U.S. Supreme Court Holds That RN’s Are Supervisors under the NLRA

Date: October 18, 2001

Kentucky River Community Care, Inc. (KRCC), an operator of a mental health care facility, refused to comply with an order to bargain with a labor union, arguing that the bargaining unit was not properly certified because it was made up of nurses who were “supervisors.” KRCC contended that the National Labor Relations Board (NLRB) was incorrect in not exempting the nurses from the appropriate bargaining unit. It also argued that KRCC should not have been allocated the burden of proving the supervisory status of the nurses.

The U.S. Supreme Court held that the NLRB erred in its interpretation of “independent judgment” when it determined the nurses were not supervisors. The Supreme Court concluded the Board’s test for determining supervisory status of the nurses was inconsistent with the Act and that the NLRB had applied a legal standard that it had not adopted.The Court also held the Board has the discretion to allocate the burden of proof on the party challenging the supervisory status of the employee.

KRCC operated the Caney Creek Development Complex. In 1997, the Kentucky State District Council of the Carpenters Union (Union) petitioned the NLRB to represent a single unit of all 110 potentially eligible employees at Caney Creek. At the time, Caney Creek had approximately 110 professional and nonprofessional employees, as well as a dozen managerial or supervisory employees. At the representation hearing before the NLRB, the employer objected to the inclusion of six registered nurses in the unit, arguing that they were supervisors under the National Labor Relations Act (NLRA).

The burden of proving the supervisory status of the nurses was placed on KRCC. In carrying out its burden, KRCC pointed to §2(11) of the NLRA, which sets out a three part test for determining supervisory status. Under the Act, employees are statutory supervisory employees if: (1) they hold the authority to engage in any one of the 12 listed supervisory functions, (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.”

KRCC presented evidence to show the nurses used independent judgment in the course of their work, which the NLRB rejected. The Board based its rejection on the ground that employees do not use “independent judgment’ when they exercise “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.” KRCC countered this argument, stating that the NLRB Regional Director was wrong in its interpretation of §2(11) of the statute, as well as in its allocation of the burden of proof of KRCC.

The Board refused KRCC’s request for review, an election was held and won by the union, and KRCC refused to bargain. The Board’s General Counsel filed an unfair labor practice complaint which resulted in a decision against KRCC, and KRCC, in turn, filed for a review of the Board’s decision by the U.S. Court of Appeals for the Sixth Circuit.

The Sixth Circuit addressed the issue of whether an employee’s judgment is not “independent judgment” to the extent that it is formed by professional or technical training or experience. The NLRB argued that there are supervisory functions that are performed without exercising any degree of “independent judgment.” The Board argued that even the judgment of employees who are permitted by their employers to exercise a sufficient degree of discretion is not “independent judgment.” The Board asserted that when nurses use “ordinary professional or technical judgment,” they do not also use “independent judgment.” The rationale was that nurses have the “ability to direct patient care by virtue of their training and expertise, not because of their connection with “management.’”

The Sixth Circuit rejected the Board’s interpretation of “independent judgment.” The appeals court found the Board erred by classifying the nurses’ job in supervising a nurse’s aide in patient care as merely routine and exempting the nurses from the statutory category of supervisors.

The Supreme Court upheld the Sixth Circuit’s decision. The Supreme Court concluded that the statutory term “independent judgment” is “ambiguous with respect to the degree of discretion required for supervisor status.” The Court agreed with the NLRB that there are many nominally supervisory functions that may be performed without exercising a “degree of judgment or discretion as would warrant a finding of supervisory status under the Act.” In those cases, the Supreme Court held the NLRB has the discretion to determine, within reason, what scope of discretion qualifies an employee as a “supervisor” under the NLRA.

However, according to the Supreme Court, under the NLRB’s interpretation, a nurse who uses independent judgment while directing other employees would not be considered a supervisor because she is using professional judgment. The Court found this interpretation to be inconsistent with the Act: “[B]y distinguishing different kinds of judgment, [this interpretation] introduces a categorical exclusion into statutory text that does not suggest its existence.” Despite the ambiguous language, the Court did not allow the NLRB to create an exception for nurses under the Act by inserting its own interpretation of “independent judgment.” The Supreme Court made it clear that any employee who uses independent judgment while directing other employees is a supervisor under §2(11) of the NLRA. It did, however, defer to the Board’s discretion in matters of allocating burden of proof.

The rule is clear: the party claiming that the employee is a supervisor bears the burden of proving supervisory status. NLRB v. Kentucky River Country Care, Inc., (2001, US) 121 S Ct 1861.