Lead Opinion
delivered the opinion of the Court.
Under the National Labor Relations Act, employees are deemed to be “supervisors” and thereby excluded from the protections of the Act if, inter alia, they exercise “independent judgment” in “responsibly . . . direet[ing]” other employees “in the interest of the employer.” 29 U. S. C. §152(11). This ease presents two questions: which party in an unfair-labor-practiee proceeding bears the burden of proving or disproving an employee’s supervisory status; and whether judgment is not “independent judgment” to the extent that it is informed by professional or technical training or experience.
I
In Pippa Passes, Kentucky, respondent Kentucky River Community Care, Inc., operates a care facility for residents who suffer from mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employs approximately 110 professional and nonprofessional employees in addition to roughly a dozen coneededly managerial or supervisory employees. In 1997, the Kentucky State District Council of Carpenters (a labor
At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were “supervisors” under §2(11) of the Act, 29 U. S. C. §152(11), and therefore excluded from the class of “employees” subject to the Act’s protection and includable in the bargaining unit. See §2(3), 29 U.S.C. §152(3). The Board’s Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see § 3(b), 29 U. S. C. § 153(b); 29 CFR §101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See § 9(c)(1), 29 U. S. C. § 159(c)(1). The Board denied respondent’s request for review of the Regional Director’s decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees.
Because direct judicial review of representation determinations is unavailable, AFL v. NLRB,
Respondent petitioned for review of the Board’s decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned. The Sixth Circuit granted respondent’s petition as it applied to the nurses and refused to enforce the bargaining order. It held that the Board had erred in placing the burden of proving supervisory status on respondent rather than on its General Counsel, and it rejected the Board’s interpretation of “independent judgment,” explaining that the Board had erred by classifying “the practice of a nurse supervising a nurse’s aide in administering patient care” as “‘routine’ [simply] because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with ‘management.’ ”
II
The Act expressly defines the term “supervisor” in §2(11), which 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 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).
The Act does not, however, expressly allocate the burden of proving or disproving a challenged employee’s supervisory status. The Board therefore has filled the statutory gap with the consistent rule that the burden is borne by
The Board argues that the Court of Appeals for the Sixth Circuit erred in not deferring to its resolution of the statutory ambiguity, and we agree. The Board’s rule is supported by “the general 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.” FTC v. Morton Salt Co.,
Applying its rule to this ease, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the §9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the § 8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, “the General Counsel carries the burden of proving the elements of an unfair labor practice,” id., at 401, which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U. S. C. § 556(d); Director, Office of Workers’ Compensation Programs v. Greenwich Collieries,
í — 1 t
The text of §2(11) of the Act that we quoted above, 29 U. S. C. § 152(11), sets forth a three-part test for deter-
Two aspects of the Board’s interpretation are reasonable, and hence controlling on this Court, see NLRB v. Town & Country Elec., Inc., supra, at 89-90; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
The Board, however, argues further that the judgment even of employees who are permitted by their employer to exercise a sufficient degree of discretion is not “independent judgment” if it is a particular kind of judgment, namely, “ordinary professional or technical judgment in directing less-skilled employees to deliver services.” Brief for Petitioner 11. The first five words of this interpretation insert a startling categorical exclusion into statutory text that does not suggest its existence. The text, by focusing on the “clerical” or “routine” (as opposed to “independent”) nature of the judgment, introduces the question of degree of judgment that we have agreed falls -within the reasonable discretion of the Board to resolve. But the Board’s categorical exclusion turns on factors that have nothing to do with the degree of discretion an employee exercises. Cf. Whitman v. American Trucking Assns., Inc.,
As it happens, though, only one class of supervisors would be eliminated in practice, because the Board limits its categorical exclusion with a qualifier: Only professional judgment that is applied “in directing less-skilled employees to deliver services” is excluded from the statutory category of “independent judgment.” Brief for Petitioner 11. This second rule is no less striking than the first, and is directly contrary to the text of the statute. Every supervisory function listed by the Act is accompanied by the statutory requirement that its exercise “requir[e] the use of independent judgment” before supervisory status will obtain, §152(11), but the Board would apply its restriction upon “independent judgment” to just 1 of the 12 listed functions: “responsibly
The Board’s refusal to apply its limiting interpretation of “independent judgment” to any supervisory function other than responsibly directing other employees is particularly troubling because just seven years ago we rejected the Board’s interpretation of part three of the supervisory test that similarly was applied only to the same supervisory function. See NLRB v. Health Care & Retirement Corp. of America,
The Board contends, however, that Congress incorporated the Board’s categorical restrictions on “independent judgment” when it first added the term “supervisor” to the Act in 1947. We think history shows the opposite. The Act as originally passed by Congress in 1935 did not mention supervisors directly. It extended to “employees” the “right to self-organization, to form, join, or assist labor organizations,
Well before the Taft-Hartley Act added the term “supervisor” to the Act, however, the Board had already been defining it, because while the Board agreed that supervisors were protected by the 1935 Act, it also determined that they should not be placed in the same bargaining unit as the employees they oversaw. To distinguish the two groups, the Board defined “supervisors” as employees who “supervise or direct the work of [other] employees . . . , and who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of such employees.” Douglas Aircraft Co., 50 N. L. R. B. 784, 787 (1943) (emphasis added). The “and” bears emphasis because it was a true conjunctive: The Board consistently held that employees whose only supervisory function was directing the work of other employees were not “supervisors” within its test. For example, in Bunting Brass & Bronze Co., 58 N. L. R. B. 618, 620 (1944), the Board wrote: “We are of the opinion that, while linemen do direct the work of [other] employees, they do not exercise substantial supervisory authority within the
When the Taft-Hartley Act added the term “supervisor” to the Act in 1947, it largely borrowed the Board’s definition of the term, with one notable exception: Whereas the Board required a supervisor to direct the work of other employees and perform another listed function, the Act permitted direction alone to suffice. “The term ‘supervisor’ means any individual having authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances.” Taft-Hartley Act §2(11), as amended, 29 U. S. C. § 152(11) (emphasis added). Moreover, the Act assuredly did not incorporate the Board’s current interpretation of the term “independent judgment” as applied to the function of responsible direction, since the Board had not yet developed that interpretation. It had had no reason to do so, because it had limited the category of supervisors more directly, by requiring functions in addition to responsible direction. It is the Act’s alteration of precisely that aspect of the Board’s jurisprudence that has pushed the Board into a running struggle to limit the impact of “responsibly to direct” on the number of employees qualifying for supervisory status — presumably driven by the policy concern that otherwise the proper balance of labor-management power will be disrupted.
It is upon that policy concern that the Board ultimately rests its defense of its interpretation of “independent judgment.” In arguments that parallel those expressed by the dissent in Health Care, see
What is at issue is the Board’s contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, “independent judgment,” that naturally includes them. And further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees.
* * *
We may not enforce the Board’s order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co.,
It is so ordered.
Notes
The Board in its reply brief in this Court steps back from this interpretation and argues that it has only drawn distinctions between degrees of authority. Reply Brief for Petitioner 3. But the opinions of the Board that developed its current interpretation of “independent judgment” clearly draw a categorical distinction. See, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996) (“Section 2(11) supervisory authority does
Justice Stevens argues in this ease, see post, at 725-726 (opinion concurring in part and dissenting in part), as the Board argued in NLRB v. Health Care & Retirement Corp. of America,
Our decision in Health Care cannot be distinguished, as Justice Stevens suggests, see post, at 729, n. 10, on the ground that there we found that the Court of Appeals had not erred in any respect. The basis for remand to an agency is the agency’s error on a point of law, not the reviewing court's. (That the reviewing court erred is irrelevant in light of "the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct ‘although the lower court relied upon a wrong ground or gave a wrong reason,”' SEC v. Chenery Corp.,
Concurrence Opinion
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 Act’s coverage. Moreover, even if I agreed with the majority’s view that the Board’s 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.”
Based on his evaluation of the evidence, the NLRB’s 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
Over the dissent of Judge Jones, the Court of Appeals set aside the Board’s 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 16a-19a. The panel majority also criticized the NLRB for interpreting the admittedly ambiguous statutory term “independent judgment” inconsistently with Sixth Circuit precedent.
II
Although it is not necessary to do so to overturn the Court of Appeals’ decision, the NLRB has asked us to reject the Sixth Circuit’s 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.
The question before us is whether the Board’s interpretation is both "rational and consistent with the Act.”
The term “independent judgment” is indisputably ambiguous, and it is settled law that the NLRB’s interpretation
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 Board’s interpretation. At the same time that Congress acted to exclude supervisors from the NLRA’s protection, it explicitly extended those same protections to professionals, who, by definition, engage in work that involves “the consistent exercise of discretion and judgment in its performance.”
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 supervisor’s discretion imposed by the employer. Thus, in a case like this, a court should not second-guess the Board’s evaluation of the authority of the nurses as building supervisors, or of the significance of the employer’s definition of that authority.
However, in a tour deforce supported by little more than ipse dixit, the Court concludes that no deference is due the Board’s evaluation of the “kind of judgment” that professional employees exercise. Ante, at 714 (emphasis deleted). Thus, under the Court’s view, it is impermissible for the Board to attach a different weight to a nurse’s judgment that an employee should be reassigned or disciplined than to a nurse’s judgment that the employee should take a patient’s temperature, even if nurses routinely instruct others to take a patient’s temperature but do not ordinarily reassign or discipline employees. The Court’s approach finds no support in the text of the statute, and is inconsistent with our case law. See, e. g., Yeshiva,
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 715-716. 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,
Ill
Even if I shared the majority’s 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.,
In any case, I do not agree with the majority’s view. Given the Regional Director’s 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.
The RNs did have the authority to file “incident reports, but so [could] any other employee.” App. to Pet. for Cert. 51a.
“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 direct patient care by virtue of their training and expertise, not because of their connection with‘management.’” Id., at 17a.
Oddly, the majority in this Court omits one element — namely, “‘in accordance with employer-specified standards.’ ” Ante, at 715-716. In so
The majority, however, pays scant heed to the adjudicative record when it asserts that the Board’s interpretation would in essence eliminate the supervisory exception with respect to the “responsibly to direct” function. See ante, at 714-715.
“[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,
The majority suggests that the Board’s interpretation of the term “independent judgment” is particularly problematic in light of this Court’s decision in NLRB v. Health Care & Retirement Corp. of America,
As the American Nurses Association points out in its amicus brief, the scope of nursing practice routinely involves the exercise of judgment and the supervision of others. Brief for American Nurses Association as Amicus Curiae 2-6.
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 Act's coverage would be “truly supervisory.” S. Rep. No. 105, 80th Cong., 1st Sess., pp. 4,19 (1947), 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, pp. 410, 425 (1948).
In fact, in Yeshiva,
Even under the Court’s approach, since the NLRB might well prevail under the correct allocation of the burden of proof, the appropriate course of action in this ease would be to return the case to the NLRB for further proceedings. See NLRB v. Bell Aerospace Co.,
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. 18-19, 23-24. 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.
Neither the licensed practical nurses nor the rehabilitation assistants report to the RNs. Id., at 30,34,45,61.