NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
NATIONAL LABOR RELATIONS BOARD
KENTUCKY RIVER COMMUNITY CARE, INC., et al.
certiorari to the united states court of appeals for the sixth circuit
When co-respondent labor union petitioned the National Labor Relations Board to represent a unit of employees at respondents residential care facility, respondent objected to the inclusion of its registered nurses in the unit, arguing that they were supervisors under §2(11) of the National Labor Relations Act (Act), 15 U. S. C. §152(11), and hence excluded from the Acts protections. At the representation hearing, the Boards Regional Director placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and included the nurses in the unit. Thereafter, respondent refused to bargain with the union, leading the Boards General Counsel to file an unfair labor practice complaint. The Board granted the General Counsel summary judgment on the basis of the representation determination, but the Sixth Circuit refused to enforce the Boards order. It rejected the Boards interpretation of independent judgment in §2(11)s test for supervisory status, and held that the Board had erred in placing the burden of proving supervisory status on respondent.
1. Respondent carries the burden of proving the nurses supervisory status in the representation hearing and unfair labor practice proceeding. The Act does not expressly allocate the burden of proving or disproving supervisory status, but the Board has consistently placed the burden on the party claiming that the employee is a supervisor. That rule is both reasonable and consistent with Act, which makes supervisors an exception to the general class of employees. It is not contrary to the requirement that the Board must prove the elements of an unfair labor practice, because supervisory status is not an element of the Boards refusal-to-bargain charge. The Board must prove that the employer refused to bargain with the representative of a properly certified unit; the unit was not properly certified only if respondent successfully showed at the certification stage that some employees in the unit were supervisors. Pp. 36.
2. The Boards test for determining supervisory status is inconsistent with the Act. The Act deems employees to be supervisors if they (1) exercise 1 of 12 listed supervisory functions, including responsibly direct[ing] other employees, (2) use independent judgment in exercising their authority, and (3) hold their authority in the employers interest, §2(11). The Board rejected respondents proof of supervisory status on the ground that employees do not use independent judgment under §2(11) when they exercise ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards. Brief for Petitioner 11. This interpretation, by distinguishing different kinds of judgment, introduces a categorical exclusion into statutory text that does not suggest its existence. The text permits questions regarding the degree of discretion an employee exercises, but the Boards interpretation renders determinative factors that have nothing to do with degree: even a significant judgment only loosely constrained by the employer will not be independent if it is professional or technical. The Board limits its categorical exclusion with a qualifier that is no less striking: only professional judgment applied in directing less skilled employees to deliver services is not independent judgment. Hence, the exclusion would apply to only 1 of the listed supervisory functionsresponsibly to directthough all 12 require using independent judgment. Contrary to the Boards contention, Congress did not incorporate the Boards categorical restrictions on independent judgment when it first added supervisor to the Act in 1947. The Boards policy concern regarding the proper balance of labor-management power cannot be given effect through this statutory text. Because this Court may not enforce the Boards order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267, the Boards error precludes the Court from enforcing its order. Pp. 615.
193 F. 3d 444, affirmed.
Scalia, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I and III, in which Rehnquist, C. J., and OConnor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined.
NATIONAL LABOR RELATIONS BOARD, PETITIONER
KENTUCKY RIVER COMMUNITY
CARE, INC., et al.
on writ of certiorari to the united states court of appeals for the sixth circuit
Justice Stevens , with whom Justice Souter, Justice Ginsburg , and Justice Breyer join, concurring in part and dissenting in part.
In my opinion, the National Labor Relations Board correctly found that respondent, Kentucky River Community Care, Inc., failed to prove that the six registered nurses employed at its facility in Pippa Passes, Kentucky, are supervisors within the meaning of the National Labor Relations Act. While we are unanimous in holding that the Court of Appeals set aside that finding based upon an incorrect allocation of the burden of proof, we disagree as to whether the Court of Appeals correctly concluded that the Board misinterpreted the provision of the NLRA excluding supervisors from the Acts coverage. Moreover, even if I agreed with the majoritys view that the Boards interpretation was error, that error would not justify affirming the erroneous decision of the Court of Appeals.
In the proceedings before the Board, respondent relied heavily on the fact that two registered nurses (RNs) served as building supervisors on weekends, and on the second and third shifts. However, as the Regional Director who considered the evidence noted, the RNs received no extra compensation for serving as building supervisors and did not have keys to the facility. Instead, the only additional responsibility shouldered by the RNs when serving as building supervisors was that of contacting other employees if a shift was not fully staffed according to preestablished ratios not set by the RNs. However, the RNs had no authority to compel an employee to stay on duty or to come to work to fill a vacancy under threat of discipline.
With respect to the RNs regular duties, while they might occasionally request other employees to perform routine tasks, they had no authority to take any action if the employee refuse[d] their directives. 1 App. to Pet. for Cert. 51a. In their routine work, they had no authority to hire, fire, reward, promote, or independently discipline employees or to effectively recommend such action. They did not evaluate employees or take any action which would affect their employment status. Id. , at 52a. Indeed, the RNs, even when serving as building supervisors, for the most part work[ed] independently and by themselves without any subordinates. Ibid.
Based on his evaluation of the evidence, the NLRBs Regional Director applied the same test to registered nurses as is applicable to all other individuals in determining supervisory status. Ibid. Under that test, he concluded that only supervisory personnel vested with genuine management prerogatives should be considered supervisors and not straw bosses, leadmen, set-up men and other minor supervisory employees. Id., at 53a (quoting Chicago Metallic Corp. , 273 N. L. R. B. 1677, 1688 (1985)). He did, however, exclude from the bargaining unit 10 specific supervisors including the nursing coordinator. App. to Pet. for Cert. 54a.
Over the dissent of Judge Jones, the Court of Appeals set aside the Boards order. The panel majority first criticized the Board for ignoring its repeated admonition that the NLRB has the burden of proving that employees are not supervisors. Id., at 15a. After acknowledging that whether an employee is a supervisor is a highly fact-intensive inquiry, that majority concluded that the RNs duties as building supervisors involved independent judgment which is not limited to, or inherent in, the professional training of nurses. Id., at 18a19a. The panel majority also criticized the NLRB for interpreting the admittedly ambiguous statutory term independent judgment inconsistently with Sixth Circuit precedent. 2
Although it is not necessary to do so to overturn the Court of Appeals decision, the NLRB has asked us to reject the Sixth Circuits interpretation of the term independent judgment. In contrast to the Sixth Circuit, the NLRB interprets the term independent judgment as not including the exercise of ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards. 3 Providence Hospital and Alaska Nurses Assn. , 320 N. L. R. B. 717 (1996), enforced, 121 F. 3d 548 (CA9 1997); Nymed, Inc., 320 N. L. R. B. 806 (1996); see also, e.g., Graphics Typography, Inc., 217 N. L. R. B. 1047, 1053 (1975), enforced mem., 547 F. 2d 1162 (CA3 1976). The Boards interpretation is a familiar one, which has been routinely applied in other employment contexts. See Providence , 320 N. L. R. B., at 717; Graphics Typography , 217 N. L. R. B., at 1053. Applying that interpretation, the NLRB has concluded that in some cases the employees in question are supervisors, and that in others they are not. 4 See Brief for Petitioner, 1719, nn. 57 (collecting cases); see also Brief for Respondent Kentucky State District Council of Carpenters 36, n. 16 (collecting cases).
The question before us is whether the Boards interpretation is both rational and consistent with the Act. 5 NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 796 (1990) ; see Fall River Dyeing & Finishing Corp. v. NLRB , 482 U. S. 27, 42 (1987) . To my mind, the Boards test is both fully rational and entirely consistent with the Act.
The term independent judgment is indisputably ambiguous, and it is settled law that the NLRBs interpretation of ambiguous language in the National Labor Relations Act is entitled to deference. 6 See NLRB v. Health Care and Retirement Corporation (HCR), 511 U. S. 571, 579 (1994) ; Auciello Iron Works, Inc. v. NLRB , 517 U. S. 781, 787188 (1996) ; Curtin Matheson Scientific, Inc. , 494 U. S., at 786787. Such deference is particularly appropriate when the statutory ambiguity is compounded by the use of one ambiguous termindependent judgmentto modify another, equally ambiguous termnamely, responsibly to direct.
Moreover, since Congress has expressly provided that professional employees are entitled to the protection of the Act, there is good reason to resolve the ambiguities consistently with the Boards interpretation. At the same time that Congress acted to exclude supervisors from the NLRAs protection, it explicitly extended those same protections to professionals, who, by definition, engage in work that involves the consistent exercise of dis- cretion and judgment in its performance. 7 29 U. S. C. §152(12)(a)(ii). As this Court has acknowledged, the inclusion of professional employees and the exclusion of supervisors necessarily gives rise to some tension in the statutory text. Cf. NLRB v. Yeshiva Univ. , 444 U. S. 672, 686 (1980) . Accordingly, if the term supervisor is construed too broadly, without regard for the statutory context, then Congress inclusion of professionals within the Acts protections is effectively nullified. 8 See HCR , 511 U. S., at 585 ( Ginsburg, J., dissenting). In my opinion, the Courts approach does precisely what it accuses the Board of doingnamely, reading one part of the statute to the exclusion of the other.
The Court acknowledges today that deference is appropriate when the Board determines both the degree of discretion required for supervisory status as well as the significance of limitations on the alleged supervisors discretion imposed by the employer. Thus, in a case like this, a court should not second-guess the Boards evaluation of the authority of the nurses as building supervisors, or of the significance of the employers definition of that authority.
However, in a tour de force supported by little more than ipse dixit , the Court concludes that no deference is due the Boards evaluation of the kind of judgment that professional employees exercise. Ante , at 7. Thus, under the Courts view, it is impermissible for the Board to attach a different weight to a nurses judgment that an employee should be reassigned or disciplined than to a nurses judgment that the employee should take a patients temperature, even if nurses routinely instruct others to take a patients temperature but do not ordinarily reassign or discipline employees. The Courts approach finds no support in the text of the statute, and is inconsistent with our case law. See, e.g. , Yeshiva , 444 U. S., at 690 (Only if an employees activities fall outside of the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management). 9
The Court further argues that the Board errs by not applying its limiting interpretation of the term independent judgment to all 12 functions identified by the statute as supervisory in nature. Ante , at 89. But of those 12, it is only responsibly to direct that is ambiguous and thus capable of swallowing the whole if not narrowly construed. The authority to promote or to discharge, to use only two examples, is specific and readily identifiable. In contrast, the authority responsibly to direct is far more vague. Thus, it is only logical for the term independent judgment to take on different contours depending on the nature of the supervisory function at issue and its comparative ambiguity.
Simply put, these are quintessential examples of terms that the expert agency should be allowed to interpret in the light of the policies animating the statute. See, e.g. , Curtin Matheson , 494 U. S., at 786; Chevron U. S. A., Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837, 843 (1984) . Because the Boards interpretation is fully consistent both with the statutory text and with the policy favoring collective bargaining by professional employees, this Court is obligated to uphold it.
Even if I shared the majoritys view that the term independent judgment should be given the same meaning when applied to each of the 12 supervisory functions and when applied to professional and nonprofessional employees, I would not simply affirm the judgment of the Court of Appeals. Cf. NLRB v. Bell Aerospace Co. , 416 U. S. 267, 289290 (1974) ; SEC v. Chenery Corp. , 318 U. S. 80, 8788 (1943) . The Courts rejection of the Boards interpretation of the term independent judgment does not justify a categorical affirmance of the Sixth Circuits decision, which rests in part on an erroneous allocation of the burden of proof. 10
In any case, I do not agree with the majoritys view. Given the Regional Directors findings that the RNs duties as building supervisors do not qualify them as supervisors within the meaning of 29 U. S. C. §152(11), and that they, for the most part, work independently and by themselves without any subordinates, it is absolutely clear that the nurses in question are covered by the NLRA. 11 The Courts willingness to treat them as supervisors even if they have no subordinates 12 is particularly ironic when compared to the Boards undisturbed decision to deny supervisory status to the other group of professionals employed by respondentnamely, the 20 rehabilitation counselors who supervise the work of 40 rehabilitation assistants.
Accordingly, while I join Part II of the Courts opinion, I respectfully dissent from its holding. I would reverse the judgment of the Court of Appeals.
1 The RNs did have the authority to file incident reports, but so [could] any other employee. App. to Pet. for Cert. 51a.
2 According to NLRB interpretations, the practice of a nurse supervising a nurses aide in administering patient care, for example, does not involve independent judgment. The NLRB classifies these activities as routine because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with management. App. to Pet. for Cert. 17a.
3 Oddly, the majority in this Court omits one elementnamely, in accordance with employer-specified standards. Ante, at 89. In so doing, it ignores a key nuance in the NLRBs position. That, however, is characteristic of the majoritys treatment of the NLRBs position, which is at once more fact specific and far less categorical than the majority makes it out to be.
4 The majority, however, pays scant heed to the adjudicative record when it asserts that the Boards interpretation would in essence eliminate the supervisory exception with respect to the responsibly to direct function. See ante, at 78.
5 [I]n many . . . contexts of labor policy, [t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review. Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978) (quoting NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957) ).
6 The majority suggests that the Boards interpretation of the term independent judgment is particularly problematic in light of this Courts decision in NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571 (1994) (HCR). But in HCR, this Court concluded that the terms independent judgment and responsibly to direct were ambiguous, while the term at issue in that case, in the interest of the employer, was not. Id., at 579.
7 As the American Nurses Association point out in its amicus brief, the scope of nursing practice routinely involves the exercise of judgment and the supervision of others. Brief for the American Nursing Association as Amicus Curiae 26.
8 Moreover, so broad a reading seems contrary to congressional intent in enacting the supervisory exception. Rather, the definition of supervisor was intended to apply only to those employees with genuine management prerogatives so that those employees excluded from the Acts coverage would be truly supervisory. S. Rep. No. 105, 80th Cong., 1st Sess., 19 (1947), 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, pp. 410, 425 (1948).
9 In fact, in Yeshiva, 444 U. S., at 690, this Court concluded that the NLRBs decisions adopting such an approach accurately capture[d] the intent of Congress.
10 Even under the Courts approach, since the NLRB might well prevail under the correct allocation of the burden of proof, the appropriate course of action in this case would be to return the case to the NLRB for further proceedings. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974) ; see also Electrical Workers v. NLRB, 366 U. S. 667 (1961) ; Ford Motor Co. v. NLRB, 305 U. S. 364 (1939) . HCR, on which the majority relies, see ante, at 15, is not to the contrary. In that case, unlike in this one, we found no error in the lower courts decision. Here, however, the lower court erred in its allocation of the burden of proof, a fact which would seem to make a remand to the NLRB in order to apply what the majority deems to be the correct legal principle particularly appropriate.
11 Nor do the RNs exercise any of the other supervisorial functions listed in §152(11). They play no role in assigning staff to shifts on a permanent basis or in setting the staff-to-resident ratio. App. 1819, 2324. As noted above, the RNs, whether functioning in their ordinary capacity or as building supervisors, do not have authority to hire, fire, reward, promote, or independently discipline employees, or to effectively recommend such action. Nor, for that matter, do they evaluate employees or take action that would affect their employment status.
12 Neither the licensed practical nurses nor the rehabilitation assistants report to the RNs. Id., at 30, 34, 45, 61.