Amicus Curiae Brief — NLRB v. Health Care & Retirement Corp. of America

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No. 92-1964 | NOV 16 1993

’ NE G £84

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1993

NATIONAL LABOR RELATIONS BOARD,

e Petitioner,

HEALTH CARE & RETIREMENT CORPORATION

OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

MARSHA S. BERZON

ScoTT KRONLAND

177 Post Street, Suite 300

San Francisco, CA 94108

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

® Be. 00

" BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

ee er a I ctrsikthiitionteittinsinititnnie. ii

SUMMARY OF ARGUMENT ......000.000......ccecc eee. 1

TE scvcsvscvsssinnneninttisssiitinilsdnia cient heareeneeaess 4

1. Statutory Language and Structure 0.000.000.0000...

2. Legislative History ....... ctciamiaiitiia ial lines aia 12

3. Post-1947 Application of § 2011) oo......cccccccceeeceeeee 22

GQ, FRO IIIS cccinitsiicicctibtistinessineiiettes, 25

IT EIIIED «<acniccésinisochitatnsheenineneidiainiceht ean 29

TABLE OF AUTHORITIES

CASES Page

Aquatech, Inc., 297 NLRB 711 (1990) .................... 23

Arundel Corp., The, 53 NLRB 466 (1948) ........... 14

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 111

Ne cccttantweness 6

Austin Co., The, 77 NLRB 938 (1948) .................... 23

Beasley v. Food Fair of North Carolina, 416 U.S.

a ceudesuotoononegs 12

Beth Israel Hospital v. NLRB, 487 U.S. 483

EEE 4

Bethlehem-Sparrows Point Shipyard, Inc., 65

EEE a 15,17

Beverly Enterprises, 275 NLRB 943 (1985)...... " 27

Byron-Jackson Co., 53 NLRB 528 (1943) 000000. 14

Colonial Press, Inc., 50 NLRB 823 (1948) _..00000. 14

Doctors’ Hospital of Modesto, Inc., 188 NLRB 950

aia hicidetiaidaee 24

Douglas Aircraft Co., 50 NLRB 784 (1948) ......... 13

E.l. du Pont de Nemours & Co., 53 NLRB 473

ES 14

Electric Auto-Lite Co., 50 NLRB 1006 (1943) _.... 13

Endicott-Johnson Corp., 67 NLRB 1342 (1946)... 15,17

Food Store Employees Local 347 v. NLRB, 422

F.2d 685 (1969) —........ tS 24

George Ehlenberger and Co., 77 NLRB 701

EE 23

Godchauxr Sugars, Inc., 44 NLRB 874 (1942)... 13

If.J. Heinz Co., 77 NLRB 1108 (1948) 2.00.00... 23

Heckman Furniture Co., 50 NLRB 834 (1948)... 14

Injected Rubber Products Corp., 258 NLRB 687

ET SE 23

International Union of United Brewery v. NLRB,

298 F.2d 297 (D.C. Cir., 1961) ..... i 7,23

Lockheed Aircraft Corp., 50 NLRB 958 (1943)... 14

Marine Engineers Beneficial Ass’n v. Interlake

Steamship Co., 370 U.S. 173 (1962) ...0000000.... 23

Maryland Drydock Co., 49 NLRB 733 (1948) _...... 13

NLRB vv. Bell Aecrosnace, 416 U.S. 267 (1974)... 4,12

NLRP vv. Doctors’ Hospital of Modesto, Inc., 489

ES 24, 25

iii

TABLE OF AUTHORITIES—Continued

Page

NLRB v. Hendricks County Rural Electric Mem-

bership Corp., 454 U.S. 170 (1981) . 12

NLRP. v. Security Guard Service, Inc., supra, 384

Ss ccs 7,24

NLRB v. Southern Bleachery & Print Works, Inc.,

257 F.2d 235 (4th Cir. 1958) mana 24

NLRB v. Swift & Co., 292 F.2d 561 (1st Cir.

1961) . MASEL TRE Bes nate oe PoE NE 24

NLRB vr. Yeshiva University, 444 U.S. 672

(1980) passini

Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir.

1949) . ~

Packard Motor Car Co., 61 NLRB 4 (1945) 14

Packard Motor Car Co. v. NLRB, 330 U.S. 485

(1949) A ee Re ee a eee 16, 18

Pittsburgh Equitable Meter Co. 61 NLRB R80

(1945) SATO ERT Ye EEE Te 15, 17

Richards Chemical Works, Ine., The, 61 NLRB

14 (1945) deeetaabbanieaistidamienbtedietadinaceieieataheet 15, 17

Union Collieries Coal Co., 4 NLRB 961 (1942) 13

United States v. Menasche, 348 U.S. 528 (1955) 6

FEDERAL STATUTES

29 U.S.C. § 152(3) | . . 6

29 U.S.C.§ 152011) jeatuosssassniamnnd passim

29 U.S.C. § 152012) en. ....2,4,11

29 U.S.C. § 152(12) (a) (i) 7 _ 10

29 U.S.C. § 160(b) (1) secveccocedeeeccerere 6

LEGISLATIVE MATERIALS

H.R. Conf. Rep. No. 510 on H.R. 3020, 80th Cong.,

Ist Sess. (1947) 22

H.R. Rep. No. 1051, 93d Cong., 2d Sess. (1974) 25

H.R. Rep. 245, 80th Cong. 1st Sess. (1947) _ . 16

National Labor Relations Board, Legislative His-

tory of the Labor Management Relations Act,

(1947) ....... _..... passim

S. Rep. No. 105 on Ss. 1126, 80th Cong. ‘Ist ‘Sess.

(1947) a — 21

S. Rep. No. 766, 93d Cong. od Sess. (1974) 4, 25

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

Finkin, Matthew W., The Supervisory Status of

Professional Employees, 45 Fordham L. Rev.

I i a lee

Model Rules of Professional Conduct Rule’ 5.3

—— RETEENEESR ERNST oreo en Sane TTS CI Ieee

National Labor Relations Board, Eighth Annual

I ee

National Labor Relations Board, Tenth Annual

National Labor Relations Board, Eleventh Annual

EEE Se. ave ee

National Labor Relations Board, Twelfth Annual

I ree

National Labor Relations Board, Thirteenth An-

SE ii

Prosser, William L., Handbook of the ‘Law of

Torts (3d ed. 1964) .......... seaiaiiabeenaiaiaaiaaieees

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1964

NATIONAL LABOR RELATIONS BOARD,

7 Petitioner,

HeALTH Care & RETIREMENT CORPORATION

OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”), a federation of

84 national and international unions with a total member-

ship of approximately 14,000,000 working men and

women, files this brief amicus curiae with the consent

of the parties as provided for in the Rules of this Court.

SUMMARY OF ARGUMENT

The question in this case is whether, as the National

Labor Relations Board has consistently determined, health

professionals are not within the class of “supervisors”

delineated by § 2(11) of the National Labor Relations

Act, 29 U.S.C. § 152(11), because the health care profes-

sional’s responsibilities include giving on-site job direction

to less-skilled employees as an incident of patient care.

As this Court indicated in NLRB v. Yeshiva University,

444 U.S. 672 (1980), the Board’s decisions on this ques-

tion “accurately capture the intent of Congress.” /d.

at 690.

1. The “supervisor” definition contained in § 2(11)

is in several respects ambiguous and in others rife with

potential internal contradictions. In particular, the term

“in the interest of the employer” has no immediately ap-

parent meaning, since on one level every employee, super-

visory or otherwise, acts “in the interest of the employer”

as to work tasks generally. Similarly, since no individual

can, under the definition, be a supervisor unless he or she

performs the activities covered by the definition with au-

thority “not of a merely routine or clerical nature bu

[with] . . . the use of independent judgment”, the statutory

terms “responsibly to direct” and effectively to recommend”

(emphasis supplied) must mean something more than

simply applying judgment and discretion, although the

precise meaning of those terms is not clear from the face

of the statute. These problems of construction are exacer-

bated when § 2(11) is read in conjunction with the im-

mediately succeeding section, § 2(12), defining “profes-

sional emplovee.”

2. The legislative history of the Taft-Hartley Act.

which added both § 2(11) and § 2(12) to the NLRA.

is of substantial aid in pointing the way toward a rational

interpretation of those sections. That history shows that

Congress was legislating against a background of Board

cases holding that only “true” foremen and higher officials

are supervisors for NLRA purposes, while “leadmen”.

“strawmen”, and various other lower-level employees with

minor supervisory authority over other employees are not.

The intent in 1947 was to preserve that general distinc-

tion, an intent necessarily leaving a great deal to the

Board’s expert judgment on questions of degree in par-

ticular factual situations.

3. Following the enactment of Taft-Hartley, the Board

continued to hold that limited day-to-day direction by

higher skilled employees of lesser skilled employees, does

not necessarily make the individual in question a § 2(11)

supervisor. And, following the 1947 Congress’ lead, the

weight of the court of appeals opinions is that to be

within § 2(11) the individual in question must in some

meaningful sense share the power of management.

4. The Board, with court approval, applied this ap-

proach to the health care industry shortly before the 1974

amendments adding nonprofit hospitals to the coverage of

the NLRA—holding that direction given to other em-

ployees in the exercise of professional discretion inci-

dentally to the professionals’ care of patients does not

trigger supervisory status. As a result of those rulings

both congressional committees concluded that there was

no need to clarify the NLRA to assure that health care

professionals would continue to be classified as “employ-

ees,” not as “supervisors”.

5. In light of the legislative history of the statute, this

Court was correct in Yeshiva in approving the Board’s

construction of the ambiguous statutory terms so as to

maintain the distinction between true supervisors and in-

dividuals with minor authority to direct other employees.

ARGUMENT

Section 2(11) of the National Labor Relations Act,

29 U.S.C. § 152(11), defines the term “supervisor” for the

purposes of the Act. And, NLRA § 2(3), which delineates

the “employees” covered by the Act, excludes “any individ-

ual employed as a supervisor.” The National Labor Re-

lations Board, in applying § 2(11) to nurses and other

health care professionals, has consistently concluded that

on-site job-task direction of less-skilled employees in the

exercise of professional judgment and as an incident of

patient care, standing alone, does not make the individual

a “supervisor.” The precise question in this case is

whether this administrative interpretation of the statute

is rational and consistent with the Act, and therefore en-

titled to judicial respect and enforcement. See e.g., Beth

Israel Hospital v. NLRB, 437 U.S. 483, 501 (1978).

NLRB vy. Yeshiva University, 444 U.S. 672 (1980) all

but requires that this question be answered “yes.” The

Yeshiva Court noted that, in general, the Board holds

“professional employees” to be “supervisors” only “if an

employee's activities fall outside the scope of the duties

routinely performed by similarly situated professionals”

and, in particular, “[{i]n the health-care context the Board

asks in each case whether the decisions alleged to be. . .

supervisory are ‘incidental to’ or ‘in addition to’ the treat-

ment of patients.” /d. at 690 & n.30. The decisions so

holding, the Yeshiva Court stated, “accurately capture the

intent of Congress.” /d.’

As we now show there is no ground for believing that

the Yeshiva Court erred in this regard.” Certainly the

1 Yeshiva also noted that the Board approach here at issue is one

“Congress expressly approved in 1974. S. Rep. No, 93-766, p. 6

(1974) ...” 437 U.S. at 690 n.30.

2 The exact issue before the Court in Yeshiva involved the im-

plied “managerial employee” exception to the coverage of the NLRA

(see NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)), not the

express supervisors’ exception. The cases cited by the Board in

Yeshiva with regard to the limitations on the managerial exclusion

Statutory materials yield no basis for disapproving the

Board’s approach already once approved in Yeshiva. To

the contrary, those materials confirm that when Congress

in 1947 expressly excluded supervisors from the coverage

of the Act and expressly covered professional employees,

the Legislature did not structure the class of § 2(11)

supervisors to include all individuals with some supervi-

sory authority in the colloquial sense, but only a subgroup

thereof—viz., individuals, such as traditional industrial

foremen and higher supervisors, who are, in the words of

the Yeshiva Court, truly “aligned with management” (444

U.S. at 690) as to those matters central to the NLRA’s

scheme.

Two statutory sections are principally pertinent to the

task at hand. The first is, of course, § 2(11) itself, which

provides:

The term “supervisor” means any individual hav-

ing authority, in the interest of the employer, to

hire, transfer, suspend, lay off, recall, promote,

discharge, assign, reward, or discipline other em-

ployees, or responsibly to direct them, or to adjust

their grievances, or effectively to recommend such

action, if in connection with the foregoing the exer-

cise of such authority is not of a merely routine or

clerical nature but requires the use of independent

judgment.

The second relevant provision is the definition of “pro-

fessional employee” in § 2(12) of the Act. That section

makes clear that the NLRA covers those individuals who

do work that is “varied in character as opposed to routine

mental, manual, mechanical or physical work” and that

“involv[es] the consistent exercise of discretion and judy-

ment in its performance,” as well as individuals who have

completed their formal professional training but are work-

ing “under the supervision of a professional person to

were, however, cases concerning supervisors, and it is those cases

that the Court said “accurately capture the intent of Congress.”

qualify . . . to become a professional employee.” See also

NLRA § 10(b)(1), 29 U.S.C. §$ 160(b)(1) (providing

that professional employees shall not be included in a unit

with other employees “unless a majority of such profes-

sional employees vote for inclusion in such unit.” )

To aid in determining whether the Board’s view of the

interaction of these two provisions in the health care

context is indeed, as Yeshiva indicated, a reasonable in-

terpretation of the statute, we begin with the statutory

language and structure and then consider the pertinent

legislative materials.

1. Statutory language and structure: (a) The “super-

visor” definition contains numerous terms whose import

is not immediately apparent, either viewed in isolation or

in the context of the definitional section as a whole.

First, exercises of supervisory authority must be “in

the interest of the employer.” Literally then, § 2(11)

States that even if an individual is empowered to “hire,

transfer, suspend, lay off. recall, promote, discharge, as-

sign, reward, or discipline other employees or responsibly

to direct them”, he or she is not a supervisor unless that

power is exercised “in the interest of the employer.” To

make sense of the supervisor definition, then, there must

be some situations in which an individual who has the

requisite authority and otherwise meets the “supervisor”

definition is not a statutory supervisor because the au-

thority is nof exercise “in the interest of the employer”.

Otherwise, the phrase “in the interest of the employer”

becomes surplusage. Cf. Astoria Fed. Sav. & Loan Ass'n

v. Solimino, 111 S.Ct. 2166. 2172 (1991) (statutes

should be construed to avoid rendering superfluous any

parts thereof); United States v. Menasche, 348 U.S. 528,

538-39 (1955) (same).

To posit that a person with the enumerated statutory

supervisory powers could have the authority to exercise

those powers other than “in the interest of the employer”

appears on one level paradoxical: The critical role of the

“supervisor” definition in the statute is the exclusion of

“any individual emploved as a supervisor” (§ 2(3) (em-

phasis supplied) ) from the coverage of the statute. Thus,

the supervisors with which the statute is concerned will

ordinarily be common law emptoyees of the employer.

If the phrase “in the interest of the employer” is read

simply to mean “not in the supervisory employee’s per-

sonal interest” or “in the personal interest of some indi-

vidual or some entity other than the employer,” * it is diffi-

cult to envisage any common law employee’s actions in

his role as an employee—at least unambiguous, employ -

ment-specific actions such as hiring, transferring, or other-

wise changing the status of other employees ‘—that are

not actions “in the interest of the employer.” Indeed,

“(t]he entire work force from the president down to the

messenger boy in one sense acts in the interest of the

employer as Congress well knew.” J/nternational Union

of United Brewery v. NLRB, 298 F.2d 297, 303 (D.C.

Cir. 1961), cert. denied, 369 U.S. 843 (1962).

To avoid that paradoxical conclusion, the “in the inter-

est of the employer” qualifying term in §$2(11) must

have some meaning and some function other than simply

* Put another way, it is certainly the case that supervisors, like

other employees, sometimes abuse the authority granted by their

employer by acting in their own interest rather than that of their

employer. For example, supervisors on occasion hire individuals

known to be incompetent, because the individuals are relatives, or

discharge competent subordinates because of purely personal

grudges. But the statute is written in terms of “authority” and -

“exercise of authority”. And, employers do not, as far as we are

aware, give supervisors “authority” to act other than in the em-

ployer’s interest.

4 As to other kinds of activities, it is certainly true that individ-

uals can do something not “in the interest of the employer” even

while on work time, as the common law doctrine of respondeat

superior recognizes. See William L. Prosser, Handhook of the Law

of Torts $69 (3d ed. 1964). It is difficult to understand, however,

how someone could while employed hire or discharge or lay off

other employees not in the employer's interest in the respondeat

superior or agency sense.

to assure that the acts in question are taken in the course

of the putative supervisor’s assigned employment tasks.

Id.; see also NLRB vy. Security Guard Service, fic., 384

F.2d 143 (5th Cir. 1967).

Second, as to all of the enumerated supervisory powers,

“the exercise of such authority [must be] not of a merely

routine or clerical nature, but [such as] requires the use

of independent judgment.” Moreover, while most of the

specific powers giving rise to supervisory status—the au-

thority to “hire, transfer. suspend, lay off, recall, promote,

discharge, assign. reward, or discipline’—are stated un-

qualifiedly, two of the enumerated powers give rise to

supervisory status only under certain circumstances. Thus,

direction of other employees, standing alone, does not

give rise to supervisory status: rather, to be a supervisor,

the individual must have authority “responsibly to direct”

(emphasis supplied). Similarly. where the individual in

question cannot exercise any of the enumerated powers

directly, mere recommendation of action in any of these

enumerated areas is insuflicient to give rise to supervisor

status. Rather, an individual is 2 supervisor only if his

or her authority is to recommend “e/lectively” (emphasis

supplied) the hiring, firing, suspension, or discipline, for

example, of other employees. The interaction of these

various phrases gives rise to various problems of inter-

pretation.

Both “responsibly” and “effectively” are open to more

than one interpretation. In isolation, “responsibly”, for

example, could mean that the individual is “responsible”,

in the sense of answerable, for the directions given, and is

not merely a conduit for directions originated by others.

This interpretation. however, would not make sense in the

context of § 2/11) as a whole. As noted above. the last

phrase of the section provides. expressly and separately,

that “independent judement” must be exercised. Conse-

quently. to avoid redundancy. “responsibly” must mean

something other than exercising “independent judgment.”°

5 For this reason, one court of appeals construction of “responsibly

to direct” in §2(11)-—‘‘[t}o be responsible is to be answerable for

“Effectively”. similarly, could mean that the putative

supervisor’s decision has seme independent impact, and

is not the mere transmittal or re_ording of facts routinely

taken into account in making personnel decisions. Such

an interpretation, however. vould again create a redun-

dancy when read in conjunction with the last, “not

merely of a routine nature independent judgment” phrase.

“Effectively to recommend such action,” then, must refer

to determinative decisionmaking authority as to the kind

of personnel matters covered by § 2(11).

Further. since “effectively to recommend such action”

applies to al! the kinds of actions covered by $ 2(11),

the “supervisor” definition in terms covers both “responsi-

bly directing” other employees and “effectively recom-

mending” to other emplovees how to carry out their tasks.

Again. it must be that “responsibly” and “effectively” have

different meanings under the statute: otherwise. the statu-

tory language would be hopelessly redundant. Moreover,

one would expect Coneress to use the same word in the

same statute to convey an identical meaning: where dif-

ferent words are used. the rational inference is that differ-

ent meanings are intended. Thus, “responsibly to di-

rect” must also mean something more than giving direc-

tions that are in fact followed by other employees.

Third. while it is reasonably evident what terms such

as “hire”, “lay off”. “recall” and “promote” mean, at

least two of the enumerated authorities of supervisors—

“transfer” and “assign’—have no inherent meaning out-

side of a particular industrial context. One would think

that. like the other terms listed immediately before and

after—viz.. “hire. . . . suspend, lay off. recall, promoie,

discharge. reward, or discipline”-—“transfer” and “assign”

both refer to a change of an employee's status of some

the discharge of a duty or obligation [and) includes judgment, skill,

ability, capacity and integrity” (Ohio Power Co. v. NLRB, 176

F.2d 385, 387 (6th Cir.), cert. denied, 338 U.S. 899 (1949) )—must

be rejected as inconsistent with $ 2(11) as a whole.

substantive significance, and of a nontransitory nature.

Moreover, since the “supervisor” definition also covers di-

rection of other employees (but not, as noted above. al/

direction of other employees), “transfer” and “assign”

must for that reason as well be read to apply to basic

changes in employment responsibilities, and not simply

to day-to-day direction of employees as to the task to be

performed."

In sum, the statutory definition of the term “supervisor”

is imprecise in several respects. In particular, “in the

interest of the employer” must have some meaning other

than simply advancing the employer's interests, but that

meaning cannot be gleaned from the statutory language

alone. And, the definition’s applicability to individuais

who simply give day-to-day directions to other employees

but do not have any of the other indices of supervisory

status is, on the face of things, quite limited. For the

section as a whole makes it plain that it is not enough

to confer supervisory status that the putative supervisor's

directions must be followed, or that those directions be

nonroutine and involve the exercise of independent jude-

ment. But the bare statutory words do not vield a precise

line of demarcation.

(b) Adding to the ambiguity of the “supervisor” defh-

nition standing alone is the fact that the Act explicit!y

covers professional employees, and defines such employ-

ees as, inter alia, individuals whose work is not “routine”

6 For example, the job “assignment” for a nurse’s aid might be

to work in a certain nursing home location on a certain shift taking

care of patients’ physical needs. The precise patients the aid takes

care of on a given day can be changed, at the direction of a pro-

fessional, without in any meaningful sense changing the aid’s job

“assignment”. Similarly, since the aid’s duties are necessarily

varied, to direct the aid on one day to move patients and on another

to change bedclothes is not either to transfer or to reassign that

employee. On the other hand, ordering the aid to work at another

location across town would, in ordinary parlance, be a “transfer”,

while alterine the aid’s shift would be to “assign” the employee

anew.

and “involv[es] the consistent exercise of discretion and

judgment in its performance” (§ 2(12)(a)(i)) (emphasis

supplied) ). Because professionals are defined in this way,

a wooden application of §2(11) to professionals could

eliminate any role for the “not of a merely routine nature/

independent judgment” proviso otherwise central to

$2(11). Put another way, if precisely the sort of pro-

fessional judgment and discretion that brings an employed

individual within § 2(12) is sufficient standing alone to

take the same individual out of the statute under § 2(11),

the inclusion of § 2(12) is rendered all but negatory.

Further, since professionals are necessarily primarily

responsible for the end-product of their work, the phrase

“responsibly to direct” as applied to professionals cannot

mean simply that the employed individual in question is

responsible, in the sense of accountable or liable either

within the enterprise or outside it, for the work of the

directed employee. An attorney, for example, is respon-

sible to his clients and to the court, in both an ethical

and a liability sense, if a brief is improperly filed or not

filed on time because of a mistake by a clerical employee.

See Model Rules of Professional Conduct Rule 5.3

(1983).

It is no answer to these observations to note that pro-

fessionals who have nothing whatever to do with “hire,

transfer, suspen[sion], lay off, recall, promotfion], dis-

charge, assign{ment], reward, . . . discipline or [direc-

tion]” of other employees would still be covered by

$2(12) and by the statute, even though they exercise

judgment, discretion and responsibility in their work. Few

professional employees work in isolation, without some

assistance from other employees. As just noted, lawyers

have secretaries to assist them; engineers and architects

have draftspersons; doctors in hospitals have both clerical

assistance and patient care assistance; scientists work with

laboratory and other technical assistants. See generally

Matthew W. Finkin, The Supervisory Status of Profes-

sional Employees, 45 Fordham L. Rev. 805 (1977).

Indeed, the statutory definition of “professional em-

ployees,” on its face, recognizes the need for such assist-

ants. Since, according to $ 2(12), “professional[s]” do

not predominantly do “routine mental, manual, mechani-

cal or physical work”, and since accomplishing most pro-

fessional tasks involves a goodly measure of such work,

Congress must have contemplated that someone other

than the professional employee was doing that work.

And, unless Congress was of the view—which it assuredly

was not—that secretaries type and file briefs without close

direction from an attorney, or that draftspersons are not

directed by engineers in producing blueprints, Congress

could not have intended a reading of § 2(11) that would

so overlap § 2(12).’

2. Legislative History: The legislative history of the

the Labor Management Relations Act of 1947 (“LMRA”

or “Taft-Hartley Act”) with regard to the exclusion of

“supervisors” and the coverage of “professional employ-

ees” is of substantial aid in clearing up the apparent

ambiguities and internal tensions in the Act with regard

to the reach of the “supervisor” definition. That history

confirms that Congress did not intend to exclude as “super-

visors” employees who have some role in giving direction

to other employees but are not “aligned with management”

(Yeshiva, supra, 444 U.S. at 690) to the same degree as

traditional industrial foremen.”

7It is important to be clear that we are not arguing that Con-

gress intended a special application of §2(11) for professional

employees. To the contrary, our point is that the express definition

of professional employees and the manner in which such employees

are defined throws a critical light upon the appropriate construction

of §2(11) as applied to all kinds of workers.

8 This Court has on several other occasions surveyed the legislative

history of §2(11) of the Act. See NLRB v. Bell Aerospace, supra,

416 U.S. at 277-285; Beasley v. Food Fair of North Carolina, 416

U.S. 658, 658-662 (1974); NLRB v. Hendricks County Rural Elee-

trie Membership Corp., 451 U.S. 170, 181-184 (1981). Since none

of those cases directly involved an application of the “supervisor”

definition, the emphasis in these earlier accounts is somewhat differ-

ent at points from that here.

(a) To understand what Congress intended when it

enacted the “supervisor” definition in § 2(11), one must

begin with the legal background against which Congress

legislated. Section 2(3) of the Wagner Act defined “em-

ployee” simply as .

any employee... but... mot... any individual

employed as an agricultural laborer, or in the do-

mestic service of any family or person at his home,

or any individual employed by his parent or spouse.

Within a few years after passage of the Act the Board

was confronted with questions as to the applicability of

the Act to supervisory employees.

Initially the Board concluded that supervisory employ-

ees were covered by the Act, and accordingly were pro-

tected in their right to unionize. Union Collieries Coal

Co., 41 NLRB 961 (1942): Godchaux Sugars, Inc., 44

NLRB 874 (1942). In Maryland Drydock Co., 49

NLRB 733 (1943), however, the Board reversed course

and held that it would refuse to certify bargaining units

composed of supervisors.

Shortly thereafter, the Board set out its general test for

determining supervisory status:

As a general rule, it is our policy to exclude from

the appropriate unit employees who supervise or

direct the employees therein, and who have authority

to hire, promote, discharge, discipline, or otherwise

effect changes in the status of such employees, or

whose official recommendations concerning such ac-

tion are accorded effective weight. | Douglas Aircraft

Co., 50 NLRB 784 (1943). See Eighth Annual

Report of the National Labor Relations Board

(“Eighth Annual Report”) 57 (1943).}

The short-hand Dovhlas Aircraft test. which described

supervisory employees as those “with authority to hire,

promote. discharge. discipline, or otherwise effect changes

in the status of employees or effectively recommend such

action,” was followed in numerous cases. See, e.g., Elec-

tric Auto-Lite Co., 50 NLRB 1006, 1008 (1943); Heck-

man Furniture Co., 50 NLRB 834, 837-38 (1943); E./.

du Point de Nemours & Co., 53 NLRB 473, 476 (1943).

In applying this test, the Board consistently distinguished

between employees who were “true” supervisors and those

who merely performed some supervisory duties. See, ¢.g.,

Lockheed Aircraft Corp., 50 NLRB 958, 960-61 (1943)

(holding that although firemen “supervise auxiliary fire-

men” they had no power to “affect the employee status of

the auxiliary firemen,” and were therefore not true super-

visors ): Colonial Press, Inc., 50 NLRB 823, 826 (1943)

(finding that “working foreman” did not possess “suffi-

cient supervisory authority” to warrant excluding him

from bargaining unit); The Arundel Corp., 53 NLRB

466, 470-71 (1943) (finding that a “journeyman machin-

ist, who at times directs and is assisted by helpers accord-

ing to a custom long prevailing in the machinists’ craft”

was not a true supervisor); Douglas Aircraft Co., 53

NLRB 486, 491-92 (1943) (finding that certain “lead-

men” described as “working employees who are in charge

of from 4 to 12 men” were not supervisory employees):

Byron-Jackson Co., 53 NLRB 528, 532 (1943) (finding

that “leadmen,” each of whom “has from 3 to 25 em-

ployees under him,” were not supervisory employees. )

In March of 1945, in Packard Motor Car Co., 61

NLRB 4 (1945), the Board reconsidered the entire ques:

tion of whether supervisors had organizational rights un-

der the Act and held, once again, that they did. Never-

theless, “[t]he Packard decision did not affect the Board's

long-established rule that supervisory employees who are

vested with the authority to hire, promote, discharge, dis-

cipline, or otherwise effect changes in the status of em-

ployees, or effectively recommend such action, are not

properly included in bargaining units comprising their

subordinates.” Tenth Annual Report 34 (1945). Thus,

the Board still had the same need to distinguish super-

visors from other employees. And until the Taft-Hartley

Act was promulgated, the Board adhered to its estab-

lished test for determining supervisory status. See Elev-

enth Annual Report 31 (1946); Twelfth Annual Report

21-22 (1947).

During this period, the Board continued to distinguish

employees who possessed true supervisory authority from

leadmen, “strawmen”, craftspersons with assistants, and

others whose work only involved minor supervisory func-

tions, and continued to rule that the latter were not

supervisors for NLRA purposes. For example, in cases

that would subsequently be cited with approval in the

legislative history of the LMRA, the Board held that

the following employees were not supervisors: (1) “Time-

keeper Leaders A” who each “direct[ed] the work of

from 6 to 20 timekeepers and timekeeper leaders B,”

Bethlehem Sparrows Point Shipyard, Inc., 65 NLRB 284,

286-7 (1946); (2) two “planning and production depart-

ment” employees who were classified as “supervisors” by

their employer and had assistants, id. at 288; (3) “group

leaders” who “instruct and assign material to men who

work under them in groups from 1! to 40,” Pittsburgh

Equitable Meter Co., 61 NLRB 880, 882 (1945): (4)

“so-called foremen and assistant foremen” who “spend

part of their time supervising and the balance in assisting

in getting out the work,” The Richards Chemical Works,

Inc., 65 NLRB 14, 16 (1945); and (5) “{s]o-called

‘supervisory employees’” who “direct from one to six

employees” and whose “duties are to keep production

moving on schedule and to inspect and control the quality

of work ....” Endicott Johnson Corp., 67 NLRB 1342,

1347 (1946).

(b) The Taft-Hartley Act started in the House as the

Hartley bill, reported by the Education and Labor Com-

mittee after 31 days of hearings. The Committee Report

accompanying the Hartley bill (H.R. Rep. 245, 80th

Cong. Ist Sess. (1947)) traced the history of the Board's

treatment of foremen, and decried at length the evils

that flow “when the foremen unionize.” Id. at 14, re-

printed in NLRB. Legislative Hisory of the Labor-Man-

agement Relations Act. 1947 (Leg. iHist.”) 305 (1985)

cemphia is suontied). The Committee concluded that:

»* .?

we’

If management is to be free to manage American

industry as in the past and to produce the goods on

which deoends our strength in war and our standard

of living always. then Congress murst exclude foremen

from the operation of the Labor Act, not only when

they organize into unions of the rank and file and

into unions affliated with those of the rank and file.

but also when they organize into unions that claim

to be independent of the unions ol the rank and file.

(id. at 306; emphasis in original. |

The Hartlev bill passed the House alter sev ral days

of debate. Neither the House Peport nor any statements

on the floor of the House made any meatica of y disagree-

ment with the Board’s definition of supervisor insofar us

that definition excluded these employees who perform

same secondary supervisory functions, but only with the

Rade decision to certify bareaining units of foremen

and of seain eatesorics of “confidential” and labor rela-

th Cn tloyees

fo) ~ Ha thas Piouee was at work on the Hartlev hill,

the Senate Comn itiee on labor and Pu lic W ‘Hare.

heired by Senator Tait. had beore (ta labor bill intro-

teced by the chairman. After six weeks of hearings, the

wmmittee reported a bill to the Moor which like the

Hartley bill. soucht to overturn Packard Moter Car Co.

NERR. 230 US. 185 €194°) Cupholdiag the Board's

‘xtension of « ‘ine yichts to supervisors) by treat-

" supervisor “m met” and thus removing them

Ne swe } + ..

from the protection of the NLRA.

The Senate Committee bill defined s inervisor 1S follows:

(11) The term ‘supervisor means any individual

havin torit.. in the interest of the employer to

tranefer. «, mend. Jay off. recall, promote, dis-

dyyree. assign. reward, or discipline other employees,

or to adjust their grievances, or effectively to recom-

mend 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. [Leg. Hist. at 104.]

The Senate Committee Report explained that:

In framing this definition, the committee exercised

great care, desiring that the employees herein ex-

cluded trom the coverage of the act be truly super-

visory.

ok oe os ok

In drawing an amendment to meet this situation, the

committee has not been unmindful of the fact that

certain employees with minor supervisory duties have

problems which may justify their inclusion in that

act. /t has therefore distingulshed between straw

bosses, leadmen, set-up men, and other minor super-

visory employees, on the one hand, and the supervisor

vested with such genuine management prerogatives as

the right to hire or five, discipline, or make effective

recommendations with respect to such action. In

other words the committee adopted the test that

which the Board itself has made in numerous cases

when it has permitted certain categories of super-

visory emplovees to be included on the same bar-

gaining unit with the rank and file. (Bethlehem Steel

Company, Sparrows Point Division, 65 N.L.R.B.

284 .. . Pittshuregh Equitable Meter Company, 61

N.L.R.B. 880 . . . Richards Chemical Works, 65

N.L.R.B. 14. . . Endicott-Johnson, 67 N.L.R.B.

1342. 1347.) [Leg. Hist. at 410, 423; emphasis

supplied. | °

In introducing the Committee bill, Senator Taft em-

phasized that the purpose of the provision regarding

supervisors was to reverse the Board’s decisions regarding

foremen, and that the Committee’s “definition of fore-

men is applied to persons who are strictly foremen... .

* The cases cited in the Senate Report are discussed, supra, at

pp. 14-15.

[not] any of the others about whom controversy has

arisen.” 7d. at 1009,

Senator Ellender likewise explained that the point of

the supervisors provision was to overrule Packard Motor

which, he stated, would permit “even the vice presidents

working for a large corporation . . . [to] compel their

employer to recognize them.” Leg. Hist. at 1064. In a

colloquy with Senator Aiken, Senator Ellender emphasized

the narrowness of the provision and the lack of any inten-

tion to interfere with the Board’s established tests for

interfering with the determination of supervisory status:

Mr. AIKEN. The Senator will recall and I think it

should be in the Record, that the definition of a

supervisory employee was considerably changed in

committee. As originally written into the bill, it in-

cluded . . . many other types of workmen, who very

clearly were not supervisors.

Mr. ELLENDER. The Senator is correct.

Mr. AIKEN. The committee then more closely de-

fined the word ‘supervisor’, to include supervisors in

fact, rather than all the other groups of employees

whom some employers would have liked to have had

included in the list of supervisory employees, so that

such employees would not be able to join the union

and gain the benefits of the Labor Relations Act.

*K “6 * **

Mr. AIKEN. In dozens of cases labor wanted noth-

ing whatever to be done, while industry wanted to

include in the definition of ‘supervisor’ any number

of occupational employees who had no_ business

whatever being included in the definition of ‘super-

visor. The Committee simply had to work out for

itself what it thought was a proper definition of a

supervisor.

Mr. ELLENDER. The Senator is correct.

* ok 4 *

Mr. ELLENDER. Let me state to the distinguished

Senator that the definition adopted by our committee

is the one that has been put into practice for several

years last past by the NLRB. {Leg. Hist. at 1064-65;

emphasis supplied. |

Senator Ellender later stated again on the Senate floor

that “[t]he description of a supervisor as written in the

bill is practically the same used by the NLRB for the

past 5 or 6 years.” /d. at 1068.

The Committee’s version of § 2(11) was altered prior

to passage by an amendment offered by Senator Flanders

to add the words “or responsibly to direct them” after the

word “employees.” Leg. Hist. at 1303. Senator Flanders

explained the purpose of the added language:

As an employer for many years past, and until I

resigned to enter this body, I can say that the defini-

tion of “supervisor” in this act seems to me to cover

adequately everything except the basic act of super-

vising. Many of the activities described in paragraph

(11) are transferred in modern practice to a per-

sonnel manager or department. The supervisor may

recommend more or less effectively, but the person-

nel department may, and often does, transfer a

worker to another department on other work instead

of discharging, disciplining or otherwise following

the recommended action.

In fact, under some modern management methods,

the supervisor might be deprived of authority for

most of the functions enumerated and still have a

large responsibility for the exercise of personal judg-

ment based on personal experience, training and

ability. He is charged with the responsible direction

of his department and the men under him. He de-

termines under general orders what job shall be

undertaken next and who shall do it. He cives in-

structions for its proper performance. If needed. he

gives training in the performance of unfamiliar tasks

to the worker to whom they are assigned. Such men

are ahove the grade of “straw bosses, lead men, set-

up men, and other minor supervisory employees,” as

enumerated in the [Senate Committee) report.” Their

essential managerial duties are best defined by the

werds, “direct ‘responsibly, ”“ which I am suggesting.

[/d. at 1303, emphasis supplied. ]

The proposed amendment was immediately accepted by

Senator Taft, who stated that it “merely adds to the

definition of the word ‘supervisor... The definition in the

bill is that which has been used by the National Labor

Relations Board for the past 4+ or 5 years: but I have no

objection certainly to including the words ‘or responsi-

bility [sic] to direct them.” Leg. Hist. at 1304. The

amendment passed by voice vote without further debate.

Id. As a result. perhaps, of an error in enunciation or

transcription, the amendment as it passed the Senate read

not “responsibly to direct.” as first stated by Senator

Flanders, but “responsibility to direct.” H.R. 3020 as

Passed Senate, § 2411), Leg. Hist. at 232.

{d) The differences between the House and Senate

bills, including the differences in the definition of “super-

visor”, were submitted to a Conference Committee. In

conference, the Senate prevailed on the scope of the

“supervisor” provision, and the Senate provision was in-

corporated into the Conference Committee report with a

single, unmentioned change—the term “responsibility to

direct” in the Senate bill as finally enacted was changed

to “responsibly to direct.” Lea. Hist. at SO8. In a written

summary inserted into the Congressional Record, Senator

Taft reported the conference action to the Senate as

follows:

(8) Supervisors: Both the House bill and the Senate

amendment excluded supervisors from the individuals

deemed to be employees for the purposes of the

act. There was a sharp divergence between the

House and Senate, however, with respect to the occu-

pational groups which fell within this definition. The

Senate Amerdmont, which the conference ultimately

adonted, is limited to bona fide supervisors. The

House had included numerous other classes.

The Senate Amendment confined the definition of

supervisor to individuals generally regarded as fore-

men and employees of like or higher rank. {Leg.

Hist. at 1537: emphasis added. ]

The House conferees conceded defeat in. their report:

“The conference agreement, in the definition of ‘super-

visor,” limits such term to those individuals treated as

Supervisors under the Senate »mendment.” Jd. at 539.

(e) The sections of the Ta*t-Hartley Act. rertaining

to professional emplovees had 2 much less tortuous route

through the lesislative process then the section relating

to supervisors. The Howse bill. both as reported by

the Edveation and Labor Committes and asc nassed be

the House. contained no definitien of srefescional em-

Plovee. but did contain a revererce to sach emolovees

in a section specifving snecial renresentation procedures.

H.R. 3020 as reported. § 9(f)(2). L 7, Hist. at 62: H.R.

3020 as passed House. * 9(f)(2). Lee. Hist. at 189. The

Senate bill. as reported and as it nasced the Senate. con-

tained essentially the same definition of “professional

emplovee” as in the final Act. S. 1176 as renorted.

§$ 2(12). Lee. Hist. at 104-95: H.R, 2999 95 nassed Sen-

ate. $ 2(12), Leg. Hist. at 232-33.

The House Committee rerort did not senarately discuss

professional emrlovees. The Senate Committee renort,

however, provides some insieht into the purpose of de-

’

fining professional emnlovees specially in the statute and

vroviding tailored election proceedings:

Although there has been a trend in recent vears

for manufact iring af ne “ey to emnmlov manv pnro-

fessional persons, inchiding architects, enein-ers,

scientiv’s, lawvers, pt rurses, NO corresponding

attention was given by Coneress to their special

problems. Nevertheless svch employees have a erent

community of interest in maivtainive certain protes-

sional standar’s, 1S. Ren. No. 198 on S. 1126 at 1).

Leg. Hist. at 417.1

See also id. at 19, Leg. Hist. at 425 (“the committee was

careful in framing a definition to cover only strictly pro-

fessional groups such as engineers, chemists, scientists,

architects, and nurses.” )"®

The Conference Committee report incorporated “the

same definition of ‘professional employee’ as that con-

tained in the Senate amendment” and “accord[ed] to this

category the same treatment which was provided-for them

in. . . the House bill.” H. Conf. Rep. No. 510 on H.R.

3020 at 36, Leg. Hist. at 540. The House Conference

Committee Report explained that “[t]his definition in

general covers such persons as legal, engineering, scien-

tific and medical personnel together with their junior

professional assistants.” Id. at 36, Leg. Hist. at 540 (em-

phasis supplied). Thus, there was express recognition of

the fact that professional employees do often have “assist-

ants”, and would retain their employee status nonetheless.

(f) As anticipated, the Taft-Hartley bill was vetoed

by President Truman. Leg. Hist. at 915-22. The veto

was overridden by a vote of 331-83 in the House, id. at

922-23, and a vote of 68-25 in the Senate, id. at 1657.

Accordingly, the Taft-Hartley Act became law.

(3) Post-1947 Application of § 2(/1): Following pas-

sage of the LMRA, the consequences of classifying an

individual as a supervisor had changed, but the need to

differentiate between “supervisors” and statutory “employ-

ees” had not. Recognizing that “[t]he definition of super-

visors contained in section 2(11) of the act as amended

is substantially a codification of the definition formulated

and uniformly applied by the Board for several years

before the amendment of the statute” (Thirteenth Annual

Report 38 (1948) (footnotes omitted) ), the Board con-

tinued to hold—as Congress had specifically intended—

1 These explanations are noteworthy in that they make clear

that Congress specifically intended to cover the very groups that

traditionally work with clerical or technical assistants. See pp. 11-

12, supra.

that minor supervisory duties do not automatically make

an employee a supervisor, particularly where those duties

involve only the direction of other employees. George

Ehlenberger and Co., 77 NLRB 701, 703 (1948) (“lead-

men” whose “duties involve the direction or guidance

of other employees in the course of production opera-

tions”); H.J. Heinz Co., 77 NLRB 1103, 1105-06 (“head

cooks” who “spend approximately 90 percent of their time

doing manual work, and. . . 10 percent of their time. . .

instructing other. employees in the department” and a

“leadman” who spends “approximately 50 percent of his

time . . . doing manual work, and approximately 10 per-

cent of his time . . . directing the work of his crew”);

The Austin Co., 77 NLRB 938, 943 (1948) (engineer-

ing department employees who “may assign and guide

the work of certain of their professional colleagues” but

who actually “are no more than group leaders”).

The Board has since the early post-Taft Hartley cases

continued to view the governing statutory distinction as

one between individuals with the limited authority over

the work of other employees characteristic of “leadmen”

and similar employees, and the “real power in the interest

of the employer’ to take meaningful action with respect

to the statutory tests’” (International Union of United

Brewery v. NLRB, supra, 298 F.2d at 303 (emphasis

supplied) ) characteristic of the true supervisors Congress

intended to cxclude from the Act.’’ And the courts have,

in the main, left it to the Board to draw this elusive line,

recognizing that “the gradations of authority ‘responsibly

to direct’ the work of others from that of general manager

or other top executive to ‘straw boss’ are . . . infinite and

subtle.” Marine Engineers Beneficial Ass'n vy. Interlake

Steamship Co., 370 U.S. 173, 179 n.6 (1962), (quoting

NLRB v. Swift & Co., 292 F.2d 561, 563 (Ist Cir.

"! See, e.g., Injected Rubber Products Corp., 258 NLRB 687, 688-

92 (1981); Aquatech, Inc., 297 NLRB 711, 716-17 (1990), enf’d,

926 F.2d 538 (6th Cir. 1991).

1961)). See also Food Store Employees Local 347 v.

NLRB, 422 F.2d 685, 690 (D.C. Cir., 1969) (“the

finely-shaded gradations of power in any enterprise pro-

scribe a wooden reading of Section 2(11). Almost any

employee “directs” other employees in some fashion at

some time.”); NLRB v. Security Guard Service, Inc., su-

pra, 384 F.2d at 149 (“[s]ome kinship to management,

some emphatic relationship between employer and em-

ployee must exist before the latter becomes a supervisor

for the former”); NLRB v. Southern Bleachery & Print

Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), cert.

denied, 359 U.S. 911 (1959) (question is “whether the

individual is merely a superior workman or lead man

who exercises the control of a skilled worker over less

capable employees or is a supervisor who shares the

power of management.” ).

This general approach to reconciling the tensions within

the statutory language and structure, which carries out

Congress’ intent as expressed consistently during the Taft-

Hartley deliberations, was applied as well, before the 1974

NLRA health care amendments, to the health care indus-

try. In Doctors’ Hospital of Modesto, Inc., 183 NLRB

950 (1970), for example. the Board held that nurses do

not necessarily become supervisors simply because they

“inform other, lesser skilled employees as to the work to be

performed for patients and insure that such work is done,”

where such direction is “soley a product of their highly

developed professional skills and dof[es] not, without more,

constitute an exercise of supervisory authority in the inter-

est of their Employer.” /d. at 951. Analogizing such

nurses to “[t]he leadman or straw boss [who] may give

minor orders or directives or supervise the work of others

but . . . is not necessarily part of management and a

supervisor under the Act.” the Ninth Circuit upheld the

Board’s conclusion. NLRB yv. Doctors’ Hospital of Mo-

desto, Inc., 489 F.2d 772, 776 (9th Cir., 1973) (empa-

sis in original). See also id., citing various “leadmen” and

similar cases, includine NLRB vy. Security Guard Service,

supra.

It was only a few months after the Ninth Circuit deci-

sion in Doctors’ Hospital of Modesto that committees of

both the House and the Senate considered whether to

modify the definition of “supervisor” in the course of

amending the NLRA to cover nonprofit hospitals. Or-

ganizations of health care professionals had argued for a

clarifying amendment while Doctors’ Hospital was before

the Ninth Circuit, noting that health care professionals

tend to work in patient care teams, with higher skilled

professionals giving direction to lesser skilled employees as

to the care of patients. See Hearings on S. 794 before

the Subcomm. on Labor and Public Welfare, 93d Cong.,

Ist Sess. (1973) at 122 (Statement of American Nurses’

Assn.); id. at 296 (Statement for the Committee of In-

terns and Residents ).

Both the House Committee and the Senate Committee

considering the health care amendments “studied [super-

visor] definition with particular reference to health care

professionals” and “conclude[d] that the proposed amend-

ment is unnecessary because of existing Board decisions.”

S. Rep. No. 93-766, 93d Cong. 2d Sess. 6 (1974), re-

printed in Legislative History of the Coverage of Non-

profit Hospitals Under the National Labor Relations Act,

1974 (“1974 Leg. Hist.”), at 13 (emphasis supplied);

H.R. Rep. No. 93-1051, 93d Cong. 2d Sess. 7 (1974),

1974 Leg. Hist. at 275 (emphasis supplied):

The Committee notes that the Board has carefully

avoided applying the definition of ‘supervisor’ to a

health care professional who gives direction to other

employees in the exercise of professional judgment,

which direction is incidental to the professional's

treatment of patients, and thus is not the exercise of

supervisory authority in the interest of the employer.

[1974 Leg. Hist. at 13, 275 (emphasis supplied).]

(4) The Lessons: In Yeshiva this Court cited the 1974

congressional committee reports, 2s well as the Board and

Ninth Circuit opinions in Doctors’ Hospital, as support

for its conclusions that the Board’s general approach to

dividing professional employees from supervisors “aligned

with management . . . accurately captures the intent of

Congress.” 444 U.S. at 690 & n.30. The statutory lan-

guage and legislative materials reviewed above amply

confirm the Yeshiva Court’s conclusion.

First, the legislative history squarely shows an inten-

tion to draw a line specifying that “individuals generally

regarded as foremen and employees of like or higher

rank” (Leg. Hist. at 1537), are “supervisors” and leaving

individuals with only a minor supervisory role as “em-

ployees” covered by the Act. And, the “leadman” and

“strawman” examples cited by critical members of Con-

gress indicate, in particular, that day-to-day on-site direc-

tion by higher skilled employees of lesser skilled ones is

insufficient, either standing alone or combined with the

routinized exercise of other statutory supervisory attri-

butes, to meet the § 2(11) definition of “supervisor”.

Second, the statutory language, while ambiguous and

potentially internally inconsistent, is certair!y subject to

a rational reading consistent with this conclusion. In par-

ticular, the term “in the interest of the employer”, as

noted, cannot be read to denote simply advancing the em-

ployer’s interests. See pp. 6-8, supra. It is therefore rea-

sonable to view that phrase, as the Board and the 1974

Congressional committees have done, as indicating that

any activities otherwise conferring supervisory status must

be intended to, and be perceived as, significantly advanc-

ing management's labor relations interests as opposed to

advancing the overall business of the enterprise, in this

instance patient care.’ Similarly, in applying the “in

12 One Board Regional Director in a health care case put this

point well:

In following this dictate of congressional intent, it may

be that the Board has at times explained its rationale for decid-

ing that certain powers exercised by health care professionals

or technicals did not constitute supervisory authority by ac-

centuating a dichotomy between that authority exercised on

behalf of the employer and that exercised in the interests of

patient care. ... It is obvious, however, that Congress and

certainly the Board did not intend a mutually exclusive dichot-

dependent judgment” qualifying phrase in the “super-

visor” definition, it is sensible to exclude the exercise of

“professional” judgment, as opposed to “managerial” judg-

ment.” Finally, in determining whether or not an in-

dividual is a supervisor on the basis of the “responsibly

to direct” prong of the “supervisor” definition alone, it is,

for reasons surveyed previously, rational to view that

prong as adding to the § 2(11) class of supervisors only

individuals who, like traditional industrial foremen, have

omy. Indeed, as set out by Congress, this test [“in the interest

of the employer’! is simply another way of asking the ques-

tion put in any case involving the issue of supervisory status:

Does the individual identify with the interests of the employer,

rather than with the interests of employees. [Beverly Enter-

prises, 275 NLRB 943, 946 (1985) (Regional Director’s Re-

port) }.

18 To illustrate: In giving direction to secretaries concerning

what work to do and how to do it, attorneys are exercising, ordi-

narily, simply their professional judgment, in an effort to get their

own jobs done properly. Such exercise of judgment should not

count as the kind of “independent judgment” necessary to come

within the “supervisor” definition. On the other hand, the determi-

native exercise of independent judgment regarding how many secre-

taries to hire, how much to pay them, or whether or not to dis-

cipline them for coming in late is not directly connected to the

practice of law, and could trigger supervisory status.

We note that this distinction between direct job-related independ-

ent judgment and other kinds of independent judgment should not

be limited to professional employees. The definition of professional

employees was included in the statute for a particular, unit-

determinative reason, and was certainiy not intended to indicate

that some non-professional employees do not as well routinely exer-

cise independent judgment in the performance of their jobs.

Craftspersons, for example, exercise such judgment as to their

craft. And. as noted, the lead person cases Congress express!v ap-

proved recognize that highly skilled employees may exercise jude-

ment connected to that skill in giving direction to less skilled em-

ployees without becoming statutory supervisors.

Once again, our point is that the professional employee definition

is useful in delineating the reach of the supervisor exception, not

that there is a special rule regarding supervisory status for

professionals.

in their sole charge and as a primary responsibility the

major decisions concerning what work is to get done, when

it gets done and how it gets done."* If not so read, Con-

gress’ express intention to leave within the Act's cov-

erage individuals who have a minor role in providing on-

site directions to other individuals employed by the em-

ployer would be negated.

The endpoint of this analysis is that there is no formu-

laic answer to the question whether or not particular

individuals are “supervisors” based upon their direction

of other emplovees. Rather, Congress intended that the

determination cf this question remain with the Board,

which is to decide whether all the circumstances indi-

cate that individuals said to be supervisors exercise the

level of responsibility with respect to the direction of other

employees that truly places in the ranks of management,

or. instead. the level of responsibility that truly places

them in the ranks of highly skilled “employees” perform-

ing. incidentally to their primary employee work tasks, a

minor supervisory role.

This Court has left similar determinations to the Board

even when there is ro express statutory guidance as to

the governing indices of managerial status. NLRB v.

Bell Aerospace Co., supra, 416 U.S. at 289-90 & n.19

(remanding to the Board to determine whether a particu-

lar class of employees comes within the implied statutory

exclusion of managerial employees without any labor

relations responsibilities, and noting that “the Board has

14To recapitulate in this regard: “Responsibly” cannot mean

simply the exercise of nonroutine judgment, since that requirement

is independently contained in the definition; it cannot mean only

accountability, since professionals are necessarily accountable for

their work product, whether produced with the aid of assistants or

not; and it cannot justify a narrow focus upon whether or not there

are other on-site supervisors to second-guess the directions given,

since there is a separate statutory provision regarding the effective-

ness—as opposed to the level of ultimate responsibility——of any

directions given. See pp. 8-10, supra.

had ample experience in defining the term ‘managerial’

in the manner which we think the Act contemplates. .. .

[by focusing on] the employees’ actual job responsibilities.

authority, and relationship to management.”) The “grada-

tions . . . infinite and subtle” (Marine Engineers Bene-

ficial Association v. Interlake Steamship Co., supra, 370

U.S. at 179 n.6), within hierarchical organizations are

no more so when the task is to apply the express pro-

vision governing supervisory status than when it is to

apply the implied managerial exception. [n both instances

the warrant and the need is to entrust to the administra-

tive process the drawing of the line between “manage-

ment” and “employees.”

CONCLUSION

For the reasons stated above, the judgment of the

Court of Appeals for the Sixth Circuit should be reversed

and the Decision and Order of the NLRB should be

enforced.

Respectfully submitted,