot: 

(1) Do you wish to be included with non- 
professional employees in a single unit for purposes 
of collective bargaining? 

(2) Do you wish to be represented for purposes 
of collective bargaining by Kentucky State District 
Council of Carpenters, AFL-CIO, United Brother- 
hood of Carpenters and Joiners of America? 

If a majority of the professional employees in Voting 
Group B vote “Yes” to the first question, indicating 
their wish to be included in a unit with nonprofessional 
employees, they will be so included. Their votes on the 
second question will then be counted together with the 
votes of the nonprofessional employees in Voting Group 
A to decide the representative issue for the entire unit. 
On the other hand, if a majority of the professional 
employees in Voting Group B do not vote for inclusion, 
they will not be included with the nonprofessional 
employees and their votes on the second question will 
then be separately counted to determine whether they 
desire to be represented by the Kentucky State District 
Council of Carpenters, AFL-CIO, United Brotherhood 
of Carpenters and Joiners of America in a separate 
professional unit. 

Although my final unit determination is based, in 
part, on the results of the elections in the two voting 
groups, I now make the following findings in regard to 
the appropriate unit: (1) if a majority of the pro- 
fessional employees vote for inclusion in a unit with 
nonprofessional employees, I find that the following em- 
ployees constitute a unit appropriate for the purposes 

57a 

of collective bargaining within the meaning of Section 
9(b) of the Act: 

All professional and nonprofessional employees, 
including rehabilitation counselors, registered 
nurses, the licensed practical nurse, rehabilitation 
assistants and recreational assistants employed by 
the Employer at its Caney Creek Rehabilitation 
Complex, excluding all guards and supervisors as 
defined in the Act. 

(2) if a majority of the professional employees do not 
vote for inclusion in the unit with nonprofessional 
employees, I find that the following groups of em- 
ployees constitute separate units appropriate for the 
purposes of collective bargaining within the meaning of 
Section 9(b) of the Act: 

(a) All employees, including the LPN, rehabili- 
tation assistants and recreational assistants em- 
ployed by the Employer at its Caney Creek Re- 
habilitation Complex, excluding all professional em- 
ployees, guards and supervisors as defined in the 
Act. 

(b) All professional employees, including reha- 
bilitation counselors and registered nurses em- 
ployed by the Employer at its Caney Creek Re- 
habilitation Complex, excluding all other em- 
ployees, and all guards and supervisors as defined 
in the Act. 

58a 

DIRECTION OF ELECTION 

An election by secret ballot will be conducted by the 
undersigned among the employees in the voting groups 
described above at the time and places set forth in the 
notices of election to be issued subsequently, subject to 
the Board’s Rules and Regulations. Eligible to vote are 
those in the voting groups who were employed during 
the payroll period ending immediately preceding the 
date of this Decision, including employees who did not 
work during that period because they were ill, on 
vacation, or temporarily laid off. Also eligible are 
employees engaged in an economic strike which com- 
menced less than 12 months before the election date 
and who retained their status as such during the 
eligibility period and their replacements. Those in the 
military services of the United States may vote if they 
appear in person at the polls. Ineligible to vote are em- 
ployees who have quit or been discharged for cause 
since the designated payroll period, employees engaged 
in a strike who have been discharged for cause since the 
commencement thereof and who have not been rehired 
or reinstated before the election date, and employees 
engaged in an economic strike which commenced more 
than 12 months before the election date and who 
have been permanently replaced. Those eligible shall 
vote whether or not they desire to be represented for 
collective-bargaining purposes by KENTUCKY STATE 
DISTRICT COUNCIL OF CARPENTERS, AFL-CIO, 
UNITED BROTHERHOOD OF CARPENTERS AND 
JOINERS OF AMERICA. 

59a 

LIST OF ELIGIBLE VOTERS 

In order to insure that all eligible voters may have 
the opportunity to be informed of the issues in the 
exercise of their statutory right to vote, all parties to 
the election should have access to a list of voters using 
full names, not initials, and their addresses which may 
be used to communicate with them. Excelsior Under- 
wear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman- 
Gordon Company, 394 U.S. 759 (1969); North Macon 
Health Care Facility, 315 NLRB 359 (1994). Accord- 
ingly, it is hereby directed that within 7 days of the 
date of this Decision 2 copies of an election eligibility 
list, containing the full names and addresses of all the 
eligible voters, shall be filed by the Employer with the 
undersigned who shall make the list available to all 
parties to the election. In order to be timely filed, such 
list must be received in Region 9, National Labor Re- 
lations Board, 3003 John Weld Peck Federal Building, 
550 Main Street, Cincinnati, Ohio 45202-3271, on or 
before February 28, 1997. No extension of time to file 
this list shall be granted except in extraordinary cir- 
cumstances, nor shall the filing of a request for review 
operate to stay the requirement here imposed. 

RIGHT TO REQUEST REVIEW 

Under the provisions of Section 102.67 of the Board’s 
Rules and Regulations, a request for review of this 
Decision may be filed with the National Labor Re- 
lations Board, addressed to the Executive Secretary, 
1099 - 14th Street, N.W., Washington, D.C. 20570. This 
request must be received by the Board in Washington 
by March 7, 1997. 

60a 

Dated at Cincinnati, Ohio this 21st day of February 
1997. 

/s/ RICHARD L. AHEARN 

RICHARD L. AHEARN, Regional Director 
Region 9, National Labor Relations Board 
3003 John Weld Peck Federal Building 
550 Main Street 
Cincinnati, Ohio 45202-3271 

61a 

APPENDIX E 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

Nos. 97-5885/5983 

KENTUCKY RIVER COMMUNITY CARE, INC., 
PETITIONER/CROSS-RESPONDENT 

v. 

NATIONAL LABOR RELATIONS BOARD, 
RESPONDENT/CROSS-PETITIONER 

KENTUCKY STATE DISTRICT COUNCIL OF 
CARPENTERS, AFL-CIO, INTERVENOR 

[Filed: Jan. 27, 2000] 

JUDGMENT 

BEFORE: JONES, RYAN, and BATCHELDER, Circuit 
Judges 

On October 4, 1999, we issued our decision enforcing 
in part and denying in part the National Labor Re- 
lations Board’s order requiring Kentucky River Com- 
munity Care, Inc. (“KRCC”) to bargain with a union 
purporting to represent various KRCC employees. In 

62a 

conformance with our October 4 opinion, we hereby 
ORDER AND ADJUDGE that: 

1. KRCC is not a political subdivision; it is an 
employer subject to the National Labor Rela- 
tions Act pursuant to 29 U.S.C. § 152(2). 

2. The registered nurses employed by KRCC are 
supervisors as defined under 29 U.S.C. § 152(11) 
and, therefore, are not employees under the Act. 
Because the registered nurses are not em- 
ployees, they are not proper members of the col- 
lective bargaining unit certified by the Board. 

3. The rehabilitation counselors employed by 
KRCC are not supervisors as defined under 29 
U.S.C. § 152(11) and, therefore, are employees 
under the Act. The rehabilitation counselors are 
proper members of the collective bargaining unit 
certified by the Board. 

4. Upon request, KRCC, its officers, agents, suc- 
cessors, and assigns, shall bargain with the 
Kentucky State District Council of Carpenters, 
AFL-CIO, as the exclusive representative of the 
employees in the bargaining unit defined as 
follows: 

All professional and nonprofessional employ- 
ees, including rehabilitation counselors, the 
licensed practical nurse, rehabilitation 
assistants and recreational assistants em- 
ployed by the Employer at its Caney Creek 
Rehabilitation Complex, excluding all 
guards and supervisors as defined in the Act 

63a 

(including, but not limited to, registered 
nurses). 

5. The parties shall bear their respective costs, 
including attorney fees. 

ENTERED BY ORDER OF THE COURT 

/s/ LEONARD GREEN 

LEONARD GREEN, Clerk 

64a 

APPENDIX F 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

97-5885/5983 

KENTUCKY RIVER COMMUNITY CARE, INC., 
PETITIONER/CROSS-RESPONDENT 

v. 

NATIONAL LABOR RELATIONS BOARD, 
RESPONDENT/CROSS-PETITIONER 

KENTUCKY STATE DISTRICT COUNCIL OF 
CARPENTERS, AFL-CIO, INTERVENOR 

[Filed: Mar. 23, 2000] 

ORDER 

BEFORE: JONES, RYAN AND BATCHELDER, Circuit 
Judges. 

The court having received a petition for rehearing en 
banc, and the petition having been circulated not only 
to the original panel members but also to all other 
active judges of this court, and no judge of this court 
having requested a vote on the suggestion for rehear- 
ing en banc, the petition for rehearing has been re- 
ferred to the original panel. 

65a 

The panel has further reviewed the petition for 
rehearing and concludes that the issues raised in the 
petition were fully considered upon the original sub- 
mission and decision of the cases. Accordingly, the 
petition is denied. Judge Jones would grant rehearing 
for the reasons stated in his dissent. 

Further, petitioner/cross-respondent’s motion for 
this court to consider new evidence relevant to the peti- 
tion for rehearing en banc is denied. 

ENTERED BY ORDER OF THE COURT 

/s/ LEONARD GREEN 

LEONARD GREEN, Clerk