*1 v. HEALTH LABOR RELATIONS BOARD NATIONAL RETIREMENT CORPORATION OF CARE &
AMERICA 22, 1994 May 23, 1994 Argued February No. 92-1964. Decided *2 Court, Rehnquist, J., which opinion delivered the Kennedy, J., JJ., filed Thomas, Ginsburg, J., O’Connor, Scalia, joined. and and C. JJ., Stevens, and Blackmun, Souter, in which opinion, a dissenting 584. joined, post, p. for Dreeben the cause
Michael R. petitioner. argued him briefs Solicitor General With on the were Days, Deputy Hunter, E. Wallace, M. Nicholas Jerry Solicitor General Arbab, Sher, Come, J. Linda John Emad Karatinos, Norton and Daniel Silverman. for E. the cause
Maureen argued respondent. Mahoney brief R. J. her on the were Cary Cooper, Margaret With Lockhart, and R. Bixler* Jeffrey Kennedy delivered the Court. opinion
Justice (Act) Labor Act affords The National Relations employees in collective and to rights organize engage bargaining Act free from interference. does grant employer filed for American *Briefs of curiae reversal were urging amici Organizations by and of Industrial Marsha Congress Federation of Labor Gold; for the S. Berzon and Laurence and American Nurses Association Woody Barbara J. and N. Peterson. by Sapin Briefs of curiae affirmance were filed for American urging amici Walsh, Peterson, A. Thomas by Health Care Association Andrew V. Vaccaro; Patrick L. for on Gerard Equality by the Council Labor Law Avakian; by C. Smetana Michael U. S. Home Corp. E. Care William H. III. DuRoss statu- however, so the employees, rights supervisory
those essential in determin- becomes definition of supervisor tory case, the Act. In this covered by are which employees ing Labor whether National narrow question we decide is (Board’s) nurse if a test for determining Relations statutory definition. with the consistent supervisor I inAct Labor Relations the National enacted early ch. 449. In the 372,49 Stat. 5,1935, Act July not exempt supervisory the Act did of its operation, years em- result, as a coverage; from its *3 and negoti- units bargaining could of part organize ployees this that complained with the Employers ate employer. but labor and management, an between imbalance produced a em- to out this refused carve in 1947 The Court coverage. the Act’s broad from exception ployee to us, excep- not for create “it for Congress, that is stated terms.” Act’s] at odds with plain [the tions or qualifications (1947). NLRB, Motor 485, 330 U. S. 490 Packard Car Co. v. that, did the statute just amending Later that year, Congress “ shall include . . . the term . . . ‘employee’ so that 137-138, cod- as a Stat. supervisor.” employed individual 152(3). § defined a supervisor at 29 U. ified S. C. as: interest
“[A]ny having authority, individual recall, hire, transfer, lay off, pro- suspend, employer, or em- mote, reward, discipline other assign, discharge, them, or to their or direct adjust ployees, responsibly if action, or to recommend such effectively grievances, such in with the exercise of connection foregoing nature, not of a routine clerical authority is merely but the use of requires judgment.” independent 152(11). § at 29 Stat. codified S. C. U. the res- stated,
As the Board has the statute requires in must olution of three and each be answered questions; super- a employee is to be deemed if an the affirmative authority engage employee have First, does the visor. of the exercise Second, does 12 listed activities? 1 of the independent judgment”? authority require “the use authority inter- employee “in the hold Third, does Nursing Home, 313 employer”? Nortkcrest est of the (1993). only the This case concerns L. N. R. B. proper upon inter- question, turns our decision third statutory phrase “in interest of the pretation employer.”' involving it has Board admits that nurses, the
In cases unique statutory phrase interpreted manner. Tr. of in a (Board: theory applied “[t]he Arg. has not Board Oral pro- categories phrased same terms to that’s fessionals”). “a direction of nurse’s The Board held judg- employees, in the exercise of less-skilled patients, treatment of is ment incidental employer.’” Pet. for ‘in the interest exercised <pert. reviewing position its on this issue in its 15. As stated Nursing supra, 491- Home, recent decision Northcrest special interpretation “in 492, the Board believes its involving employer” in cases nurses the interest of the necessary professional employees (including regis- because nurses) coverage under tered are not excluded from the Act. *4 “[tjhere 152(12). § Respondent that 29 C. counters See U. S. language simply basis the to no of statute conclude given nursing that aides in the home direction to interest of pursuant residents, to is not ‘in the inter- norms, ” employer.’ Respondent est of Brief for the case, In issued com- this the Board’s General Counsel plaint alleging respondent, operator the and of that owner Nursing Ohio, the in com- Urbana, Heartland Home had disciplining practices mitted unfair labor four licensed practical Nursing Heartland, nurses. At the Director of nursing department. responsibility overall the for There is Nursing, also an Assistant Director of 9 to 11 staff nurses
575 and the four licensed prac- nurses both (including registered 55 nurses’ aides. case), and 50 to this nurses involved tical duty on are the senior ranking The staff nurses on and at all times weekends— the week after 5 p.m. during re- nurses have of time. The staff 75% the approximately make work to daily ensure staffing; adequate sponsibility to ensure the aides’ work proper to monitor assignments; aides’ aides; resolve discipline to counsel and performance; evaluate aides’ performances; problems grievances; In of these varied activ- light to management. and to report the contended, that ities, among things, respondent so were supervisors, involved this case four nurses Law Administrative under the Act. The not protected (ALJ) that the nurses were concluding disagreed, Judge nurses’ The ALJ stated the supervisory supervisors. the aides directing] did ... “equate responsibly work in the interest the that “the nurses’ noting employer,” of the residents rather than of focus is on the well-being (1992) (internal 70 68, 306 N. L. B. quotation R. employer.” added). omitted) Board only marks The stated (emphasis found, and we agree, Respondent’s judge “[t]he Act.” within the meaning staff nurses are employees (1992). 306 N. L. R. B. n. 1 The for Sixth Circuit United States Court Appeals (1993). had 2d Appeals reversed. 987 F. the Board’s test for determining decided earlier cases that status nurses was inconsistent with NLRB, 2d Beverly Corp. statute. See v. F. California Light Nursing NLRB Beacon Christian v. (1992); Home, (1987). In Beverly, 2d example, F. had to sub- given court stated that “the notion that direction nursing ordinate to ensure that personnel employer’s receive care’ fails home customers somehow to qual- ‘quality makes as direction ‘in the interest of the ify given employer’ little 2d, sense to us.” 970 F. at 1552. very Addressing instant the court held followed Beverly case, again *5 576 interpretation
Board’s inconsistent with the statute. 987 F. up 2d, at 1260. The court further stated “it is to Con- gress exception to carve out an for the health field, care in- cluding nurses, should not wish for such nurses to supervisors.” be considered Id., at 1261. The court “re- minded] the Board that it is the courts, and not Board, responsibility interpreting who bear the final the law.” concluding Id., at 1260. After that the Board’s test in- was consistent with statute, the court found that the four practical licensed supervi- nurses involved in this case were Id., sors. at 1260-1261. granted (1993),
We
certiorari, 510 U.
810
S.
to resolve the
Appeals
conflict in
validity
the Courts of
over the
g., Waverly-Cedar
Board’s
See,
rule.
e.
Falls Health Care
(CA8 1991);
Center, Inc. NLRB,
v.
A interpretation, The that a nurse’s ac- tivity is not employer exercised in the interest of the if it patients, incidental to the treatment of ap- is similar to an proach rejected, took, Board and we in NLRB v. Yeshiva (1980). Univ., 444 U. S. There, we had to determine faculty whether members “managerial at Yeshiva were em- ployees.” Managerial employees are those who “formulate management policies by effectuate expressing and mak- ing operative the employer.” decisions of their NLRB v. Aerospace (1974)(internal Bell Co.,416 quota- S.U. omitted). tion marks supervisory employees, Like manage- *6 Id., at from the Act’s excluded coverage. are rial (“so Act that no outside the specific exclusionary clearly Yeshiva in The Board was necessary”). thought provision con- not members were managerial, that faculty argued in the was “exercised faculty’s that tending faculty the interest of the rather than in university.” interest own To its at 685. S., position, placed 444 U. support on the members’ much reliance faculty independent profes- in the curriculum and discharging role sional designing to the We found students. obligations their professional Board’s reasoning unpersuasive: member
“In that a exercising independ- faculty arguing in his own interest acts ent primarily judgment em- the interest his therefore does represent inter- the Board assumes professional ployer, are interests of the institution and the ests of the faculty member with which a entities distinct, faculty separable be The Court not simultaneously aligned. could distinction, and for this no found justification Appeals fact, none. In faculty’s we perceive a university interests —as governance applied those of from like be separated Yeshiva —cannot institution. Id., is education.” of a The ‘business’ university
“... at 688. no here than it did better fares reasoning Yeshiva, di-
Yeshiva. a false Board created As in acts taken case, a between this dichotomy chotomy —in taken in interest care and acts connection patient Patient makes no sense. That dichotomy of the employer. home, it of a follows is the business nursing care home who are to the needs the nursing patients, attending customers, is employer. the employer’s interest supra, Beverly no at 1553. We thus see California, See au- blanket assertion that basis the Board’s patient thority care is somehow in connection with exercised employer. in the interest of gave impetus supported by the case that conclusion Our statutory provision In now before us. Packard to the phrase “in the interest of an em- Motor, we considered “employer” origi- ployer” in the definition contained “[e]very employee, from the 1935 Act. We stated nal *7 required very employment business, is in the master’s fact of rejected the S., in interest.” 330 U. 488. We to act his argument case, like the Board in this who, of the dissenters only phrase proposition covered “those the that the advanced formulating executing [and] management... who acted for (Douglas, dissenting); policies.” Id., J., its labor at 496 cf. (filed 1993) (nurses July Reply are Brief for Petitioner performing profes- supervisors when, “in addition to their they responsibilities, possess also the au- sional duties and thority job pay employees working to affect the status or them”). ordinary meaning under Consistent with phrase, the in Packard Motor determined that acts scope employment or on the within the authorized busi- employer employer.” “in interest ness of the are of the Congress S., 330 U. at 488-489. There is no indication that meaning phrase intended different when it included the statutory supervisor in the definition of later in To be sure, Motor, altered result of Packard but it change meaning phrase did not of the “in the interest of employer” doing when we so. And of course have re- jected argument altering that a statute the result by judicial necessarily changes reached decision the mean- ing language interpreted of in that decision. See Public Employees System Betts, Retirement Ohio v. 492 U. S. (1989). 158, 168 only
Not is the Yeshiva, Board’s test inconsistent with ordinary meaning phrase Motor, Packard and the of the “in employer,” portions the interest of the it also renders §2(11) statutory §2(11), meaningless. definition Under uses independ- of employment in the course who an employee activities, includ- 12 listed in 1 of the to engage ent judgment is a supervisor. employees, of other direction ing responsible course who however, a nurse test, Under in re- engage judgment independent uses of employment not a supervisor. of other direction sponsible uses inde- of employment the course who in a nurse Only related of the activities one to engage judgment pendent a su- can qualify status pay employee’s job to another for Peti- Brief See Reply the Board’s test. under pervisor (nurses when 1993) (filed are supervisors July tioner under working of employees status or pay affect “job they how- them”). no justification, plausible The Board provides §2(11) direction portion ever, reading responsible none. we can cases, perceive in nurse of the statute out that phrases test by arguing defends its The Board and “responsibly 2(11) judgment” § such as “independent ample needs to be given so direct” are ambiguous, of employees. different categories them to room to apply *8 in this particular it is irrelevant true, but is no doubt That is not the under- of those phrases interpretation case because Board instead placed The of the Board’s test. pinning interest of the employer” “in the reliance on the exclusive §2(11). phrase, respect particular With language It the Board’s position. supporting find no ambiguity we in one moreover, that ambiguity without go saying, should the Board license to distort not of a statute does give portion Yet that is what of the statute. provisions sanction in this case. seeks us to of the the “in the interest employer”
The interpretation the ordinary and by mandated our by precedents language meaning- not render the phrase of the does meaning phrase ensures, definition. statutory language less are who adjust grievances that union stewards example, Act’s of the and deprived considered supervisory employees the Board’s cannot But the support language protections. patients supervision not in argument care of of the patient, employer. The welfare of the the interest employer object and concern is no less the all, after dichotomy statutory And the it is of the nurses. than justified in the health care field is no more Board has created where would be in other business than it goods necessary production or to the incident duties are provision of services. B the stat- Board’s test is inconsistent both Because the precedents, utory language Board seeks and this Court’s nonstatutory argu- ground, putting forth a series to shift ignore persuades that we can ments. None of them us statutory language and our case law. we should defer to its test
The Board first contends that according granting organizational because, Board, to the rights supervisory authority pa- concerns to nurses whose conflicting loyalties tient care does not threaten the that the supervisor exception designed Pe- was to avoid. Brief for rejected argument titioner same in Yeshiva 25. We danger where the Board contended that there was “no loyalty managerial divided and no need for the exclusion” for faculty S., Yeshiva members. U. at 684. And we reject reasoning again must here. The Act is to be en- according by creating legal forced to its terms, own cate- gories meaning, inconsistent with its as the Board has done proceeds through adju- in nurse cases. Whether the Board rulemaking, dication the statute must control the Board’s way decision, not the other around. See Florida Power & Light (1974); Workers, Co.v. Electrical U. S. cf. *9 supra, (rejecting policy Motor, Packard at 493 resort to legislative history interpreting meaning phrase in “in employer”). assumption, the interest of the Even on the permits po- moreover, that the statute consideration of the loyalties unique interpretation tential for divided so that a permitted field, health care we do not share the loyalty no of divided that there is danger confidence to poli- owners want may implement home Nursing here. care best receive the possible to ensure that patients cies working from adverse reaction employees despite potential so, nursing If the statute gives the nurses’ direction. under on the undivided loyalty to insist ability home owners there that the Board’s impression its nurses notwithstanding of divided loyalty. is no danger criterion also argues statutory “[t]he
The Board . must ‘in the interest of the . . employer’ authority having it intention Congress’s be read so overrides broadly Act to employ- accord the professional to protections 152(12). § The 26; Brief for Petitioner see U. S. C. ees.” from other employees Act does not distinguish professional definition of supervisor for employees purposes 2(11). individual” “any § exclusion supervisor applies non- “any statutory requirements, meeting the Board relied on the addition, In employee.” Yeshiva, The Board ar- but to no avail. same argument be in a that “the exclusion cannot managerial applied gued because fashion to straightforward professional employees those often to be appear exercising managerial are routine du- job when authority they merely performing we at 683-684. S., Holding contrary, ties.” U. distinction said that the Board could not a statutory support interest between the interest and the university’s managerial a dif- exercised on its There is no reason for behalf. being Yeshiva, sure, result To be ferent here. recognized Act’s exclusion of there be “some tension between the may its inclusion of managerial employees and] [supervisory but we find no “suggesting professionals,” that tension can be resolved” lan- statutory by distorting Id., manner the Board. at 686. guage proposed by conclusion, as a reason for us to defer to its Finally, Board cites of the 1974 amendments legislative history other sections of the Act. Those amendments did not alter
582 yet field, supervisory in the health care status
the test
Report
points
ex-
in a Committee
to a statement
ap-
approval
apparent
then-current
pressing
of the Board’s
Rep.
employee
plication
test
nurses. S.
of its
(1974);
supra,
p.
at
As
Yeshiva,
see
n. 30.
93-766, 6
No.
clear that the Board
fact
it is far from
matter,
an initial
Compare Avon
1974.
test for nurses before
had a consistent
(1972), with
Inc.,
R. B. 702
Center,
200 N. L.
Convalescent
(1970).
Hospital
Inc., 183N. L.
950
Modesto,
R. B.
Doctors'
of
in the 1974
event, the isolated statement
Committee
In
represent
interpretation
Report
an
of
does not
authoritative
employer,”
phrase
interest of
which was en-
“in the
the
the
by Congress
“[I]t
of the courts
in 1947.
is
function
acted
Legislature,
House
not the
much less a Committee of one
Legislature,
say
enacted
means.”
of the
what an
statute
(1988).
Underwood,
Indeed, in
Pierce v.
487 U.
S.
(1991),
Hospital
NLRB,
American
Assn. v.
state N. at 185-188.
Ill (or professional’s An examination of the duties in this case nurses) nonprofessional duties of the four to determine performed whether the 12 more of listed activities is employee supervisor a manner that is, course, makes part adjudicative proper routine function. no doubt could lead nurses, In cases involving inquiry *11 to conclude that status in some cases the Board supervisory The Board been demonstrated. sought has not here, basis however. It has cho- its decision on that sustain the an of on industrywide interpretation sen instead rely that contravenes interest of the “in the employer” phrase and has no relation to the of this Court ordinary precedents of that language. meaning §2(11) industries, in other the sure, be
To applying a distinction be- reaches results on occasion reflecting Board and au- from knowledge professional tween authority arising front-line management prerogatives. thority encompassing all of however, that in almost It emphasize, important nurses) de- the Board’s (unlike in cases involving those cases of the statutory result from did not manipulation cisions a instead from the but “in the interest of employer,” phrase other had not met the that the employee question finding Act, the such under for status supervisory requirements the listed exercise one of that the employee the requirement supra, at 573 manner. See (listing in a nonroutine activities status). That ex- may for supervisory other requirements in its submissions to this did not cite why plain health care field approving a case outside single of the “in the interest employer” of the interpretation Board sometimes finds That the in nurse cases. Board uses when be a apply- not to supervisor a employee professional §2(11) of can- definition other elements statutory ing can that the Board rely the conclusion shoehorned into not be “in the interest phrase on its strained interpretation the Board’s If we in all nurse cases. accepted the employer” would case, moreover, nothing prevent in this position of “in the interest Board from this interpretation applying to all employees. of the employer” casts no doubt on Board decision We note further that our §2(11) than the other or court decisions interpreting parts Because interest of the “in the employer.” phrase specific interpretation “in interest of the em- the Board’s part our deci- cases, to nurse ployer” is the most confined for Any' that context. almost no effect outside will have sion meaning of this for parade decision of horribles about misplaced; quite indeed, is thus in other industries argument. not make that Board does determining In the Board’s test sum, prec- statute and our is inconsistent status nurses petition uphold its The Board did not this Court edents. theory. Brief for under See order this case question presented Respondent case n. 25. If the supervisors proper under the nurses were whether these analysis given lengthy exposition we have test, would *12 indicated, But as have in the record. we facts by relying par- its on the Board made and defended decision applied that the it has to nurses. conclusion ticular test Our Appeals was to find the Board’s test incon- correct the statute therefore suffices to resolve case. sistent with judgment Appeals The Court of
Affirmed. Ginsburg, whom Blackmun, Justice with Justice Jus- Stevens, tice and Justice Souter join, dissenting. § seq., The Labor 29 Act, National Relations U. S. C. 151 et guarantees organizational, representational, bargaining and rights “employees,” expressly “supervisors” to but excludes 2(11) §§ 157,152(3). protected from that class. See Section “supervisor” by, first, Act defines term enumerat- ing (including, hiring, example, actions firing, disciplining, assigning, directing) “responsibly” and “any prescribing and, further, “au- individual” who has thority, employer,” perform in the interest of the or “effec- tively supervisor, to recommend” of these is a actions provided authority requires that the exercise of such “inde- pendent judgment” “merely rather than routine clerical” 152(11). § action. the Act ex-
In contrast to its exclusion supervisors, within its employees” protec- includes pressly “professional 2(12) defines as one “professional employee” tions.1 Section work is intellectual and varied whose “predominantly consistent exercise of discretion character,” involves “the a result and its judgment performance,” produces be standardized in relation to a given “cannot period “in a time,” and field of science or learn- requires knowledge course of customarily acquired by prolonged specialized ing instruction and in an institution of intellectual study higher 152(12)(a).2 § or a S.U. C. learning hospital.” and categories necessarily “supervisor” “professional” within the Individuals zone—those who overlap. overlap are both excluded from “professional” “supervisor” —are reason, the Act’s For that accorded the coverage. scope Act’s term determines the extent to which “supervisor” pro- fessionals If are covered. the term is con- “supervisor” strued reach to use broadly, everyone any authority di- ... “independent judgment” assign “responsibly rect” the work of other then most employees, professionals some would be have for most supervisors, assign If the term others’ work. is under- “supervisor” direct stood that however, inclusion of broadly, Congress’ profes- sionals within the Act’s would be protections effectively nullified.
The excluded from the Act’s separation “supervisors,” from Act, sheltered is a task compass, “professionals,” by committed to the National Labor Relations Board (NLRB Board) or in the first instance. The Board’s attempt
1 152(12) 159(b) § § (defining “professional employee”); See (limiting Na tional place professional Labor Board’s to nonpro Relations discretion unit). fessional bargaining in the same 2The “professional employee” definition of persons further who includes have completed required study “performing course of are related work supervision professional under the person” finally of a in order to 152(12)(b). qualify § professional. as a charge carry matter under examination is the that out
this case. employ- controversy involves the before the Court
The practical at Heartland nurses certain licensed status of ment registered nurses, Unlike Nursing Urbana, Ohio. Home practical are nurses employees, professional licensed are who ap- however, employees. Board, The “technical” considered practical status licensed plies test of the same case, in this registered where, as nurses it does to nurses registered duties as practical same nurses have the (1992)(duties of staff 68, 69, n. 5 R. B. 306 N. L. nurses. See virtually showed, “were Heartland, the evidence nurses at nurses] practical [licensed nurses were same whether nurses]”); Inc., 295 [registered Home, Masonic Ohio or (1989); Res- cf. v. n. NLRB 390, 394-395, and L. R. B. N. 1983)(licensed (CA7 practical 2d Care, Inc., 1461,1466 705 F. full-fledged professionals, at least if “are, nurses sub-professionals”). sought adjudication,
Through case-by-case exercising distinguish level of control individuals highly management, truly places from them in the ranks who employees, technical, whether skilled super- incidentally work, a limited perform, skilled to their approach visory persuaded that the role. I am I therefore consistent the Act. would rational by uphold determination, administrative affirmed protected practical Board, Heartland’s nurses are employees.
I n originally Labor Rela- 1935, As enacted the National (Act), expressly § seq., tions Act 151 et did U. S. C. supervisors “employees” exclude from the class of entitled 2(3), §§ protections. the Act’s See Stat. (1945), Co.,
Board decided in Packard 61 N. L. B. Motor R. express supervisors must exclusion, of an absence agreed, coverage. held This be within Act’s
587 stating language Act no inter- of the allowed NLRB, pretation. Packard Motor Car Co. v. 330 S. 485 U. (1947). responded by excluding supervisors
Labor-Management Act, Relations 1947.3 Senate Com- Senate’s definition of “su- Report noted that mittee assuring a pervisor”4 with view had been framed coverage act employees from the of the “the . . . excluded Cong., truly supervisory.” Rep. [would] S. No. 80th be (hereinafter (1947) Report), Legislative Senate Sess., 1st 19 Rep. Cong., 1st History 510, 80th see also H. Conf. No. 425; (1947), Legislative History (“supervisor” 539 Sess., 35 regarded as generally foremen limited “to individuals rank”). Report higher persons As the Senate of like or explains:
“[T]he fact that not been unmindful committee has minor duties have certain [within may justify problems their inclusion which distinguished Act]. protections It has therefore set-up men, leadmen, and other bosses, straw between supervisory employees, hand, on one minor genuine management pre- supervisor such vested with discipline, make rogatives right fire, hire or or as the 2(11) hav “supervisor” “any individual Act Section defines transfer, hire, employer, suspend, the interest of the ing authority, reward, off, recall, discipline other em assign, or lay discharge, promote, them, or grievances, or to their adjust ployees, responsibly direct action, foregoing if in connection with the effectively such to recommend nature, or clerical merely not of a routine the exercise of such 152(11). § U. S. judgment.” C. but the use of requires independent 2(3) . . shall 'employee’ term . part, “[t]he Section provides, 152(3). § supervisor.” as a include ... individual employed differently; “supervisor” the term The House and Senate bills defined H. Conf. the Senate version. See the Conference Committee adopted Sess., (1947), NLRB, Legis 510,80th reprinted No. 1st Rep. Cong., (1948) Act, p. 539 Management lative of the Labor Relations History (hereinafter Legislative History). *15 to such action.” respect with recommendations effective History at Legislative Report, Senate then, was §2(ll)’s of “supervisor,” definition of The purpose line of management,” “the front to scope limit the term’s “undivided loyalty,” management owed who the “foremen” from work- distinguished as id., History 5, Legislative duties.” ers with “minor from excluded supervisors that Congress time At the very em of “professional a definition it added Act’s protection, 152(12).5 of that The inclusion § 29 U. S. C. See ployees.” 9(b) of the Act §to an amendment definition, together and nonprofessionals of professionals limiting placement confirm that 1, supra, see n. unit, same bargaining largely of supervisors intend its exclusion did employees. of coverage professional to eliminate supervise professionals because most Nevertheless, is in tension inclusion of extent, professionals the Act’s some a supervi- The Act defines of supervisors. with its exclusion “independent to use with authority sor as individual” “any or responsibly employees, ... ... other assign “to judgment” employee’ means— term ‘professional “The (i) and “(a) intellectual predominantly any employee engaged work mechanical, manual, mental, or opposed to routine varied in as character judg- and work; (ii) involving exercise discretion physical the consistent (iii) output produced performance; of such a character ment in its given in relation to a standardized accomplished result cannot be or the (iv) type in a field of advanced time; knowledge of an period requiring special- customarily acquired by prolonged a course learning science or learning higher study in institution of and an ized intellectual instruction from education or distinguished general from a academic hospital, or a mental, of routine training performance apprenticeship or from an manual, physical processes; or “(b) (i) specialized in- completed the courses employee, who (iv) (a), paragraph study in clause tellectual instruction described (ii) supervision professional of a performing related work under employee as defined person to himself to qualify become (a).” paragraph to direct them.” Professionals, by definition, exercise inde- § see 29 pendent U. S. C. judgment, 152(12), and most profes- sionals have tasks to assign other employees “responsibly direct” their work. See NLRB v. Res- Care, Inc., (CA7 1983) 2d 1461, J.) F. (Posner, (“[M]ost have professionals some supervisory responsibilities in the sense of another’s directing work —the his sec- lawyer *16 the teacher his retary, teacher’s aide, the doctor his nurses, nurse’s, on.”). nurse her registered aide, and so If pos- of session such and the authority exercise of independent judgment were sufficient to an classify as a individual statu- tory then few “supervisor,” professionals would receive the Act’s protections, contrary Congress’ express intention to include categorically “professional employees.”
HH H-< A The NLRB has recognized endeavored to cope the tension between the Act’s exclusion of supervisors and its inclusion of professional See, e. Northcrest g., employees. Home, Nursing (1993). 313 N. L. R. B. 491 To harmonize the two the Board has prescriptions, focused on the properly policies that motivated exclude Ac- supervisors. for the counting exclusion of supervisors, the Act’s drafters emphasized that must have the employers “undivided loy- of alty” those persons, as “traditionally of regarded part on whom management,” they have bestowed “such genuine management prerogatives right hire fire, or disci- or pline, make effective recommendations with respect such action.” See Senate at 3-4, Report, Legislative His- tory 409-410 Northcrest (quoted Home, Nursing N. L. R. B., at 491. the NLRB Accordingly, classifies as su- pervisors individuals who use independent judgment exercise of managerial disciplinary over other authority Id., at 493-494. But because employees. em- professional ployees often are not in management’s “front line,” the “undi- urgent for this class less is somewhat loyalty” concern
vided that the determined therefore has Board of workers. assign direct other judgment “to exercise high quality and effi- providing employees in the interest supervisory status.” by itself, “confer not, does cient service” Id., at 494. inquiry: exposition of its essayed this
The NLRB supervisory status, determining the existence “In the individual whether first determine must Board authority indicia of. of the possesses authority entails the exercise so, if whether and, If the ‘merely routine.’ judgment’ or ‘independent supervisory author- independently exercises individual if that then determine must ity, Board ” employer.’ Id., ‘in the interest is exercised reasoned Board has field, the applied to the health-care As employer,” interest “in formulation to fit the *17 key mana- reflect must of others superintendence nurse’s to the attributable simply control authority, not gerial and incidental status,” direction technical “professional or nurse’s Cf. Children’s 493, Id., patient care.” “sound (CA7 130, 134 2d NLRB, 887 F. v. Center, Inc. Habilitation J.) “interest 1989) within the (Posner, (authority fit not does accordance in is “exercised category if it employer” of ac- e., in norms,” i. business than professional rather with . . rather than . “professional standards cordance objectives”). company’sprofit-maximizing
B rudderless analysis” is not a care “patient The NLRB’s approach the of application an nurses, but for rule Board has contexts. pursued other Board arising authority from between employed distinction authority en- and knowledge, hand, on one professional
591 front-line on the management compassing prerogatives, other, to resolve cases status concerning supervisory of, doctors,6 faculty members,7 example, pharmacists,8 librarians,9 workers,10 social television station lawyers,11
6 (1990) (“routine Door, 602, 601, N. L. B. See The 297 R. n. 7 direction employees higher experience based on a level of skill or is not evidence status”). supervisory 7 Business, (1989) College 318,320 See Detroit 296 N. L. R. B. (profes “ employees ‘[frequently require ancillary nonpro sional services of employees carry professional, fessional in order to out their supervi sory, responsibilities,’” Congress’ but “it was not intention to exclude ‘by application them from the Act the rote of the statute without purpose reference place to its or the individual’s on the labor-management ”), Univ., (1975). spectrum’ quoting 1148, New York 221 N. L. R. B. 1166 8 Inc., (1979) Drugs, 859, See Sav-On 243 N. (“pharmacy L. R. B. 862 managers judgment” do exercise assigning directing discretion and and clerks, but clearly “such exercise ... falls within profes the ambit of their responsibilities, sional and does not constitute the exercise of authority in the Employer”). interest 9 Marymount College (1986) See Virginia, N. L. R. B. (rejecting catalog statutory classification of librarian as a supervisor, al though librarian’s over technician’s work “encouraging included productivity, reviewing typographical errors, work for providing an swers questions to the technician’s catalog profes based on the librarian’s knowledge”). sional Center, (1982) See Youth 1330,1335, Guidance 263 N. L. R. B. n. (“senior supervising “supervising social workers” and social workers” statutory supervisors; carefiilly consistently “[t]he Board has avoided applying statutory ‘supervisor’ definition of professionals give who direction to the exercise of judgment which is incidental professional’s to the patients treatment of and thus is not the supervisory authority exercise of employer”). interest of the 11 Neighborhood Legal Services, Inc., See 236 N. L. R. B. (1978): “[T]o the [attorneys extent that the question] train, assign, or direct legal work of paralegals assistants and they profes for whom are *18 sionally responsible, we do not find the authority exercise of such to confer 2(11) status within meaning Act, of Section of the but rather to be an professional incident of responsibilities their attorneys as thereby as officers the court.” The Board continued: are “[W]e careful to applying avoid of‘supervisor’ definition professionals who direct employees professional the exercise of judgment, their engi- noted, has architects as this Court and,
directors,12 690, n. 30 Univ., 444 U. S. v. Yeshiva NLRB neers. See cases). (1980) approval Indicating of the NLRB’s (citing professionals, coverage approach the Act’s general in Yeshiva: stated recognized whose deci- Board has “The sionmaking discharge profes- routine to the is limited they projects been as- which have duties sional coverage even if union signed from be excluded cannot loyalty. may arguably membership involve some divided scope employee’s Only fall outside the activities if an similarly pro- by routinely performed situated the duties management. aligned with be found fessionals will he accurately capture the intent these decisions We think omitted). (footnote Id., at 690 . . .” . Notably, determining case, whether, in a concrete meaning supervisors Act, within the nurses are “leadper- upon particularly its decisions in Board has drawn employ- “Leadpersons” include skilled son” controversies. statutory “professionals,” qualify like but, as ees who do authority assign employees, or di- some have leadperson cases, as in cases involv- rect other workers. In distinguished ing professionals, between NLRB superior experience, authority that derives from skill or management from and tends to that “flows identify management.” or associate a worker with South- practice profession, direction is incidental to the of their and thus which supervisory authority is not the exercise of in the interest of the Em- Id., ployer.” n. 9. Broadcasters-KTLA, 760, 762, n. 4 See Golden-West 216 N. L. R. B. (1974): employee special expertise training or who directs or “[A]n proper performance instructs another of his work for which professionally responsible thereby supervi former is rendered expert employee sor. ... This is so even when the more senior or more exer here, independent where, cises some discretion such discretion is based upon special competence upon specific employer policies.” articulated *19 787, 791 L. R. B. Inc., 115 Works, N. & Print Bleacher ern (CA4 1958); cf. Northcrest (1956), 235,239 F. 2d enforced, 257 (drawing the anal- Nursing B., at 494-495 Home, L. R. 313 N. hospitals charge and leadpersons nurses ogy and between homes). man- Differentiating front-line role of the nursing placed some leadperson, agers that of from supervi- authority, in the of their of the level because nurses, pro- ranking ease, in a as in this category, others, while sor (or technical), supervisor, See cases class. but fessional n. 36. id., at cited
Ill decisions, the Following pattern in NLRB revealed (AU), by Board, de- Judge affirmed Law Administrative practical in this case nurses four licensed that the termined orga- closely examined supervisors. The ALJ were nursing and operation at Heartland care and nization “closely to the kind akin aides the nurses’ direction found persons by bosses, . . . directing straw leadmen or done ‘employees.’” 306 Congress plainly to be considered pointed finding, Backing up the ALJ this B., at 70. L. R. N. kinds) (of “g[a]ve although certain orders nurses that, out follow[ed] id., at orders,” those and aides aides, to the only exercis- “spen[t] their time fraction of a small nurses Essentially, la- authority,” nurses ing id., [were] met,” the residents needs of ensure that the “to bored changes they “check[ed] in the health of end, and receive[d] status administer[ed] medicine,.. . residents, [such] g[a]ve they re- reports relieve[d], nurses from the duty coming reliefs,” nurses’ ports on aides dressing feeding “bathing, resi- pinch-hit for aides physi- telephone incoming calls from “handle[d] dents,” want[ed] informa- who of residents and from relatives cians Ibid. condition.” about resident’s tion up setting aide- “when noted, too, The ALJ patterns”; assignments,” old “followed the nurses resident among routinely decide let the aides indeed, “the nurses Id., which residents.” to cover aide was which themselves nursing were director of and the administrator at 70. *20 fact, them at their homes “always called nurses call” and on ar[o]se.” Id., at 72. matters non-routine “when gained reported, hearing, “the Throughout he the ALJ that the believed impression Heartland’s administrator that anything hands-on care of other than views about nurses’ considering.” “[T]he Ibid. not worth were the residents administrator,” concluded, the ALJ of Heartland’s actions [Heart- unmistakably that “to repeatedly demonstrated and just management, nurses were hired land’s] Heartland’s rejecting basis for no tenable Ibid. I see hands.” jobs ruling the nurses’ did entail that ultimate ALJ’s genuine, of the kind that would status front-line protection. from the Act’s exclude them
IV A §2(11) limiting ultimately phrase classification The recognizes, “supervisor” “in the interest of is, as meaning give phrase employer.” as a discrete To potent in it, Board has construed diverse limitation, the and obligation employees convey all more than contexts, to employer’s interests, business indeed have to further the assign employees and direct other more than the e.g., pursuant See, standards. to relevant (1993) Nursing 491 Home, Northcrest 313 N. L. R. B. (nurses); Center, 1330, 1335, 263 B. Youth Guidance N. L. R. (1982) (social workers); Drugs, Inc., 23 243 and n. Sav-On (1979) Neighborhood (pharmacists); Legal 859,862 N. L. R. B. (1978) Services, Inc., 1269, 1273, B. and 9 N. L. R. n. (attorneys).13 defining management It is a task of to formu- Board, demonstrate, as the in text no unique decisions cited takes supra, approach cited, involving in cases See also cases nurses. at 591- ante, 6-7, 9, Nor, contrary report, nn. to the Court’s see interpretation did counsel for the NLRB deviant phrase, admit to of the correspondingly, for the shop; labor policies and execute late policy management superintending with charged the persons who, “supervisors” labor are the regarding employer.” the interest “in act view, serves of course Maintaining professional standards blind hardly the NLRB an enterprise, interest Home, Nursing Northcrest See obvious point. (interest employer B., at R. N. L. meth- concerning decisions nurse on charge diverge
likely needs). But “the interest attending patients’ ods on of employees, against well tug may the employer” fixing discharging, firing, “hiring, matters such author- persons the employer,” “in interest pay”; *21 ranked are properly that sort” of “things ity regarding “supervisor.”14 is “[i]t asked When whether cases. nurses’ employer,” in of “interest the employer” when of the “in the act interest who do not nurses”
uniquely “No, it is not customer,” replied, counsel of the attending “the needs to continued, when counsel Arg. 52. While of Tr. Oral uniquely nurses.” phrased theory a that’s applied has not Board say that “[t]he to pressed, ibid., ap- counsel professionals,” categories of other to in same terms the care” “patient precisely particularized, referring to the been pears to have is draw Board has done “What the added: inquiry. Counsel of version the supervisory minor do and what nurses analogy what an between... fully consistent case is rule in this [T]he . . . employees do. Id., applied.” at 53. it rule that has traditional the Repre of (1946), containing the statement Cong. Rec. 5930 See 92 part of the §2(11), included as present aon forerunner sentative Case in 1946. Truman by President Congress, but vetoed bill, passed by Case to the nearly identical provision, the bill’s stated of Representative Case “ key phrase is §2(11): employer’ the of the ‘In the interest present —that employees does is supervisory on the section keep All that to mind.... primary person a employer,’ [a] say that if ‘in the interest to things of fixing pay, and discharging, and hiring, firing, responsibility in side of the he not sit on the table shall sort, bargaining at the then that serve No can man employer.... side of shall sit on the employee, but contract, lawyer repre a does you If are negotiating two masters. here.” is that is involved That all sent both clients. interest “in the that deny phrase does not
The Court limit, not to expand, intended was employer” of the the Court reading gives Yet the “supervisor.”15 category of workers example one only to provide allows it the phrase ensures ... “The language description: not fit the would who are not consid- who grievances adjust union stewards that Act’s of the protec- and deprived ered supervisory Ante, 2(ll)’s “in the in- expression, at 579. Section tions.” all 12 of the listed modifies however, of the terest employer,” of grievances. activities, adjustment not just stew- “union gives, example the single Tellingly, distinction very on the rests who adjust grievances,” ards all quarters has endeavored apply interests peculiar one “management” between workplace: interests conflicting and the sometimes the employer, employees.16 maintain, however, Congress meant to embrace that does The Court (1947), NLRB, U. v. 330 S. Motor Car Co. statement Packard our employment in the master’s very fact of “[e]very employee, from the 488; ante, Id., at interest.” see business, required to act in his §2(11), Court’s enacting to overturn the purpose, in was Congress’
But likely was Motor Car. Thus it is more holding in Packard interest dissenting “acting by Douglas’ view taken Justice only management “not in formu employees who act for employer” fits S., policies.” 330 U. at 496. More executing its labor lating but also employer,” “in over, phrase, the interest Congress had included Car, predecessor in a bill to the Labor- year before Packard Motor *22 “supervisor” the term almost Management Relations Act that defined 14, Finally, acknowledged in identically. supra. n. the Pack See Court employer" may also be phrase “interest of ard Motor Car that the the improv narrowly, employees’ in to interests in read more contradistinction S., U. at ing compensation working their and conditions. 330 490. words, Car, then, support does not the that the Packard Motor conclusion plain meaning with employer,” “interest of the have a inconsistent the interpretation given supervisor in cases. the has them Board 16 responsible suggests The Court that the Board has the “rea[d] direc §2(11) Ante, at portion tion of the statute in nurse cases.” out 2(ll)’s supervi § (referring “responsibly list of to the words to direct” in activities). sory inserted those words The the amendment that author man- to bind to supervisor exclusion adopted
Congress manage- genuine . . . with “vested persons agement those History Legislative Report, at prerogatives,” Senate ment specifically duty to act authority and e., those with 410, i which as to matters employer” on interest “in the Board may The divide. interests management labor in distin- believe, gave I it, task faithful been managerial interest —its employer’s hallmark guishing the labor-management relations—from regarding interest by enterprise, its shared general interest high-quality service. providing employees, in technical B heavily relies approach, Court rejecting Board’s In (1980). heavy U. S. Univ., 444 v. Yeshiva on NLRB puzzling, the Court weight placed on Yeshiva differentiat- decisions approval the noted case (or captains”) from “project leaders ing professional team “supervi- “employees,” are leaders “supervisors.” Such [their] “despite agreed, and the held, sors,” direct responsibility and planning substantial “In the 690, n. Id., at members.” team and evaluate ob- Yeshiva specifically, the Court context,” health-care the decisions whether case in each asks Board “the served, to’ supervisory ‘incidental are managerial or alleged be approach, patients.” That treatment to’ ‘in addition intent “accurately capture[d] the Yeshiva, said the Court Id., at 690. Congress.” to direct” authority “responsibly having however, persons explained, rank duties” who managerial with “essential persons employees are men, minor and other set-up men, bosses, lead grade of ‘straw “above Cong. report.” the [Senate] enumerated employees,’ Flanders). As (remarks of Sen. History 1303 (1947), Legislative Rec. bosses analogy straw this same above, Board has used explained supervisors. are nurses particular whether determine leadpersons to supra, 592-693. See *23 expresses today doubt whether “the stat- also
The Court loyal- potential permits for divided consideration of the ute po- (implying that consideration of this Ante, at 580 ties.” [of statute] interpretation “unique entail a tential would field”). points again, But Yeshiva in the health care ... acknowledged way. opinion in Yeshiva The Court’s “grow[s] supervisors out of the ... that the Act’s exclusion employer [t]hat is entitled to the undivided concern . . an . loyalty representatives.” S., at 682. The its U. University faculty members that the Yeshiva Court decided precisely protection, to the Act’s because were not entitled employer presented “representative” their role as faculty, grave danger loyalties. of divided The Yeshiva implementing pivotal defining was stated, managerial “authority employer’s its in academic interests; product [wa]s “determine^]... absolute,” matters and it produced, upon it will offered, to be the terms which be plausi- Id., the customers who will be at 686. No served.” equation self-governing Ye- ble can be made between the faculty, other, shiva one on the hand, on the licensed practical case, nurses involved in this with their limited au- thority assign pursu- and direct work of nurses’ aides, ant to standards.
V opinion implications beyond The Court’s far the nurses any person may independ- involved in this If case. who use judgment assign ent tasks to others or direct their work supervisor, professionals employed by organiza- is a then few subject protections.17 tions to the Act will receive its repeatedly As presentations warned in its to this Court: “If all it took statutory supervisor to be a showing were a employee that an gives discretionary aide, though direction to an even pursuant done to the customary profession, norms of the coverage professionals would be id., nullity.” 27; a virtual Brief for Petitioner see also Reply Brief (filed 1994). Petitioner 7-8 Jan. *24 of professionals inclusion to reconcile endeavor view, just in my supervisors, exclusion with v. Curtin NLRB Act,” consistent “rational is re- (1990); it Inc., 494 U. 775, 796 S. Scientific, Matheson contrary reverse quired therefore I would the Act. by of Appeals. the Court judgment