National Labor Relations Board v. Health Care & Retirement Corp. of America
National Labor Relations Board v. Health Care & Retirement Corp. of America
Opinion of the Court
delivered the opinion of the Court.
The National Labor Relations Act (Act) affords employees the rights to organize and to engage in collective bargaining free from employer interference. The Act does not grant
I
Congress enacted the National Labor Relations Act in 1935. Act of July 5,1935, ch. 372,49 Stat. 449. In the early years of its operation, the Act did not exempt supervisory employees from its coverage; as a result, supervisory employees could organize as part of bargaining units and negotiate with the employer. Employers complained that this produced an imbalance between labor and management, but in 1947 this Court refused to carve out a supervisory employee exception from the Act’s broad coverage. The Court stated that “it is for Congress, not for us, to create exceptions or qualifications at odds with [the Act’s] plain terms.” Packard Motor Car Co. v. NLRB, 330 U. S. 485, 490 (1947). Later that year, Congress did just that, amending the statute so that the term “ ‘employee’ . . . shall not include . . . any individual employed as a supervisor.” 61 Stat. 137-138, codified at 29 U. S. C. § 152(3). Congress defined a supervisor as:
“[A]ny 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.” 61 Stat. 138, codified at 29 U. S. C. § 152(11).
As the Board has stated, the statute requires the resolution of three questions; and each must be answered in
In cases involving nurses, the Board admits that it has interpreted the statutory phrase in a unique manner. Tr. of Oral Arg. 52 (Board: “[t]he Board has not applied a theory that’s phrased in the same terms to other categories of professionals”). The Board has held that “a nurse’s direction of less-skilled employees, in the exercise of professional judgment incidental to the treatment of patients, is not authority exercised ‘in the interest of the employer.’” Pet. for <pert. 15. As stated in reviewing its position on this issue in its recent decision in Northcrest Nursing Home, supra, at 491-492, the Board believes that its special interpretation of “in the interest of the employer” in cases involving nurses is necessary because professional employees (including registered nurses) are not excluded from coverage under the Act. See 29 U. S. C. § 152(12). Respondent counters that “[tjhere is simply no basis in the language of the statute to conclude that direction given to aides in the interest of nursing home residents, pursuant to professional norms, is not ‘in the interest of the employer.’ ” Brief for Respondent 30.
In this case, the Board’s General Counsel issued a complaint alleging that respondent, the owner and operator of the Heartland Nursing Home in Urbana, Ohio, had committed unfair labor practices in disciplining four licensed practical nurses. At Heartland, the Director of Nursing has overall responsibility for the nursing department. There is also an Assistant Director of Nursing, 9 to 11 staff nurses
The United States Court of Appeals for the Sixth Circuit reversed. 987 F. 2d 1256 (1993). The Court of Appeals had decided in earlier cases that the Board’s test for determining the supervisory status of nurses was inconsistent with the statute. See Beverly California Corp. v. NLRB, 970 F. 2d 1548 (1992); NLRB v. Beacon Light Christian Nursing Home, 825 F. 2d 1076 (1987). In Beverly, for example, the court had stated that “the notion that direction given to subordinate personnel to ensure that the employer’s nursing home customers receive ‘quality care’ somehow fails to qualify as direction given ‘in the interest of the employer’ makes very little sense to us.” 970 F. 2d, at 1552. Addressing the instant case, the court followed Beverly and again held the
We granted certiorari, 510 U. S. 810 (1993), to resolve the conflict in the Courts of Appeals over the validity of the Board’s rule. See, e. g., Waverly-Cedar Falls Health Care Center, Inc. v. NLRB, 933 F. 2d 626 (CA8 1991); NLRB v. Res-Care, Inc., 705 F. 2d 1461 (CA7 1983); Misericordia Hospital Medical Center v. NLRB, 623 F. 2d 808 (CA2 1980).
II
We must decide whether the Board’s test for determining if nurses are supervisors is rational and consistent with the Act. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987). We agree with the Court of Appeals that it is not.
A
The Board’s interpretation, that a nurse’s supervisory activity is not exercised in the interest of the employer if it is incidental to the treatment of patients, is similar to an approach the Board took, and we rejected, in NLRB v. Yeshiva Univ., 444 U. S. 672 (1980). There, we had to determine whether faculty members at Yeshiva were “managerial employees.” Managerial employees are those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.” NLRB v. Bell Aerospace Co., 416 U. S. 267, 288 (1974) (internal quotation marks omitted). Like supervisory employees, manage
“In arguing that a faculty member exercising independent judgment acts primarily in his own interest and therefore does not represent the interest of his employer, the Board assumes that the professional interests of the faculty and the interests of the institution are distinct, separable entities with which a faculty member could not simultaneously be aligned. The Court of Appeals found no justification for this distinction, and we perceive none. In fact, the faculty’s professional interests — as applied to governance at a university like Yeshiva — cannot be separated from those of the institution.
“... The ‘business’ of a university is education.” Id., at 688.
The Board’s reasoning fares no better here than it did in Yeshiva. As in Yeshiva, the Board has created a false dichotomy — in this case, a dichotomy between acts taken in connection with patient care and acts taken in the interest of the employer. That dichotomy makes no sense. Patient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer’s customers, is in the interest of the employer. See Beverly California, supra, at 1553. We thus see no basis for the Board’s blanket assertion that supervisory au
Our conclusion is supported by the case that gave impetus to the statutory provision now before us. In Packard Motor, we considered the phrase “in the interest of an employer” contained in the definition of “employer” in the original 1935 Act. We stated that “[e]very employee, from the very fact of employment in the master’s business, is required to act in his interest.” 330 U. S., at 488. We rejected the argument of the dissenters who, like the Board in this case, advanced the proposition that the phrase covered only “those who acted for management... in formulating [and] executing its labor policies.” Id., at 496 (Douglas, J., dissenting); cf. Reply Brief for Petitioner 4 (filed July 23, 1993) (nurses are supervisors when, “in addition to performing their professional duties and responsibilities, they also possess the authority to affect the job status or pay of employees working under them”). Consistent with the ordinary meaning of the phrase, the Court in Packard Motor determined that acts within the scope of employment or on the authorized business of the employer are “in the interest of the employer.” 330 U. S., at 488-489. There is no indication that Congress intended any different meaning when it included the phrase in the statutory definition of supervisor later in 1947. To be sure, Congress altered the result of Packard Motor, but it did not change the meaning of the phrase “in the interest of the employer” when doing so. And we of course have rejected the argument that a statute altering the result reached by a judicial decision necessarily changes the meaning of the language interpreted in that decision. See Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 168 (1989).
Not only is the Board’s test inconsistent with Yeshiva, Packard Motor, and the ordinary meaning of the phrase “in the interest of the employer,” it also renders portions of the statutory definition in §2(11) meaningless. Under §2(11),
The Board defends its test by arguing that phrases in § 2(11) such as “independent judgment” and “responsibly to direct” are ambiguous, so the Board needs to be given ample room to apply them to different categories of employees. That is no doubt true, but it is irrelevant in this particular case because interpretation of those phrases is not the underpinning of the Board’s test. The Board instead has placed exclusive reliance on the “in the interest of the employer” language in §2(11). With respect to that particular phrase, we find no ambiguity supporting the Board’s position. It should go without saying, moreover, that ambiguity in one portion of a statute does not give the Board license to distort other provisions of the statute. Yet that is what the Board seeks us to sanction in this case.
The interpretation of the “in the interest of the employer” language mandated by our precedents and by the ordinary meaning of the phrase does not render the phrase meaningless in the statutory definition. The language ensures, for example, that union stewards who adjust grievances are not considered supervisory employees and deprived of the Act’s protections. But the language cannot support the Board’s
B
Because the Board’s test is inconsistent with both the statutory language and this Court’s precedents, the Board seeks to shift ground, putting forth a series of nonstatutory arguments. None of them persuades us that we can ignore the statutory language and our case law.
The Board first contends that we should defer to its test because, according to the Board, granting organizational rights to nurses whose supervisory authority concerns patient care does not threaten the conflicting loyalties that the supervisor exception was designed to avoid. Brief for Petitioner 25. We rejected the same argument in Yeshiva where the Board contended that there was “no danger of divided loyalty and no need for the managerial exclusion” for the Yeshiva faculty members. 444 U. S., at 684. And we must reject that reasoning again here. The Act is to be enforced according to its own terms, not by creating legal categories inconsistent with its meaning, as the Board has done in nurse cases. Whether the Board proceeds through adjudication or rulemaking, the statute must control the Board’s decision, not the other way around. See Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790, 811 (1974); cf. Packard Motor, supra, at 493 (rejecting resort to policy and legislative history in interpreting meaning of the phrase “in the interest of the employer”). Even on the assumption, moreover, that the statute permits consideration of the potential for divided loyalties so that a unique interpretation is permitted in the health care field, we do not share the
The Board also argues that “[t]he statutory criterion of having authority ‘in the interest of the employer’ . . . must not be read so broadly that it overrides Congress’s intention to accord the protections of the Act to professional employees.” Brief for Petitioner 26; see 29 U. S. C. § 152(12). The Act does not distinguish professional employees from other employees for purposes of the definition of supervisor in § 2(11). The supervisor exclusion applies to “any individual” meeting the statutory requirements, not to “any nonprofessional employee.” In addition, the Board relied on the same argument in Yeshiva, but to no avail. The Board argued that “the managerial exclusion cannot be applied in a straightforward fashion to professional employees because those employees often appear to be exercising managerial authority when they are merely performing routine job duties.” 444 U. S., at 683-684. Holding to the contrary, we said that the Board could not support a statutory distinction between the university’s interest and the managerial interest being exercised on its behalf. There is no reason for a different result here. To be sure, as recognized in Yeshiva, there may be “some tension between the Act’s exclusion of [supervisory and] managerial employees and its inclusion of professionals,” but we find no authority for “suggesting that that tension can be resolved” by distorting the statutory language in the manner proposed by the Board. Id., at 686.
Finally, as a reason for us to defer to its conclusion, the Board cites legislative history of the 1974 amendments to other sections of the Act. Those amendments did not alter
Ill
An examination of the professional’s duties (or in this case the duties of the four nonprofessional nurses) to determine whether 1 or more of the 12 listed activities is performed in a manner that makes the employee a supervisor is, of course, part of the Board’s routine and proper adjudicative function.
To be sure, in applying §2(11) in other industries, the Board on occasion reaches results reflecting a distinction between authority arising from professional knowledge and authority encompassing front-line management prerogatives. It is important to emphasize, however, that in almost all of those cases (unlike in cases involving nurses) the Board’s decisions did not result from manipulation of the statutory phrase “in the interest of the employer,” but instead from a finding that the employee in question had not met the other requirements for supervisory status under the Act, such as the requirement that the employee exercise one of the listed activities in a nonroutine manner. See supra, at 573 (listing other requirements for supervisory status). That may explain why the Board did not cite in its submissions to this Court a single case outside the health care field approving the interpretation of “in the interest of the employer” the Board uses in nurse cases. That the Board sometimes finds a professional employee not to be a supervisor when applying other elements of the statutory definition of §2(11) cannot be shoehorned into the conclusion that the Board can rely on its strained interpretation of the phrase “in the interest of the employer” in all nurse cases. If we accepted the Board’s position in this case, moreover, nothing would prevent the Board from applying this interpretation of “in the interest of the employer” to all professional employees.
We note further that our decision casts no doubt on Board or court decisions interpreting parts of §2(11) other than the specific phrase “in the interest of the employer.” Because
In sum, the Board’s test for determining the supervisory status of nurses is inconsistent with the statute and our precedents. The Board did not petition this Court to uphold its order in this case under any other theory. See Brief for Respondent 21, n. 25. If the case presented the question whether these nurses were supervisors under the proper test, we would have given a lengthy exposition and analysis of the facts in the record. But as we have indicated, the Board made and defended its decision by relying on the particular test it has applied to nurses. Our conclusion that the Court of Appeals was correct to find the Board’s test inconsistent with the statute therefore suffices to resolve the case. The judgment of the Court of Appeals is
Affirmed.
Dissenting Opinion
with whom
The National Labor Relations Act, 29 U. S. C. § 151 et seq., guarantees organizational, representational, and bargaining rights to “employees,” but expressly excludes “supervisors” from that protected class. See §§ 157,152(3). Section 2(11) of the Act defines the term “supervisor” by, first, enumerating 12 supervisory actions (including, for example, hiring, firing, disciplining, assigning, and “responsibly” directing) and, further, prescribing that “any individual” who has “authority, in the interest of the employer,” to perform or “effectively to recommend” any of these actions is a supervisor, provided that the exercise of such authority requires “independent judgment” rather than “merely routine or clerical” action. § 152(11).
The categories “supervisor” and “professional” necessarily overlap. Individuals within the overlap zone — those who are both “supervisor” and “professional” — are excluded from the Act’s coverage. For that reason, the scope accorded the Act’s term “supervisor” determines the extent to which professionals are covered. If the term “supervisor” is construed broadly, to reach everyone with any authority to use “independent judgment” to assign and “responsibly ... direct” the work of other employees, then most professionals would be supervisors, for most have some authority to assign and direct others’ work. If the term “supervisor” is understood that broadly, however, Congress’ inclusion of professionals within the Act’s protections would effectively be nullified.
The separation of “supervisors,” excluded from the Act’s compass, from “professionals,” sheltered by the Act, is a task Congress committed to the National Labor Relations Board (NLRB or Board) in the first instance. The Board’s attempt
The controversy before the Court involves the employment status of certain licensed practical nurses at Heartland Nursing Home in Urbana, Ohio. Unlike registered nurses, who are professional employees, licensed practical nurses are considered “technical” employees. The Board, however, applies the same test of supervisory status to licensed practical nurses as it does to registered nurses where, as in this case, the practical nurses have the same duties as registered nurses. See 306 N. L. R. B. 68, 69, n. 5 (1992) (duties of staff nurses at Heartland, the evidence showed, “were virtually the same whether the nurses were [licensed practical nurses] or [registered nurses]”); Ohio Masonic Home, Inc., 295 N. L. R. B. 390, 394-395, and n. 1 (1989); cf. NLRB v. Res-Care, Inc., 705 F. 2d 1461,1466 (CA7 1983) (licensed practical nurses “are, if not full-fledged professionals, at least sub-professionals”).
Through case-by-case adjudication, the Board has sought to distinguish individuals exercising the level of control that truly places them in the ranks of management, from highly skilled employees, whether professional or technical, who perform, incidentally to their skilled work, a limited supervisory role. I am persuaded that the Board’s approach is rational and consistent with the Act. I would therefore uphold the administrative determination, affirmed by the Board, that Heartland’s practical nurses are protected employees.
I
As originally enacted in 1935, the National Labor Rela- ■ tions Act (Act), 29 U. S. C. § 151 et seq., did not expressly exclude supervisors from the class of “employees” entitled to the Act’s protections. See §§ 7, 2(3), 49 Stat. 452, 450. The Board decided in Packard Motor Co., 61 N. L. R. B. 4 (1945), that in the absence of an express exclusion, supervisors must be held within the Act’s coverage. This Court agreed,
Congress responded by excluding supervisors in the Labor-Management Relations Act, 1947.
“[T]he committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusion [within the protections of the Act]. It has therefore distinguished between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make*588 effective recommendations with respect to such action.” Senate Report, at 4, Legislative History 410.
The purpose of §2(ll)’s definition of “supervisor,” then, was to limit the term’s scope to “the front line of management,” the “foremen” who owed management “undivided loyalty,” id., at 5, Legislative History 411, as distinguished from workers with “minor supervisory duties.”
At the very time that Congress excluded supervisors from the Act’s protection, it added a definition of “professional employees.” See 29 U. S. C. § 152(12).
Nevertheless, because most professionals supervise to some extent, the Act’s inclusion of professionals is in tension with its exclusion of supervisors. The Act defines a supervisor as “any individual” with authority to use “independent judgment” “to ... assign ... other employees, or responsibly
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A
The NLRB has recognized and endeavored to cope with the tension between the Act’s exclusion of supervisors and its inclusion of professional employees. See, e. g., Northcrest Nursing Home, 313 N. L. R. B. 491 (1993). To harmonize the two prescriptions, the Board has properly focused on the policies that motivated Congress to exclude supervisors. Accounting for the exclusion of supervisors, the Act’s drafters emphasized that employers must have the “undivided loyalty” of those persons, “traditionally regarded as part of management,” on whom they have bestowed “such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action.” See Senate Report, at 3-4, Legislative History 409-410 (quoted in Northcrest Nursing Home, 313 N. L. R. B., at 491. Accordingly, the NLRB classifies as supervisors individuals who use independent judgment in the exercise of managerial or disciplinary authority over other employees. Id., at 493-494. But because professional employees often are not in management’s “front line,” the “undi
The NLRB has essayed this exposition of its inquiry:
“In determining the existence of supervisory status, the Board must first determine whether the individual possesses any of the 12 indicia of . supervisory authority and, if so, whether the exercise of that authority entails ‘independent judgment’ or is ‘merely routine.’ If the individual independently exercises supervisory authority, the Board must then determine if that authority is exercised ‘in the interest of the employer.’ ” Id., at 493.
As applied to the health-care field, the Board has reasoned that to fit the formulation “in the interest of the employer,” the nurse’s superintendence of others must reflect key managerial authority, and not simply control attributable to the nurse’s “professional or technical status,” direction incidental to “sound patient care.” Id., at 493, 496. Cf. Children’s Habilitation Center, Inc. v. NLRB, 887 F. 2d 130, 134 (CA7 1989) (Posner, J.) (authority does not fit within the “interest of the employer” category if it is “exercised in accordance with professional rather than business norms,” i. e., in accordance with “professional standards rather than . . . the company’s profit-maximizing objectives”).
B
The NLRB’s “patient care analysis” is not a rudderless rule for nurses, but an application of the approach the Board has pursued in other contexts. The Board has employed the distinction between authority arising from professional knowledge, on one hand, and authority en
“The Board has recognized that employees whose decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty. Only if an employee’s activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management. We think these decisions accurately capture the intent of Congress . . . .” Id., at 690 (footnote omitted).
Notably, in determining whether, in a concrete case, nurses are supervisors within the meaning of the Act, the Board has drawn particularly upon its decisions in “leadperson” controversies. “Leadpersons” include skilled employees who do not qualify as statutory “professionals,” but, like professional employees, have some authority to assign or direct other workers. In leadperson cases, as in cases involving professionals, the NLRB has distinguished between authority that derives from superior skill or experience, and authority that “flows from management and tends to identify or associate a worker with management.” South-
Ill
Following the pattern revealed in NLRB decisions, the Administrative Law Judge (AU), affirmed by the Board, determined that the four licensed practical nurses in this case were not supervisors. The ALJ closely examined the organization and operation of nursing care at Heartland and found the nurses’ direction of aides “closely akin to the kind of directing done by leadmen or straw bosses, persons . . . Congress plainly considered to be ‘employees.’” 306 N. L. R. B., at 70. Backing up this finding, the ALJ pointed out that, although the nurses “g[a]ve orders (of certain kinds) to the aides, and the aides follow[ed] those orders,” id., at 72, the nurses “spen[t] only a small fraction of their time exercising that authority,” id., at 69. Essentially, the nurses labored “to ensure that the needs of the residents [were] met,” and to that end, they “check[ed] for changes in the health of the residents, administer[ed] medicine,.. . receive[d] status reports from the nurses they relieve[d], and g[a]ve [such] reports to aides coming on duty and to the nurses’ reliefs,” pinch-hit for aides in “bathing, feeding or dressing residents,” and “handle[d] incoming telephone calls from physicians and from relatives of residents who want[ed] information about a resident’s condition.” Ibid.
The ALJ noted, too, that “when setting up the aide-resident assignments,” the nurses “followed old patterns”; indeed, “the nurses routinely let the aides decide among
Throughout the hearing, the ALJ reported, he gained “the impression that Heartland’s administrator believed that the nurses’ views about anything other than hands-on care of the residents were not worth considering.” Ibid. “[T]he actions of Heartland’s administrator,” the ALJ concluded, repeatedly and unmistakably demonstrated that “to [Heartland’s] management, Heartland’s nurses were just hired hands.” Ibid. I see no tenable basis for rejecting the ALJ’s ultimate ruling that the nurses’ jobs did not entail genuine, front-line supervisory status of the kind that would exclude them from the Act’s protection.
IV
A
The phrase ultimately limiting the §2(11) classification “supervisor” is, as the Court recognizes, “in the interest of the employer.” To give that phrase meaning as a discrete and potent limitation, the Board has construed it, in diverse contexts, to convey more than the obligation all employees have to further the employer’s business interests, indeed more than the authority to assign and direct other employees pursuant to relevant professional standards. See, e.g., Northcrest Nursing Home, 313 N. L. R. B. 491 (1993) (nurses); Youth Guidance Center, 263 N. L. R. B. 1330, 1335, and n. 23 (1982) (social workers); Sav-On Drugs, Inc., 243 N. L. R. B. 859,862 (1979) (pharmacists); Neighborhood Legal Services, Inc., 236 N. L. R. B. 1269, 1273, and n. 9 (1978) (attorneys).
Maintaining professional standards of course serves the interest of an enterprise, and the NLRB is hardly blind to that obvious point. See Northcrest Nursing Home, 313 N. L. R. B., at 494 (interest of employer and employees not likely to diverge on charge nurse decisions concerning methods of attending to patients’ needs). But “the interest of the employer” may well tug against that of employees, on matters such as “hiring, firing, discharging, and fixing pay”; “in the interest of the employer,” persons with authority regarding “things of that sort” are properly ranked “supervisor.”
B
In rejecting the Board’s approach, the Court relies heavily on NLRB v. Yeshiva Univ., 444 U. S. 672 (1980). The heavy weight placed on Yeshiva is puzzling, for the Court in that case noted with approval the Board’s decisions differentiating professional team leaders (or “project captains”) from “supervisors.” Such leaders are “employees,” not “supervisors,” the Board held, and the Court agreed, “despite [their] substantial planning responsibility and authority to direct and evaluate team members.” Id., at 690, n. 30. “In the health-care context,” specifically, the Court in Yeshiva observed, “the Board asks in each case whether the decisions alleged to be managerial or supervisory are ‘incidental to’ or ‘in addition to’ the treatment of patients.” That approach, the Court said in Yeshiva, “accurately capture[d] the intent of Congress.” Id., at 690.
V
The Court’s opinion has implications far beyond the nurses involved in this case. If any person who may use independent judgment to assign tasks to others or direct their work is a supervisor, then few professionals employed by organizations subject to the Act will receive its protections.
See § 152(12) (defining “professional employee”); § 159(b) (limiting National Labor Relations Board’s discretion to place professional and nonprofessional employees in the same bargaining unit).
The definition of “professional employee” further includes persons who have completed the required course of study and are “performing related work under the supervision of a professional person” in order finally to qualify as a professional. § 152(12)(b).
Section 2(11) of the Act defines a “supervisor” as “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). Section 2(3) provides, in part, that “[t]he term 'employee’ . . . shall not include ... any individual employed as a supervisor.” § 152(3).
The House and Senate bills defined the term “supervisor” differently; the Conference Committee adopted the Senate version. See H. Conf. Rep. No. 510,80th Cong., 1st Sess., 35 (1947), reprinted in 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, p. 539 (1948) (hereinafter Legislative History).
“The term ‘professional employee’ means—
“(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or
“(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).”
See The Door, 297 N. L. R. B. 601, 602, n. 7 (1990) (“routine direction of employees based on a higher level of skill or experience is not evidence of supervisory status”).
See Detroit College of Business, 296 N. L. R. B. 318,320 (1989) (professional employees “ ‘[frequently require the ancillary services of nonprofessional employees in order to carry out their professional, not supervisory, responsibilities,’” but “it was not Congress’ intention to exclude them from the Act ‘by the rote application of the statute without any reference to its purpose or the individual’s place on the labor-management spectrum’ ”), quoting New York Univ., 221 N. L. R. B. 1148, 1166 (1975).
See Sav-On Drugs, Inc., 243 N. L. R. B. 859, 862 (1979) (“pharmacy managers do exercise discretion and judgment” in assigning and directing clerks, but “such exercise ... falls clearly within the ambit of their professional responsibilities, and does not constitute the exercise of supervisory authority in the interest of the Employer”).
See Marymount College of Virginia, 280 N. L. R. B. 486, 489 (1986) (rejecting classification of catalog librarian as a statutory supervisor, although librarian’s authority over technician’s work included “encouraging productivity, reviewing work for typographical errors, and providing answers to the technician’s questions based on the catalog librarian’s professional knowledge”).
See Youth Guidance Center, 263 N. L. R. B. 1330,1335, and n. 23 (1982) (“senior supervising social workers” and “supervising social workers” not statutory supervisors; “[t]he Board has carefiilly and consistently avoided applying the statutory definition of ‘supervisor’ to professionals who give direction to other employees in the exercise of professional judgment which is incidental to the professional’s treatment of patients and thus is not the exercise of supervisory authority in the interest of the employer”).
See Neighborhood Legal Services, Inc., 236 N. L. R. B. 1269, 1273 (1978): “[T]o the extent that the [attorneys in question] train, assign, or direct work of legal assistants and paralegals for whom they are professionally responsible, we do not find the exercise of such authority to confer supervisory status within the meaning of Section 2(11) of the Act, but rather to be an incident of their professional responsibilities as attorneys and thereby as officers of the court.” The Board continued: “[W]e are careful to avoid applying the definition of‘supervisor’ to professionals who direct other employees in the exercise of their professional judgment,
See Golden-West Broadcasters-KTLA, 216 N. L. R. B. 760, 762, n. 4 (1974): “[A]n employee with special expertise or training who directs or instructs another in the proper performance of his work for which the former is professionally responsible is not thereby rendered a supervisor. ... This is so even when the more senior or more expert employee exercises some independent discretion where, as here, such discretion is based upon special competence or upon specific articulated employer policies.”
The Board, as the decisions cited in text demonstrate, takes no unique approach in cases involving nurses. See also cases cited, supra, at 591-592, nn. 6-7, 9, 12. Nor, contrary to the Court’s report, see ante, at 574, did counsel for the NLRB admit to deviant interpretation of the phrase,
See 92 Cong. Rec. 5930 (1946), containing the statement of Representative Case on a forerunner of present §2(11), included as part of the Case bill, passed by Congress, but vetoed by President Truman in 1946. Representative Case stated of the bill’s provision, nearly identical to the present §2(11): “ ‘In the interest of the employer’ — that is the key phrase to keep in mind.... All that the section on supervisory employees does is to say that if ‘in the interest of the employer,’ [a] person has a primary responsibility in hiring, firing, discharging, and fixing pay, and things of that sort, then at the bargaining table he shall not sit on the side of the employee, but shall sit on the side of the employer.... No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.”
The Court does maintain, however, that Congress meant to embrace our statement in Packard Motor Car Co. v. NLRB, 330 U. S. 485 (1947), that “[e]very employee, from the very fact of employment in the master’s business, is required to act in his interest.” Id., at 488; see ante, at 578. But Congress’ purpose, in enacting §2(11), was to overturn the Court’s holding in Packard Motor Car. Thus it is more likely that Congress was taken by Justice Douglas’ dissenting view that “acting in the interest of the employer” fits employees who act for management “not only in formulating but also in executing its labor policies.” 330 U. S., at 496. Moreover, Congress had included the phrase, “in the interest of the employer,” the year before Packard Motor Car, in a predecessor bill to the Labor-Management Relations Act that defined the term “supervisor” almost identically. See n. 14, supra. Finally, the Court acknowledged in Packard Motor Car that the phrase “interest of the employer" may also be read more narrowly, in contradistinction to employees’ interests in improving their compensation and working conditions. 330 U. S., at 489, 490. Packard Motor Car, then, does not support the conclusion that the words, “interest of the employer,” have a plain meaning inconsistent with the interpretation the Board has given them in supervisor cases.
The Court suggests that the Board has “rea[d] the responsible direction portion of §2(11) out of the statute in nurse cases.” Ante, at 579 (referring to the words “responsibly to direct” in § 2(ll)’s list of supervisory activities). The author of the amendment that inserted those words
As the Board repeatedly warned in its presentations to this Court: “If all it took to be a statutory supervisor were a showing that an employee gives discretionary direction to an aide, even though done pursuant to the customary norms of the profession, the coverage of professionals would be a virtual nullity.” Brief for Petitioner 27; see also id., at 12, Reply Brief for Petitioner 7-8 (filed Jan. 5, 1994).
Reference
- Full Case Name
- National Labor Relations Board v. Health Care & Retirement Corporation of America
- Cited By
- 165 cases
- Status
- Published