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Oakwood Healthcare, Inc. 
Case 7–RC–22141
September 29, 2006 

DECISION ON REVIEW AND ORDER
By Chairman Battista and Members Liebman, Schaumber, Kirsanow, and Walsh 

 

On February 4, 2002, the Acting Regional Director for Region 7 issued a Decision and Direction of Election (pertinent portions of which are attached as an appendix) finding that the Employer’s charge nurses, whose supervisory status is in dispute, should be included in the petitioned-for unit of all registered nurses (RNs) working for the Employer at its Oakwood Heritage Hospital located in Taylor, Michigan.  In accord with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Employer filed a timely request for review.  By Order dated March 5, 2002, the Board granted review solely with respect to the issue of whether the Employer’s charge nurses are supervisors under the Act.1  The Employer and the Petitioner filed briefs on review.

On July 25, 2003, the Board issued a notice and invitation to the Employer, the Petitioner, and interested amici curiae to file briefs addressing the supervisory issue in this case in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001).2  The Board sought, inter alia, comments relating to (1) the meaning of “assign,” “responsibly to direct,” and “independent judgment,” as those terms are used in Section 2(11) of the Act; and (2) an appropriate test for determining the unit placement of employees who take turns or “rotate” as supervisors.  In response, the Employer, the Petitioner, and a number of amici curiae3 filed extensive briefs on these subjects and urged various analytical methods for interpreting the terms of Section 2(11).

Having considered the record and briefs of the parties and amici, and the Supreme Court’s decision in Kentucky River , we refine the analysis to be applied in assessing supervisory status.  That refined analysis honors our responsibility to protect the rights of those covered by the Act; hews to the language of Section 2(11) and judicial interpretation thereof, most particularly the guidance provided by the Supreme Court in Kentucky River and other decisions; and endeavors to provide clear and broadly applicable guidance for the Board’s regulated community.  Applying that analysis in the instant case, we reverse the decision of the Acting Regional Director and find that certain charge nurses4 should be excluded from the unit5 as statutory supervisors.

i.  facts

The Employer has approximately 181 staff RNs who provide direct care to patients in 10 patient care units at Oakwood Heritage Hospital , an acute care hospital with 257 licensed beds.6  The patient care units are behavioral health, emergency room, intensive care, intermediate care, medical/surgical east, medical/surgical west, operating room, pain clinic, post-anesthesia care/recovery, and rehabilitation.  The RNs report to the on-site nursing manager, clinical managers, clinical supervisors, and assistant clinical managers—all stipulated supervisors.  In providing patient care, RNs follow the doctors’ orders and perform tasks such as administering medications, running blood tests, taking vital signs, observing patients, and processing admissions and discharges.  RNs may direct less-skilled employees to perform tasks such as feeding, bathing, and walking patients.  RNs may also direct employees to perform tests that are ordered by doctors for their patients.

Many RNs at the hospital serve as charge nurses.  Charge nurses are responsible for overseeing their patient care units, and they assign other RNs, licensed practical nurses (LPNs), nursing assistants, technicians, and paramedics to patients on their shifts.7  Charge nurses also monitor the patients in the unit, meet with doctors and the patients’ family members, and follow up on unusual incidents.  Charge nurses may also take on their own patient load, but those who do assume patient loads will sometimes, but not always, take less than a full complement of patients.  When serving as charge nurses, RNs receive an additional $1.50 per hour.

Twelve RNs at the hospital serve permanently as charge nurses on every shift they work,8 while other RNs take turns rotating into the charge nurse position.  In the patient care units of the hospital employing permanent charge nurses,9 other RNs may serve as charge nurses on the permanent charge nurses’ days off or during their vacations.  Depending on the patient care unit and the work shift, the rotation of the charge nurse position may be worked out by the RNs among themselves, or it may be set by higher-level managers.  The frequency and regularity with which a particular RN will serve as a “rotating” charge nurse depends on several factors (i.e., the size of the patient care unit in which the RN works, the number of other RNs who serve as rotating charge nurses in that unit, and whether the unit has any permanent charge nurses).  However, some RNs do not serve as either rotating or permanent charge nurses at the hospital.  Most individuals who fit in this category are either new employees at the hospital10 or those who work in the operating room or pain clinic units.  There are also a handful of RNs at the hospital who choose not to serve as charge nurses.

The Petitioner, joined by several amici, would include all the charge nurses in the RN unit.  The Employer, joined by other amici, seeks to exclude the permanent and the rotating charge nurses from the unit on the basis that they are supervisors within the meaning of Section 2(11) because they use independent judgment in assigning and responsibly directing employees.11  The Acting Regional Director found that none of the charge nurses are 2(11) supervisors and directed an election in the RN unit including them.

ii.  legal principles

A.  Introduction

In 1947, the Supreme Court held in Packard Motor Car Co. v. NLRB, 330 U.S. 485, that supervisors were included in the definition of “employee” as used in Section 2(3) of the Act.  In response, Congress amended the National Labor Relations Act that same year, adding Section 2(11) to specifically exclude supervisors from the Act’s definition of “employee.”

Section 2(11) defines “supervisor” as

 

any individual having the 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.

 

Pursuant to this definition, individuals are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 supervisory functions (e.g., “assign” and “responsibly to direct”) listed in Section 2(11); (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;” and (3) their authority is held “in the interest of the employer.”12  Supervisory status may be shown if the putative supervisor has the authority either to perform a supervisory function or to effectively recommend the same.  The burden to prove supervisory authority is on the party asserting it.13

Both the drafters of the original amendment and Senator Ralph E. Flanders, who proposed adding the term “responsibly to direct” to the definition of supervisor,14 agreed that the definition sought to distinguish two classes of workers: true supervisors vested with “genuine management prerogatives,” and employees such as “straw bosses, lead men, and set-up men” who are protected by the Act even though they perform “minor supervisory duties.”  NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947)).15  Thus, the dividing line between these two classes of workers, for purposes of Section 2(11), is whether the putative supervisor exercises “genuine management prerogatives.”  Those prerogatives are specifically identified as the 12 supervisory functions listed in Section 2(11) of the Act.16  If the individual has authority to exercise (or effectively recommend the exercise of) at least one of those functions, 2(11) supervisory status exists, provided that the authority is held in the interest of the employer and is exercised neither routinely nor in a clerical fashion but with independent judgment.

Whether an individual possesses a 2(11) supervisory function has not always been readily discernible by either the Board or reviewing courts.  Indeed, in applying Section 2(11), the Supreme Court has recognized that “[p]hrases [used by Congress] such as ‘independent judgment’ and ‘responsibly to direct’ are ambiguous.”17

As a general principle, the Board has exercised caution “not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect.”  Chevron Shipping Co., 317 NLRB 379, 381 (1995) (internal quotations omitted).  However, in applying that principle, the Board has occasionally reached too far.  Indeed, on two occasions involving the healthcare industry, the industry at issue in this case, the Supreme Court rejected the Board’s overly narrow construction of Section 2(11) as “inconsistent with the Act.”18  Accordingly, although we seek to ensure that the protections of the Act are not unduly circumscribed, we also must be mindful of the legislative and judicial constraints that guide our application and interpretation of the statute.  Thus, exercising our discretion to interpret ambiguous language in the Act,19 and consistent with the Supreme Court’s instructions in Kentucky River, we herein adopt definitions for the terms “assign,” “responsibly to direct,” and “independent judgment” as those terms are used in Section 2(11) of the Act.

In interpreting those statutory terms, we do not, as the dissent maintains, blindly adopt “dictionary-driven” definitions.  Rather, we begin our analysis with a first principle of statutory interpretation that “in all cases involving statutory construction, our starting point must be the language employed in Congress, . . . and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.”  INS v. Phinpathya, 464 U.S. 183, 189 (1984) (citations and internal quotation marks omitted).20  Thus, we eschew a results-driven approach and we start, as we must, with the words of the statute.  We thereafter consider the Act as a whole and its legislative history, applicable policy considerations, and Supreme Court precedent.  In so doing, our goal is faithfully to apply the statute while providing meaningful and predictable standards for the adjudication of future cases and the benefit of the Board’s constituents.  We do not, as the dissent contends, ignore potential “real-world” consequences of our interpretations.  Rather, we simply decline to engage in an analysis that seems to take as its objective a narrowing of the scope of supervisory status and to reason backward from there, relying primarily on selective excerpts from legislative history.

B.  Assign and Responsibly to Direct

Possession of the authority to engage in (or effectively recommend) any one of the 12 supervisory functions listed in Section 2(11) is necessary to establish supervisory status.  Since the Act delineates 12 separate functions, and since  canons of statutory interpretation caution us to eschew a construction that would result in redundancy, we start from the premise that each supervisory function is to be accorded a separate meaning.21  That the terms “assign” and “responsibly to direct” were not intended to be synonymous is also readily apparent from the legislative history of the 1947 amendment to the Act.  Senator Flanders, who offered the amendment adding the phrase “responsibly to direct” to Section 2(11), believed that the amendment addressed an element of supervisory status missing from an earlier amendment, which included “assign” as 1 of 11 supervisory functions.  NLRB, Legislative History of the Labor Management Relations Act of 1947, 103–104. Consequently, consistent both with the text of the Act and its legislative history, we ascribe distinct meanings to “assign” and “responsibly to direct.”

1.   Assign

The ordinary meaning of the term “assign” is “to appoint to a post or duty.”  Webster’s Third New International Dictionary 132 (1981).  Because this function shares with other 2(11) functions—i.e., hire, transfer, suspension, layoff, recall, promotion, discharge, reward or discipline—the common trait of affecting a term or condition of employment, we construe the term “assign” to refer to the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.  That is, the place, time, and work of an employee are part of his/her terms and conditions of employment.  In the health care setting, the term “assign” encompasses the charge nurses’ responsibility to assign nurses and aides to particular patients.  It follows that the decision or effective recommendation to affect one of these—place, time, or overall tasks—can be a supervisory function.

The assignment of an employee to a certain department (e.g., housewares) or to a certain shift (e.g., night) or to certain significant overall tasks (e.g., restocking shelves) would generally qualify as “assign” within our construction.  However, choosing the order in which the employee will perform discrete tasks within those assignments (e.g., restocking toasters before coffeemakers) would not be indicative of exercising the authority to “assign.”  To illustrate our point in the health care setting, if a charge nurse designates an LPN to be the person who will regularly administer medications to a patient or a group of patients, the giving of that overall duty to the LPN is an assignment.  On the other hand, the charge nurse’s ordering an LPN to immediately give a sedative to a particular patient does not constitute an assignment.  In sum, to “assign” for purposes of Section 2(11) refers to the charge nurse’s designation of significant overall duties to an employee, not to the charge nurse’s ad hoc instruction that the employee perform a discrete task.

Our dissenting colleagues take the view that, for purposes of Section 2(11), an assignment is an act that must affect “basic” terms and conditions of employment or an employee’s “overall status or situation.”  That assertion is supported neither by precedent nor the language of the statute, and we see no basis for superimposing a unique and heightened standard on the supervisory function of assigning. It is enough that the assignment affect the employment of the employee in a manner similar to the other supervisory functions in the series set forth in Section 2(11).  For example, there can be “plum assignments” and “bum assignments”—assignments that are more difficult and demanding than others.  The power to assign an employee to one or the other is of some importance to the employee and to management as well.  Certainly, in the health care context, the assignment of a nurse’s aide to patients with illnesses requiring more care rather than to patients with less demanding needs will make all the difference in the work day of that employee.  It may also have a bearing on the employee’s opportunity to be considered for future promotions or rewards.  From the employer’s perspective, matching a patient’s needs to the skills and special training of a particular nurse is among those factors critical to the employer’s ability to successfully deliver health care services.  In short, we do not find the dissent’s interpretation of “assign” to be in accord with the statutory language.

The dissent responds that the authority to assign employees to “more onerous or more desirable” tasks should be “considered in relation to the Section 2(11) authority to ‘discipline’ or ‘reward.’”  We disagree.  The purpose behind assigning an employee to a more demanding job may be to see if that employee is up to the challenge.  Far from an imposition of discipline, it could well be a prelude to advancement.  By the same token, assigning an employee to comparatively easy overall tasks is not necessarily a reward.  It could signal lack of confidence in the employee’s ability to accomplish anything more challenging.  And, quite apart from any of the foregoing considerations, the assignment of “plum” and “bum” jobs may well reflect nothing more than the fact that both sorts of jobs must be done, and somebody must do them.  The fact remains that the authority to determine which kind of overall tasks an employee will perform affects the employee’s terms and conditions of employment in a significant way that is distinct from the concepts of “reward” or “discipline.”

The dissent says that our interpretation of “assign” to include the assignment of employees to significant overall tasks violates the canon against redundancy by failing to draw a line between assigning and directing.  That is not so.  As discussed below, direction may encompass ad hoc instructions to perform discrete tasks; assignment does not.

Our dissenting colleagues also criticize our interpretation of “assign” as somehow inconsistent with the way the term is used in everyday speech, despite the fact that the Board has construed the term in precisely this way.22  In their view, “it must be the employees who are being assigned, not the tasks.”  (Emphasis in original.)  Thus, while the dissent takes issue with us first drawing upon the ordinary meaning of the statutory words used, it relies on overly subtle and debatable grammatical distinctions to interpret the statutory terms.  The term “assign” encompasses the assignment of employees to significant overall tasks; and the mere fact that, in common usage, speakers refer interchangeably to assigning employees to tasks and tasks to employees does not persuade us to adopt the dissent’s definition of “assign.”  And, contrary to the dissent, the Supreme Court’s Kentucky River decision does not support their position in this regard.23  In any event, debating linguistic niceties does little to realistically assist in formulating workable definitions that fit both the language of Section 2(11) and the overall intent of the provision.24

Our dissenting colleagues would interpret “assign” to apply to a determination of an employee’s (1) position, i.e., his or her job classification, (2) designated work site, i.e., facility or departmental unit, or (3) work hours, i.e., shift.  While that interpretation overlaps in part with ours, it does not adequately differentiate between the other related supervisory functions of Section 2(11).  For example, instead of interpreting “assign” to include, as we do, assigning overall tasks, the dissent would require that the assignment be to an overall job classification.  However, the dissent does not explain where the 2(11) function “assign” ends and the other supervisory function “transfer” begins.  In the dissent’s view, to “transfer” means, inter alia, to “reassign . . . to a different [job] classification.”  On this view, however, “transfer” becomes merely a subset of “assign,” rendering “transfer” redundant.25

Finally, the dissent also criticizes our interpretation of “assign” on the ground that it “threatens to sweep almost all staff nurses outside of the Act’s protection.”  As we stated above, however, we decline to start with an objective—for example, keeping all staff nurses within the Act’s protection--and fashioning definitions from there to meet that targeted objective.  We have given “assign” the meaning we believe Congress intended.  We are not swayed to abandon that interpretation by predictions of the results it will entail.26  We also do not prejudge what the result in any given case will be.  We shall continue to analyze each case on its individual facts, applying the standards set forth herein in a manner consistent with the Congressional mandate set forth in Section 2(11).

2.  Responsibly to Direct

We now address the term “responsibly to direct.”  The phrase “responsibly to direct” was added to Section 2(11) after the other supervisory functions of Section 2(11) already had been enumerated in the proposed legislation.  Senator Flanders, who made the proposal to add “responsibly to direct” to Section 2(11), explained that the phrase was not meant to include minor supervisory functions performed by lead employees, straw bosses, and set-up men.  Rather, the addition was designed to ensure that the statutory exemption of Section 2(11) encompassed those individuals who exercise basic supervision but lack the authority or opportunity to carry out any of the other statutory supervisory functions (e.g., where promotional, disciplinary and similar functions are handled by a centralized human resources department).  Senator Flanders was concerned that the person on the shop floor would not be considered a supervisor even if that person directly oversaw the work being done and would be held responsible if the work were done badly or not at all.27  Consequently, the authority “responsibly to direct” is not limited to department heads as the dissent suggests.  The “department head” may be a person between the personnel manager and the rank and file employee, but he or she is not necessarily the only person between the manager and the employee.  If a person on the shop floor has “men under him,” and if that person decides “what job shall be undertaken next or who shall do it,” that person is a supervisor, provided that the direction is both “responsible” (as explained below) and carried out with independent judgment.  See footnote 19, supra.  In addition, as the statute provides and Senator Flanders himself recognized, the person who effectively recommends action is also a supervisor.28

Since the enactment of Senator Flanders’ amendment, the Board rarely has sought to define the parameters of the term “responsibly to direct.”  In Providence Hospital ,29 the Board majority summarized past efforts on the part of several courts of appeals, namely the First,30 Fifth,31 Sixth,32 Seventh,33 and Ninth34 Circuits, to ascertain the limits of this term.  The Board majority in Providence Hospital concluded that these courts endorsed, for the most part, an accountability definition for the word “responsibly” that was consistent with the ordinary meaning of the word.35  The majority cited to the Fifth Circuit’s interpretation, which is set forth in NLRB v. KDFW-TV, Inc., supra at 1278, as follows:

 

“To be responsible is to be answerable for the discharge of a duty or obligation.” . . .  In determining whether “direction” in any particular case is responsible, the focus is on whether the alleged supervisor is “held fully accountable and responsible for the performance and work product of the employees” he directs. . . .  Thus, in NLRB v. Adam [&] Eve Cosmetics, Inc., 567 F.2d 723, 727 (7th Cir. 1977), for example, the court reversed a Board finding that an employee lacked supervisory status after finding that the employee had been reprimanded for the performance of others in his Department.

 

The majority in Providence Hospital , however, found it unnecessary to pass on the courts’ accountability definition.36  We have decided to adopt that definition.

We agree with the circuit courts that have considered the issue and find that for direction to be “responsible,” the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.  This interpretation of “responsibly to direct” is consistent with post– Kentucky River Board decisions that considered an accountability element for “responsibly to direct.”37

Thus, to establish accountability for purposes of responsible direction, it must be shown that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary.  It also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps.

Our dissenting colleagues express the concern that our definition of “responsibly to direct” will result in supervisory authority being extended to “every ‘person on the shop floor.’”  In our view, however, the emphasis on accountability contained in the definition will prevent such an occurrence.

Significantly, the concept of accountability creates a clear distinction between those employees whose interests, in directing other employees’ tasks, align with management from those whose interests, in directing other employees, is simply the completion of a certain task.  In the case of the former, the dynamics of hierarchical authority will arise, under which the directing employee will have, if and to the extent necessary, an adversarial relationship with those he is directing.  The directing employee will rightly understand that his interests, in seeing that a task is properly performed, are to some extent distinct from the interests of those under his direction.  That is, in directing others, he will be carrying out the interests of management – disregarding, if necessary, employees’ contrary interests.  Excluding from coverage of the Act such individuals whose fundamental alignment is with management is at the heart of Section 2(11).38

C.  Independent Judgment

In Kentucky River , supra at 713, the Supreme Court took issue with the Board’s interpretation of “independent judgment” to exclude the exercise of “ordinary professional or technical judgment in directing less skilled employees to deliver services.”  That is, in the Board’s then-extant view, even if the Section 2(11) function is exercised with a substantial degree of discretion, there was no independent judgment if the judgment was of a particular kind, namely, “ordinary professional or technical judgment in directing less-skilled employees to deliver services.”  While recognizing that the Board has the discretion to resolve ambiguities in the Act,39 the Supreme Court found that the Board had improperly inserted “a startling categorical exclusion into statutory text that does not suggest its existence.” The Court said that the Board had gone “beyond the limits of what is ambiguous and contradicted what in our view is quite clear.”  Id. at 714.  The Court held that it is the degree of discretion involved in making the decision, not the kind of discretion exercised—whether professional, technical, or otherwise—that determines the existence of “independent judgment” under Section 2(11).  Id.   We are guided by these admonitions.

Consistent with the Court’s Kentucky River decision, we adopt an interpretation of the term “independent judgment” that applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether the judgment is exercised using professional or technical expertise.  In short, professional or technical judgments involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of Section 2(11).  Thus, for example, a registered nurse who makes the “professional judgment” that a catheter needs to be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the performance of that work.  Whether the registered nurse is a 2(11) supervisor will depend on whether his or her responsible direction is performed with the degree of discretion required to reflect independent judgment.

To ascertain the contours of “independent judgment,” we turn first to the ordinary meaning of the term.40  “Independent” means “not subject to control by others.”  Webster’s Third New International Dictionary 1148 (1981).  “Judgment” means “the action of judging; the mental or intellectual process of forming an opinion or evaluation by discerning and comparing.”  Webster’s Third New International Dictionary 1223 (1981).  Thus, as a starting point, to exercise “independent judgment” an individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.  As more fully explained below, however, these requisites are necessary, but not in all instances sufficient, to constitute “independent judgment” within the meaning of the Act.  As we said above, although we start with the “ordinary meaning of the words used,” INS v. Phinpathya, supra, 464 U.S. at 189, we also consider the Act as a whole, its legislative history, policy considerations, and judicial precedent.  Here, we must interpret “independent judgment” in light of the contrasting statutory language, “not of a merely routine or clerical nature.”  It may happen that an individual’s assignment or responsible direction of another will be based on independent judgment within the dictionary definitions of those terms, but still not rise above the merely routine or clerical.  We will expand upon and illustrate this point below, after a fuller explanation of the meaning of “independent.”

In our view, and that of the Supreme Court, actions form a spectrum between the extremes of completely free actions and completely controlled ones, and the degree of independence necessary to constitute a judgment as “independent” under the Act lies somewhere in between these extremes.  As the Court indicated in Kentucky River , supra at 713–714, there are, at one end of the spectrum, situations where there are detailed instructions for the actor to follow.  At the other end, there are other situations where the actor is wholly free from constraints.  In determining the meaning of the term “independent judgment” under Section 2(11), the Board must assess the degree of discretion exercised by the putative supervisor.

Consistent with the Court’s view, we find that a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement.41  Thus, for example, a decision to staff a shift with a certain number of nurses would not involve independent judgment if it is determined by a fixed nurse-to-patient ratio.  Similarly, if a collective-bargaining agreement required that only seniority be followed in making an assignment, that act of assignment would not be supervisory.42

On the other hand, the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices.43  Thus a registered nurse, when exercising his/her authority to recommend a person for hire, may be called upon to assess the applicants’ experience, ability, attitude, and character references, among other factors.  If so, the nurse’s hiring recommendations likely involve the exercise of independent judgment.  Similarly, if the registered nurse weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel, the nurse’s assignment involves the exercise of independent judgment.  As Senator Flanders remarked, the supervisor determines “who shall do [the job]” and in making that determination the supervisor makes “[a] personal judgment based on personal experience, training, and ability.”44

As stated above, Section 2(11) contrasts “independent judgment” with actions that are “of a merely routine or clerical nature.”  Thus, the statute itself provides a baseline for the degree of discretion required to render the exercise of any of the enumerated functions of 2(11) supervisory.  The authority to effect an assignment, for example, must be independent, it must involve a judgment, and the judgment must involve a degree of discretion that rises above the “routine or clerical.”  See, e.g., J.C. Brock Corp., 314 NLRB 157, 158 (1994) (quoting Bowne of Houston, 280 NLRB 1222, 1223 (1986)) (“[T]he exercise of some supervisory authority in a merely routine, clerical, perfunctory, or sporadic manner does not confer supervisory status.”).  If there is only one obvious and self-evident choice (for example, assigning the one available nurse fluent in American Sign Language (ASL) to a patient dependent upon ASL for communicating), or if the assignment is made solely on the basis of equalizing workloads, then the assignment is routine or clerical in nature and does not implicate independent judgment, even if it is made free of the control of others and involves forming an opinion or evaluation by discerning and comparing data.  By contrast, if the hospital has a policy that details how a charge nurse should respond in an emergency, but the charge nurse has the discretion to determine when an emergency exists or the authority to deviate from that policy based on the charge nurse’s assessment of the particular circumstances, those deviations, if material, would involve the exercise of independent judgment.

The dissent portends that our analysis in assessing supervisory status under Section 2(11) may exclude “most professionals” from coverage under the Act.  We disagree.  An individual is a professional employee under Section 2(12) of the Act if he/she, inter alia, consistently exercises discretion and judgment in the performance of “predominantly intellectual and varied” work.45  On the other hand, an individual has the status of a supervisor under Section 2(11) if he/she exercises independent judgment in connection with one or more of the 12 specific functions listed by that provision of the Act.  For example, in the case of assignment and direction, even if the charge nurse makes the professional judgment that a particular patient requires a certain degree of monitoring, the charge nurse is not a supervisor unless and until he or she assigns an employee to that patient or responsibly directs that employee in carrying out the monitoring at issue.  Thus, a charge nurse is not automatically a “supervisor” because of his or her exercise of professional, technical, or experienced judgment as a professional employee.  And it is equally true that his or her professional status does not prevent the charge nurse from having statutory supervisory status if he or she exercises independent judgment in assigning employees work or responsibly directing them in their work.  To hold otherwise would come dangerously close to recommitting the very error the Supreme Court corrected in Kentucky River .

D.  Persons Who Are Supervisors Part of the Time

Where an individual is engaged a part of the time as a supervisor and the rest of the time as a unit employee, the legal standard for a supervisory determination is whether the individual spends a regular and substantial portion of his/her work time performing supervisory functions.46  Under the Board’s standard, “regular” means according to a pattern or schedule, as opposed to sporadic substitution.47  The Board has not adopted a strict numerical definition of substantiality48 and has found supervisory status where the individuals have served in a supervisory role for at least 10–15 percent of their total work time.49  We find no reason to depart from this established precedent.

iii.  the case at bar

It is well established that the “burden of proving supervisory status rests on the party asserting that such status exists.”  Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003); accord Kentucky River, 532 U.S. at 711–712 (deferring to existing Board precedent allocating burden of proof to party asserting that supervisory status exists).  The party seeking to prove supervisory status must establish it by a preponderance of the evidence.  Dean & Deluca, 338 NLRB at 1047; Bethany Medical Center , 328 NLRB 1094, 1103 (1999).

As discussed below, we find that the Employer has failed to establish that its charge nurses possess the authority to “responsibly to direct” employees within the meaning of Section 2(11).  However, we also find that the Employer has adduced evidence sufficient to establish that certain of its permanent charge nurses are supervisors based on their delegated authority to assign employees using independent judgment.  Finally, we find that the Employer has failed to establish that its rotating charge nurses, as opposed to the 12 permanent charge nurses we find to be supervisors, spend a regular and substantial portion of their work time performing supervisory functions.  Consequently, we exclude only the 12 permanent charge nurses from the unit.

A.  Responsible Direction

The Employer alleges that its charge nurses responsibly direct nursing staff by directing them to perform certain tasks.  As part of their duties, the charge nurses are responsible for checking the crash cart, taking an inventory of narcotics, and providing statistical information to Heritage’s administrative staff for their shifts.  The charge nurses may undertake these tasks themselves or delegate them to another staff member working that shift.  The delegation of these charge-nurse specific tasks is the sole basis for the Employer’s claim that the charge nurses responsibly direct the nursing staff.50

We find that the Employer failed to carry its burden of proving that the charge nurses responsibly direct the nursing staff within the meaning of Section 2(11).  As explained above, to constitute “responsible” direction the person performing the oversight must be held accountable for the performance of the task, and must have some authority to correct any errors made.  The Employer has not demonstrated that the charge nurses meet this accountability standard.  The record reveals no evidence that the charge nurses must take corrective action if other staff members fail to adequately check the crash cart, take the narcotics inventory, or provide the statistical information to management.  There is no indication that the charge nurses are subject to discipline or lower evaluations if other staff members fail to adequately perform these charge nurse-specific tasks.  Instead, the Employer points to an instance in which it disciplined a charge nurse for failing to make fair assignments.  This evidence, however, shows that the charge nurses are accountable for their own performance or lack thereof, not the performance of others, and consequently is insufficient to establish responsible direction.

B.  Assignment

The record establishes that charge nurses assign nursing personnel to patients.  At the beginning of each shift,51 and as new patients are admitted thereafter, the charge nurses for each patient care unit (except the emergency room) assign the staff52 working the unit to the patients that they will care for over the duration of the shift.

In the emergency room, the process of assigning work operates differently.  There, the charge nurses have primary responsibilities to “triage” the incoming patients and keep the other patient care units in the hospital informed about possible admissions from the emergency room.  The charge nurses do not assign nursing personnel to patients in this department.  Rather, the charge nurses assign employees to geographic areas within the emergency room.   In making these assignments, the charge nurses do not take into account employee skill or the nature or severity of the patient’s condition.  After these initial assignments, the employees then rotate geographical locations within the emergency room among themselves on a periodic basis.

The charge nurses’ assignment of patients to other staff and assignment of nurses to specific geographic locations within the emergency room fall within our definition of “assign” for purposes of Section 2(11).  In patient care units other than the emergency room, the actions of the charge nurses involve assigning nurses to patients in rooms and “giving significant overall tasks to an employee.”  The charge nurses in the emergency room designate employees to a particular place.  The charge nurses’ assignments determine what will be the required work for an employee during the shift, thereby having a material effect on the employee’s terms and conditions of employment.  Unlike the case of Senator Flanders’ “straw bosses, leadmen, and set-up men,” the charge nurse’s duties of assignment are not “incidental” to the charge nurse’s own nursing duties.  The charge nurse has his or her own patients, but independently of that, he or she will assign other nursing personnel to other patients.

Having found that the charge nurses hold the authority to engage in one of the supervisory functions of Section 2(11), our next step is to determine whether the charge nurses exercise independent judgment in making these assignments.

C.  Independent Judgment

The charge nurses at the hospital make their assignments by choosing between or among the members of the staff available on each shift.  In addition to the charge nurse, there are two to six RNs on each shift, depending on the time of day and the unit, and many of the units also have licensed practical nurses or other licensed staff working each shift.  In the health care context, choosing among the available staff frequently requires a meaningful exercise of discretion.  Matching a nurse with a patient may have life and death consequences.  Nurses are professionals, not widgets, and may possess different levels of training and specialized skills.  Similarly, patients are not identical and may require highly particularized care.  A charge nurse’s analysis of an available nurse’s skill set and level of proficiency at performing certain tasks, and her application of that analysis in matching that nurse to the condition and needs of a particular patient, involves a degree of discretion markedly different than the assignment decisions exercised by most leadmen.  As discussed below, the record evidence establishes that a number of the Employer’s charge nurses exercise independent judgment in assigning other staff to patients and therefore possess supervisory authority under Section 2(11) of the Act.

Employer witnesses Brenda Theisen, Carolyn Carney, Sue Caines, and Nicholas Paul Mikaelian Jr., and Petitioner witness Nancy Coffee principally testified about how charge nurses at the hospital make their selections of staff for patient assignments in units other than the emergency room.  The testimony of Employer witness Deborah Vogel and Petitioner witness Carol Welch focused on the charge nurses’ assignments in the emergency room.53

As the nursing site leader and director of patient care services at the Hospital, Brenda Theisen has overall responsibility for nursing care delivered within the hospital.  She has been associated in various nursing positions with the hospital since 1985, and is very familiar with the assignment duties of charge nurses throughout the hospital, particularly the intermediate care unit based on her 10 years of service working as a staff nurse and later as nurse manager in that unit.  According to her testimony, the Employer’s general patient care policy guides the charge nurses in making the patient care assignments at the hospital.  On its face, this written policy is not so detailed or thorough as to be outcome determinative, but rather the policy permits the charge nurses, in making assignments, to take into account “the ability of the patient to do self care, degree of illness, complexity of nursing skills required, and the competency and qualification of the staff.”  Theisen testified that the charge nurses can choose personnel for assignments based on judgments as to the particular condition and medical needs of a given patient and the skill sets or specialized training of the available staff.  Theisen testified, for example, that a charge nurse would select a nurse “who is particularly good [at peritoneal dialysis] to take care of [a] patient who requires [such treatment]” or assign a nurse with a proficiency in “vasoactive drug monitoring” to take care of a patient requiring such attention.  Theisen also testified that charge nurses take into account a host of other factors in making assignments, including the amount of time required to perform specific patient care functions (which, in turn, would limit a nurse’s availability to attend to other patients), competence levels, licensing, personalities, and compatibility of staff members.

Like Theisen, Carolyn Carney has a long history of working at the hospital, with 13 years of service as a mental health staff nurse.  As the assistant clinical manager for the mental health unit, Carney has the opportunity to observe new nurses perform charge nurse duties during their training period.  Carney testified that based on her observations she determines when the new nurses are ready to assume the role of charge nurse on their own.  As did Theisen, Carney testified that charge nurses are required to make informed judgments about their patients and staff in order to make patient care assignments.  As an example, she testified that if a patient in the behavioral health unit had medical as well as psychiatric problems, the charge nurse could exercise her discretion to assign an RN rather than a mental health worker to that patient.  Similarly, Carney testified that charge nurses would take into account a myriad of factors, such as the aggressiveness of the patient and a care giver’s ability to respond to the same, in making assignment decisions.  Carney further testified that there is no written document that would tell a charge nurse which particular staff to assign to which patients on any given day.

Sue Caines, the assistant clinical manager for the medical/surgical east and medical/surgical west units since 2000, testified that charge nurses consider specific patient conditions and needs, staff’s special training or certifications, the continuity of care, and geographic location of the patient’s room54 in making assignments.  She testified, for example, that if a chemotherapy, orthopedic, or pediatric patient is involved, the charge nurse considers whether the staff to be assigned has the special training and can perform the necessary care for that type of patient before making the assignments.  She further testified that a nurse is not consistently assigned to patients in a certain set of rooms on either the medical/surgical east or west units.

Nicholas Paul Makaelian Jr., the assistant clinical manager for in-patient rehabilitation since 2000, testified about his experience and knowledge relating to charge nurse’s assignments in his unit.  He has made staff assignments in his unit.  He testified that the charge nurse takes several factors—such as the nature and severity of the patient’s condition, patients’ gender-based sensitivities, patient population number and length of stay,55 and staff licensing—into consideration when making assignment decisions.

Nancy Coffee has worked as an RN in the intermediate care unit for 10 years prior to the hearing.  She worked a part-time schedule allowing her to rotate into the charge nurse position in her unit about one day per week.  She testified that the charge nurse in her unit makes staff assignments based on several factors.  She explained that the charge nurse considers such factors as the patient’s condition, continuity of care, gender and personality of the staff and patients, and specific skills and abilities (especially if flex nurses are temporarily assigned to her unit).  She testified that as charge nurse she reassessed patient care assignments during a shift because of personality clashes between a patient and a nurse.

Deborah Vogel, the assistant clinical manager of the emergency room, and Carol Welch, an emergency room RN, gave testimony about the assignment authority exercised by the emergency room charge nurses.  They testified that the initial staff assignments in the emergency room are geographically based.  According to their consistent testimony, the emergency room, unlike other in-patient units of the Hospital, is arranged into three divisions and the charge nurse assigns staff to a division (i.e. room) on a rotational basis to equalize the workload.  Their testimony reveals that if one area of the emergency room becomes particularly busy during the shift, the charge nurse directs the RN assigned to the section for noncritical patients to assist the RN in the busy section of the emergency room.

The Employer provided evidence that the charge nurses at the hospital relied upon their assessments of the patients’ conditions and needs, the nursing personnel’s ability, and other factors they deemed relevant depending on their unit.  Witnesses repeatedly testified that the charge nurses’ assignments are based on “informed judgments” about the patients and staff.  For example, there was testimony that charge nurses take other nurses’ individual expertise into account, such as assigning a nurse who is particularly proficient in administering dialysis to a kidney patient.  In addition, other testimony shows that in making patient care assignments, the charge nurses look to whether the available staff has particular skill or training in dealing with certain kinds of patients, such as chemotherapy, orthopedic, or pediatric patients.  There was further testimony that the charge nurse tries to assign the same patients to the same staff if possible, to ensure continuity of care and familiarity with particular patient needs.

The Employer demonstrated that the charge nurses exercise discretion in deciding how to allocate the resources available for the shift.  For example, there was testimony that if a charge nurse assigned a patient who needed a blood transfusion to an RN, the charge nurse would not assign that RN to any other seriously ill patients or a newly admitted patient, because of the close monitoring required of a patient receiving blood.  The record also shows that in the behavioral health unit, the charge nurses had to make decisions about how to allocate the differently licensed staff.  For example, the charges nurses in the behavioral health unit had to assess whether an RN should be assigned to a psychiatric patient who also had medical problems, as opposed to assigning a mental health worker.  In addition, the witnesses testified that charge nurses had to determine for themselves whether to take a patient load and how many patients to take.

While in the past the Board has found that mere equalization of workloads does not require the exercise of independent judgment, here the Employer’s evidence shows that the charge nurses make assignments that are both tailored to patient conditions and needs and particular nursing skill sets, and a fair distribution based upon as assessment of the probable amount of nursing time each assigned patient will require on a given shift.  Equalizing workloads requires only that the putative supervisor be able to assess the quantity of work to be assigned.  Here, the charge nurses assess the quantity of work to be assigned, the relative difficulty of the work involved, and the competence of the staff available to do the work.  Thus, the charge nurse can decide that a particular task is very difficult for a given nurse to perform, and that fact must be taken into account when deciding whether to assign that nurse to other work.  Thus, the charge nurses assign each member of the nursing staff the number and type of patients that each staff member is capable of handling during the shift.  In this context, contrary to the dissent’s assertion, the process of equalizing work loads at the hospital involves independent judgment.  Witnesses Theisen, Carney, Caines, and Makaelian testified that the charge nurse considers a variety of factors in making a particular assignment and must use his or her own independent judgment in weighing those factors.  Their testimony was corroborated by the Petitioner witness Coffee’s testimony showing that a balancing of several factors occur and no one factor dictates the staff selections made by the charge nurse.

The Employer also has a written policy for assigning nursing personnel to deliver care to patients.  The policy statement provides that the charge nurses, in making assignments, should take into account, i.e., “the ability of the patient to do self care, degree of illness, complexity of nursing skills required, and the competency and qualification of the staff.”  While this statement guides the charge nurses’ decision-making process, it is not so detailed as to eliminate a significant discretionary component involved in matching nursing personnel to patients.  First, the policy statement does not prescribe a formulary approach that must be followed by the charge nurses.  Rather, the policy identifies factors that permit individual input or evaluation based on a given charge nurse’s perspective of the situation.  That is, the charge nurses draw on their own training and experience to assess such things as patient acuity, skills complexity, and staff competency, and they make certain judgments using these assessments.  The charge nurses have considerable latitude in weighing such factors in reaching a final decision on how to assign nursing personnel.  Based on this cognitive process, an assignment on that shift will be made.  Second, the policy statement does not articulate all the factors frequently considered by the charge nurses in making assignments.  For example, the charge nurses typically take into account continuity of care, even though that factor is not specified in the Employer’s written policy statement on assignments.  Thus, the Employer has shown that, despite the existence of the policy statement, the charge nurses still must exercise a substantial degree of discretion in making assignments.  Phrased differently, the Employer has shown that charge nurses exercise a degree of discretion sufficient to constitute independent judgment, as that term is used in Section 2(11).  In our view, where the charge nurse makes an assignment based upon the skill, experience, and temperament of other nursing personnel and on the acuity of the patients, that charge nurse has exercised the requisite discretion to make the assignment a supervisory function “requir[ing] the use of independent judgment.”56

At the hearing, the parties stipulated that all the charge nurses at the hospital have the same authority.  However, we are unwilling to accept such a broad stipulation where, as here, the specific evidence is to the contrary.  The record shows that the charge nurse role in the emergency room unit is structured in such a way as not to necessitate the exercise of independent judgment.  The evidence shows that the role of the charge nurse differs in significant respects from the role of the other charge nurses.  Most significantly, the emergency room charge nurses do not take into account patient acuity or nursing skill in making patient care assignments.  Whereas the record contains evidence of situations in other units in which the charge nurses must assess individual professional or personal attributes of the nursing staff, there is no similar evidence for the charge nurses in the emergency room unit.  Instead, the charge nurses in the emergency room assign the nursing staff to geographic areas of the emergency room.  Furthermore, a charge nurse in the emergency room testified without contradiction that the staff nurses rotated assignments, without input from the charge nurse.  This evidence does not show discretion to choose between meaningful choices on the part of the charge nurses in the emergency room.

Therefore, we find that the Employer failed to demonstrate that the charge nurses in the emergency room unit exercise independent judgment in making patient care assignments.  Although making patient care assignments is a primary function of the charge nurse in the rest of the facility, the emergency room charge nurses’ primary functions are to perform a triage and to keep other units within the facility informed of possible admissions from the emergency room.   A comparison of the assignments made by charge nurses in the rest of the facility with the assignments made by the emergency department charge nurses serves to emphasize that the former perform supervisory functions with independent judgment and the latter do not.  Because, as discussed above, the exercise of independent judgment is a necessary element of establishing supervisory status, we find that the Employer has failed to prove that the charge nurses in the emergency room are supervisors, despite the parties’ stipulation.  We shall include the emergency room charge nurses in the unit.

D.  “Rotating” Charge Nurses

As with other aspects of establishing supervisory status, the burden is on the Employer who asserts supervisory status to prove regularity and substantiality, i.e., the charge nurse spends a regular and substantial portion of his/her work time performing supervisory functions.  We find that the Employer has carried its burden of proof with respect to the 12 permanent charge nurses that are assigned to the following 5 units: behavioral health, intensive care, intermediate care, medical/surgical east, and medical/surgical west.  The Employer offered uncontradicted testimony that the permanent charge nurses in those units serve in that capacity on every shift they work.  Indeed, the permanent charge nurses do not really fit the definition of a “rotating” supervisor.  They serve full-time as supervisors on a regular basis.  These RNs are Linda L. Bennett, Valerie Christensen, Kimberly Clark, Pat Conley, Elizabeth Daupan, Susan H. Dey, Vicky Lowe, Leo Moises, Suzanne Mudge, Deborah L. Murphy, Lourdes Pacot, and Liza E. Saclayan.  Accordingly, we shall exclude these individuals from the unit.

In contrast, the Employer has failed to demonstrate regularity for the “rotating” charge nurses assigned to behavioral health, intensive care, intermediate care, medical/surgical east, medical/surgical west, post-anesthesia care/recovery, and rehabilitation units. The Employer offered only superficial evidence as to the regularity with which these 112 nonpermanent or “rotating” charge nurses serve in the charge nurse role.  The record reveals that none of the units involved have an established pattern or predictable schedule for when and how often RNs take turns in working as charge nurses.57  In those units where the RNs decide among themselves who will serve as charge nurses, the record does not demonstrate any pattern for these selections.  In those units where the managers are in charge of making assignments, the managers likewise do not use any particular system or order for assigning charge nurses.

The following examples illustrate this lack of regularity.  Most RNs work one of three shifts—day, afternoon, or midnight.  In intermediate care unit, a permanent charge nurse serves in that capacity for 10 out of 14 days each 2-week pay period on the midnight shift and the other RNs rotate into the charge nurse position for the remaining 4 days.  On the day shift in intermediate care unit, the RNs rotate the charge nurse position when the assistant nurse manager, a stipulated supervisor who usually does the charge nurse duties, is not there.  In the behavioral health unit, the RNs on the day shift decide among themselves at the beginning of each shift who will be the rotating charge nurse for that day, but there is no information as to whether they follow any particular pattern in making these designations.  In medical/surgical east unit, the RNs on the day shift keep a log of who served as charge nurse to determine the rotation, and on the night shift the RNs decide among themselves who will be charge nurse for that night.  In medical/surgical west unit, the day shift nurses decide among themselves who will be charge nurse for that day.  On the afternoon shift in that same unit, two RNs generally trade shifts as charge nurse, unless they ask one of the other RNs to fill in when they want a break.  In the rehabilitation unit, the assistant clinical manager, a stipulated supervisor, chooses in no particular order who will serve as charge nurse for each shift.  Likewise, for the remaining shifts and units not mentioned above, no further evidence of a pattern or structured schedule was offered by the Employer.

In the absence of a sufficient showing of regularity for assigning the “rotating” charge nurses, we need not decide whether these RNs possess the “rotating” charge nurse duties for a “substantial” part of their work time.  Accordingly, we shall include in the unit, as non-supervisors, the 112 RNs who are not permanent charge nurses but rather irregularly rotate through the charge nurse position at the hospital.

Conclusion

In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in this decision, we have endeavored to provide clear and broadly applicable guidance for the Board’s regulated community.  Our dissenting colleagues predict that our definitions will “create a new class of workers” who are excluded from the Act but do not exercise “genuine prerogatives of management.”  We anticipate no such sea change in the law, and will continue to assess each case on its individual merits.  In deciding this case, moreover, we intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to effectuate the underlying purposes of the Act.   If our adherence to the text of and intent behind the Act should lead to consequences that some would deem undesirable, the effective remedy lies with the Congress.

In this particular case, we have concluded that Linda L. Bennett (behavioral health unit), Valerie Christensen (behavioral health unit), Kimberly Clark (behavioral health unit), Pat Conley (medical/surgical east), Elizabeth Daupan (behavioral health unit), Susan H. Dey (behavioral health unit), Vicky Lowe (intermediate care unit), Leo Moises (intensive care unit), Suzanne Mudge (medical/surgical west), Deborah L. Murphy (behavioral health unit), Lourdes Pacot (behavioral health unit), and Liza E. Saclayan (behavioral health unit) are statutory supervisors.  Accordingly, we shall remand this case to the Regional Director for further processing in accordance with this decision.

ORDER

The National Labor Relations Board orders that this proceeding be remanded to the Regional Director to open and count the ballots of all eligible voters, to prepare a tally of ballots, and to issue the appropriate certification or take other appropriate action in accord with this Decision and Order.

Dated, Washington , D.C.   September 29, 2006

 

______________________________________

Robert J. Battista,                                  Chairman

 

______________________________________

Peter C. Schaumber,                 Member

 

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Peter N. Kirsanow,                                   Member

 

(seal)            National Labor Relations Board

 

Members Liebman and Walsh, dissenting in part and concurring in part in the result.

Today’s decision threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.  Into that category may fall most professionals (among many other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the work force.1  “[M]ost professionals have some supervisory responsibilities in the sense of directing another’s work—the lawyer his secretary, the teacher his teacher’s aide, the doctor his nurses, the registered nurse her nurse’s aide, and so on.”2

If the National Labor Relations Act required this result—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way.  But that is not the case.  The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms “assign . . . other employees” and “responsibly to direct them” than the majority adopts.  The majority rejects what it calls a “results-oriented approach” in interpreting the Act.  But the reasonableness of the majority’s interpretation can surely be tested by its real-world consequences.  Congress cared about the precise scope of the Act’s definition of “supervisor,” and so should the Board.  Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the “primary responsibility for developing and applying national labor policy.”  NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990).3

I.

This case involves the interpretation of three terms incorporated in Section 2(11) of the Act, the statutory definition of a “supervisor”: (1) “assign . . . other employees;” (2) “responsibly to direct them [other employees];” and (3) “independent judgment.”4  There would seem to be no dispute that these terms are ambiguous and thus open to interpretation, as the Supreme Court has observed.5

Where statutory language is ambiguous, it is not enough to consult the dictionary. As the Supreme Court has recently explained:

 

The definition of words in isolation . . . is not necessarily controlling in statutory construction.  A word in a statute may or may not extend to the outer limits of its definitional possibilities.  Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.

 

Dolan v. U.S. Postal Service, ___ U.S. ___, 126 S.Ct. 1252, 1257 (2006).  See, e.g., NLRB v. Lion Oil Co., 352 U.S. 282, 288–289 (1957) (articulating similar principles with respect to interpretation of National Labor Relations Act).

In this case, a narrow focus on dictionary definitions of individual words in isolation leads the majority astray.6  If we read the whole statutory text, consider the context and purpose of the National Labor Relations Act, and consult authoritative legislative history, then the majority’s statutory interpretation is revealed as untenable.  Despite its claim to the contrary, the majority proceeds as if the “ordinary meaning of the words used” in Section 2(11) can dictate a choice among potential alternative interpretations.  But where the words of a statute are ambiguous, the text alone cannot tell us which interpretation is best and why.  The majority never offers a clear and carefully reasoned explanation of its choices.

Certainly, we are constrained by the decisions in Kentucky River and Health Care & Retirement, supra, where the Supreme Court rejected the Board’s prior attempts to devise an approach to supervisory issues under the Act, which focused on the statutory phrases “in the interest of the employer” (Health Care & Retirement) and “independent judgment” (Kentucky River).7  The Court’s decisions require respect for the text and structure of Section 2(11), which the Board’s interpretation may not contradict.  But the Court did not dictate the largely dictionary-driven approach taken by the majority.  Nor did it hold that the Board may not be guided by the structure of the Act as a whole, by its legislative history, or by policy concerns.8  Indeed, in the words of one academic commentator, Kentucky River

 

has reopened, rather than settled, the issue of where and how to draw the line between “employees” and “supervisors”. . . .  At the least, it will entail a change in the Board’s analytical methodology. . . .

 

Weiss , Kentucky River at the Intersection, supra, at 395.

As will become clear, the majority’s interpretations of “assign . . . other employees” and “responsibly to direct” are flawed purely with reference to the text and structure of the statute.  Those interpretations violate the syntax of Section 2(11), as well as the canons of statutory construction.

The majority fails, as well, to take account of the Act’s explicit recognition that professionals, and certain persons who perform work under the supervision of professionals, may be statutory employees9—a factor that surely weighs against a broad interpretation of supervisory functions as defined in the statute, given the general oversight that professionals typically exercise over less-skilled employees.10

In turn, the majority gives little, if any, weight to the context and purpose of the Act’s definition of a supervisor, as reflected in the legislative history of the Taft-Hartley Act, which overruled the Supreme Court’s decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), and added Section 2(11) to the statute.11  The definitive report of the Senate Committee on Labor and Public Welfare explained that: