OCTOBER TERM, 1993
Syllabus
NATIONAL LABOR RELATIONS BOARD v. HEALTH CARE & RETIREMENT
CORPORATION OF AMERICA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 92-1964. Argued February 22, 1994-Decided May 23, 1994
Employees are considered "supervisors," and thus are not covered
under the National Labor Relations Act, 29 U. S. C. § 152(3), if
they have authority, requiring the use of independent judgment, to
engage in one of 12 listed activities and they hold the authority
"in the interest of the employer," § 152(11). Petitioner National
Labor Relations Board has stated that a nurse's supervisory
activity incidental to the treatment of patients is not authority
exercised in the interest of the employer. Respondent owns and
operates a nursing home at which staff nursesincluding the four
nurses involved in this case-are the senior ranking employees on
duty most of the time, ensure adequate staffing, make daily work
assignments, monitor and evaluate the work of nurses' aides, and
report to management. In finding that respondent had committed an
unfair labor practice in disciplining the four nurses, an
Administrative Law Judge concluded that the nurses were not
supervisors because their focus was on the well-being of the
residents, not the employer. The Board affirmed, but the Court of
Appeals reversed, deciding that the Board's test for determining
nurses' supervisory status was inconsistent with the statute.
Held: The Board's test for determining whether nurses are
supervisors is inconsistent with the statute. Pp. 576-584.
(a) The Board has created a false dichotomy-between acts taken
in connection with patient care and acts taken in the interest of
the employer. Cf. NLRB v. Yeshiva Univ.,
444 U. S. 672, 688. Since
patient care is a nursing home's business, it follows that
attending to the needs of patients, who are the employer's
customers, is in the employer's interest. This conclusion is
supported by the Court's decision in Packard Motor Car Co. v. NLRB,
330 U. S. 485,
488-489, interpreting the phrase "in the interest of an employer."
Pp. 576-580.
(b) The Board's nonstatutory arguments supporting its
interpretation are unpersuasive. Its contention that 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 is rejected.
The Act must be enforced according to its
572
own terms, not by creating legal categories inconsistent with
its meaning. Nor can the tension between the Act's exclusion of
supervisory and managerial employees and its inclusion of
professionals be resolved by distorting the statutory language in
the manner proposed by the Board. In addition, an isolated
statement in the legislative history of the 1974 amendments to the
Act-expressing apparent approval of the application of the Board's
then-current supervisory test to nurses-does not represent an
authoritative interpretation of the phrase "in the interest of the
employer" enacted by Congress in 1947. Pp.580-582.
987 F.2d
1256, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined.
GINSBURG, J., filed a dissenting opinion, in which BLACKMUN,
STEVENS, and SOUTER, JJ., joined, post, p. 584.
Michael R. Dreeben argued the cause for petitioner.
With him on the briefs were Solicitor General Days, Deputy
Solicitor General Wallace, Jerry M. Hunter, Nicholas E. Karatinos,
Norton
J. Come, Linda Sher, John Emad Arbab, and Daniel
Silverman.
Maureen E. Mahoney argued the cause for respondent.
With her on the brief were Cary R. Cooper, Margaret
J.
Lockhart, and R. Jeffrey Bixler.*
JUSTICE KENNEDY 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
*Briefs of amici curiae urging reversal were filed for the
American Federation of Labor and Congress of Industrial
Organizations by Marsha S. Berzon and Laurence Gold; and for the
American Nurses Association by Barbara
J. Sapin and Woody N.
Peterson.
Briefs of amici curiae urging affirmance were filed for the
American Health Care Association by Andrew A. Peterson, Thomas V.
Walsh, and Patrick L. Vaccaro; for the Council on Labor Law
Equality by Gerard C. Smetana and Michael E. Avakian; and for U. S.
Home Care Corp. by William H. DuRoss III.
573
those rights to supervisory employees, however, so the statutory
definition of supervisor becomes essential in determining which
employees are covered by the Act. In this case, we decide the
narrow question whether the National Labor Relations Board's
(Board's) test for determining if a nurse is a supervisor is
consistent with the statutory definition.
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, layoff, 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
574
the affirmative if an employee is to be deemed a supervisor.
First, does the employee have authority to engage in 1 of the 12
listed activities? Second, does the exercise of that authority
require "the use of independent judgment"? Third, does the employee
hold the authority "in the interest of the employer"? Northcrest
Nursing Home, 313 N. L. R. B. 491, 493 (1993). This case concerns
only the third question, and our decision turns upon the proper
interpretation of the statutory phrase "in the interest of the
employer."
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 Cert. 15. As stated in
reviewing its position on this issue in its recent decision in
Northcrest Nursing Home, supra, at 491492, 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
"[t]here 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
575
(including both registered nurses and the four licensed
practical nurses involved in this case), and 50 to 55 nurses'
aides. The staff nurses are the senior ranking employees on duty
after 5 p.m. during the week and at all times on
weekendsapproximately 75% of the time. The staff nurses have
responsibility to ensure adequate staffing; to make daily work
assignments; to monitor the aides' work to ensure proper
performance; to counsel and discipline aides; to resolve aides'
problems and grievances; to evaluate aides' performances; and to
report to management. In light of these varied activities,
respondent contended, among other things, that the four nurses
involved in this case were supervisors, and so not protected under
the Act. The Administrative Law Judge (ALJ) disagreed, concluding
that the nurses were not supervisors. The ALJ stated that the
nurses' supervisory work did not "equate to responsibly ...
direct[ing] the aides in the interest of the employer," noting that
"the nurses' focus is on the well-being of the residents rather
than of the employer." 306 N. L. R. B. 68, 70 (1992) (internal
quotation marks omitted) (emphasis added). The Board stated only
that "[t]he judge found, and we agree, that the Respondent's staff
nurses are employees within the meaning of the Act." 306 N. L. R.
B. 63, 63, n. 1 (1992).
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
576
Board's interpretation inconsistent with the statute. 987 F. 2d,
at 1260. The court further stated that "it is up to Congress to
carve out an exception for the health care field, including nurses,
should Congress not wish for such nurses to be considered
supervisors." Id., at 1261. The court "remind[ed] the Board that it
is the courts, and not the Board, who bear the final responsibility
for interpreting the law." Id., at 1260. After concluding that the
Board's test was inconsistent with the statute, the court found
that the four licensed practical nurses involved in this case were
supervisors. Id., at 1260-1261.
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-
577
rial employees are excluded from the Act's coverage. Id., at 283
("so clearly outside the Act that no specific exclusionary
provision was thought necessary"). The Board in Yeshiva argued that
the faculty members were not managerial, contending that faculty
authority was "exercised in the faculty's own interest rather than
in the interest of the university." 444 U. S., at 685. To support
its position, the Board placed much reliance on the faculty
members' independent professional role in designing the curriculum
and in discharging their professional obligations to the students.
We found the Board's reasoning unpersuasive:
"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-
578
thority exercised in connection with patient care is somehow not
in the interest of the employer.
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),
579
an employee who in the course of employment uses independent
judgment to engage in 1 of the 12 listed activities, including
responsible direction of other employees, is a supervisor. Under
the Board's test, however, a nurse who in the course of employment
uses independent judgment to engage in responsible direction of
other employees is not a supervisor. Only a nurse who in the course
of employment uses independent judgment to engage in one of the
activities related to another employee's job status or pay can
qualify as a supervisor under the Board's test. See Reply Brief for
Petitioner 4 (filed July 23, 1993) (nurses are supervisors when
they affect "job status or pay of employees working under them").
The Board provides no plausible justification, however, for reading
the responsible direction portion of § 2(11) out of the statute in
nurse cases, and we can perceive none.
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
580
argument that supervision of the care of patients is not in the
interest of the employer. The welfare of the patient, after all, is
no less the object and concern of the employer than it is of the
nurses. And the statutory dichotomy the Board has created is no
more justified in the health care field than it would be in any
other business where supervisory duties are a necessary incident to
the production of goods or the provision of services.
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
581
Board's confidence that there is no danger of divided loyalty
here. Nursing home owners may want to implement policies to ensure
that patients receive the best possible care despite potential
adverse reaction from employees working under the nurses'
direction. If so, the statute gives nursing home owners the ability
to insist on the undivided loyalty of its nurses notwithstanding
the Board's impression that there is no danger of divided
loyalty.
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
582
the test for supervisory status in the health care field, yet
the Board points to a statement in a Committee Report expressing
apparent approval of the Board's then-current application of its
supervisory employee test to nurses. S. Rep. No. 93-766, p. 6
(1974); see Yeshiva, supra, at 690, n. 30. As an initial matter, it
is far from clear that the Board in fact had a consistent test for
nurses before 1974. Compare Avon Convalescent Center, Inc., 200 N.
L. R. B. 702 (1972), with Doctors' Hospital of Modesto, Inc., 183
N. L. R. B. 950 (1970). In any event, the isolated statement in the
1974 Committee Report does not represent an authoritative
interpretation of the phrase "in the interest of the employer,"
which was enacted by Congress in 1947. "[I]t is the function of the
courts and not the Legislature, much less a Committee of one House
of the Legislature, to say what an enacted statute means." Pierce
v. Underwood,
487 U.
S. 552, 566 (1988). Indeed, in American Hospital Assn. v. NLRB,
499 U. S. 606
(1991), the petitioner pointed to isolated statements from the same
1974 Senate Report cited here and argued that they revealed
Congress' intent with respect to a provision of the original 1935
Act. We dismissed the argument, stating that such statements do not
have "the force of law, for the Constitution is quite explicit
about the procedure that Congress must follow in legislating." Id.,
at 616; see also Betts, 492 U. S., at 168. In this case as well, we
must reject the Board's reliance on the 1974 Committee Report. If
Congress wishes to enact the policies of the Board, it can do so
without indirection. See generally Central Bank of Denver, N. A. v.
First Interstate Bank of Denver, N. A., ante, at 185-188.
III
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.
583
In cases involving nurses, that inquiry no doubt could lead the
Board in some cases to conclude that supervisory status has not
been demonstrated. The Board has not sought to sustain its decision
on that basis here, however. It has chosen instead to rely on an
industrywide interpretation of the phrase "in the interest of the
employer" that contravenes precedents of this Court and has no
relation to the ordinary meaning of that language.
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
584
the Board's interpretation of "in the interest of the employer"
is for the most part confined to nurse cases, our decision will
have almost no effect outside that context. Any parade of horribles
about the meaning of this decision for employees in other
industries is thus quite misplaced; indeed, the Board does not make
that argument.
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.
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN, JusTICE STEVENS,
and JUSTICE SOUTER join, dissenting.
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).
585
In contrast to its exclusion of supervisors, the Act expressly
includes "professional employees" within its protections.1 Section
2(12) defines "professional employee" as one whose work is
"predominantly intellectual and varied in character," involves "the
consistent exercise of discretion and judgment in its performance,"
produces a result that "cannot be standardized in relation to a
given period of time," and requires knowledge "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." 29 U. S. C. § 152(12)(a).2
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
1 See § 152(12) (defining "professional employee"); § 159(b)
(limiting N ational Labor Relations Board's discretion to place
professional and nonprofessional employees in the same bargaining
unit).
2 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).
586
to carry out that charge is the matter under examination in this
case.
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. ResCare, Inc.,
705 F.2d
1461, 1466 (CA7 1983) (licensed practical nurses "are, if not
full-fledged professionals, at least sub- professi onals").
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 Relations 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,
587
stating that the language of the Act allowed no other
interpretation. Packard Motor Car Co. v. NLRB,
330 U. S. 485 (1947).
Congress responded by excluding supervisors in the
Labor-Management Relations Act, 1947.3 The Senate Committee Report
noted that the Senate's definition of "supervisor" 4 had been
framed with a view to assuring that "the employees ... excluded
from the coverage of the act [would] be truly supervisory." S. Rep.
No. 105, 80th Cong., 1st Sess., 19 (1947) (hereinafter Senate
Report), Legislative History 425; see also H. Conf. Rep. No. 510,
80th Cong., 1st Sess., 35 (1947), Legislative History 539
("supervisor" limited "to individuals generally regarded as foremen
and persons of like or higher rank"). As the Senate Report
explains:
"[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
3 Section 2(11) of the Act defines a "supervisor" as "any
individual having authority, in the interest of the employer, to
hire, transfer, suspend, layoff, 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).
4 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).
588
GINSBURG, J., dissenting
effective recommendations with respect to such action." Senate
Report, at 4, Legislative History 410.
The purpose of § 2(11)'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).5 The inclusion of that
definition, together with an amendment to § 9(b) of the Act
limiting the placement of professionals and nonprofessionals in the
same bargaining unit, see n. 1, supra, confirm that Congress did
not intend its exclusion of supervisors largely to eliminate
coverage of professional employees.
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
5 "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)."
589
to direct them." Professionals, by definition, exercise
independent judgment, see 29 U. S. C. § 152(12), and most
professionals have authority to assign tasks to other employees and
"responsibly to direct" their work. See NLRB v. ResCare, Inc.,
705 F.2d
1461, 1465 (CA7 1983) (Posner, J.) ("[M]ost professionals have
some supervisory responsibilities in the sense of directing
another's work-the lawyer his secretary, the teacher his teacher's
aide, the doctor his nurses, the registered nurse her nurse's aide,
and so on."). If possession of such authority and the exercise of
independent judgment were sufficient to classify an individual as a
statutory "supervisor," then few professionals would receive the
Act's protections, contrary to Congress' express intention
categorically to include "professional employees."
II 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-
590
vided loyalty" concern is somewhat less urgent for this class of
workers. The Board has therefore determined that the exercise of
professional judgment "to assign and direct other employees in the
interest of providing high quality and efficient service" does not,
by itself, "confer supervisory status." Id., at 494.
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-
591
compassing front-line management prerogatives, on the other, to
resolve cases concerning the supervisory status of, for example,
doctors,6 faculty members,7 pharmacists,S librarians,9 social
workers,lO lawyers,l1 television station
6 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").
7 See Detroit College of Business, 296 N. L. R. B. 318, 320
(1989) (professional employees" '[f]requently 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, 1156 (1975).
8 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").
9 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").
10 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
carefully 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").
11 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,
592
directors,12 and, as this Court has noted, architects and
engineers. See NLRB v. Yeshiva Univ.,
444 U. S. 672, 690, n. 30
(1980) (citing cases). Indicating approval of the NLRB's general
approach to the Act's coverage of professionals, the Court stated
in Yeshiva:
"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-
which direction is incidental to the practice of their
profession, and thus is not the exercise of supervisory authority
in the interest of the Employer." Id., at 1273, n. 9.
12 See Golden-West Broadcasters-KTLA, 215 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."
593
ern Bleacher & Print Works, Inc., 115 N. L. R. B. 787, 791
(1956), enforced,
257 F.2d
235, 239 (CA4 1958); cf. Northcrest Nursing Home, 313 N. L. R.
B., at 494-495 (drawing the analogy between leadpersons and charge
nurses in hospitals and nursing homes). Differentiating the role of
front-line managers from that of leadperson, the Board has placed
some nurses, because of the level of their authority, in the
supervisor category, while ranking others, as in this case, in a
professional (or technical), but not supervisor, class. See cases
cited in
id., at 498, n. 36.
III
Following the pattern revealed in NLRB decisions, the
Administrative Law Judge (ALJ), 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 aideresident
assignments," the nurses "followed old patterns"; indeed, "the
nurses routinely let the aides decide among
594
themselves which aide was to cover which residents." Id., at 70.
The administrator and the director of nursing were "always on call"
and nurses in fact called them at their homes "when non-routine
matters ar[o]se." Id., at 72.
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)P It is a defining task of management to formu-
13 The Board, as the decisions cited in text demonstrate, takes
no unique approach in cases involving nurses. See also cases cited,
supra, at 591592, 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,
595
late and execute labor policies for the shop; correspondingly,
the persons charged with superintending management policy regarding
labor are the "supervisors" who, in the Board's view, act "in the
interest of the employer."
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." 14
"interest of the employer," in nurses' cases. When asked whether
"[i]t is uniquely nurses" who do not act "in the interest of the
employer" when attending to "the needs of the customer," counsel
replied, "No, it is not uniquely nurses." Tr. of Oral Arg. 52.
While counsel continued, when pressed, to say that "[t]he Board has
not applied a theory that's phrased in the same terms to other
categories of professionals,"
ibid., counsel appears to have
been referring to the precisely particularized, "patient care"
version of the inquiry. Counsel added: "What the Board has done is
draw an analogy between ... what nurses do and what other minor
supervisory employees do .... [T]he Board's rule in this case is
fully consistent with the traditional rule that it has applied."
Id., at 53.
14 See 92 Congo 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."
596
The Court does not deny that the phrase "in the interest of the
employer" was intended to limit, not to expand, the category
"supervisor." 15 Yet the reading the Court gives to the phrase
allows it to provide only one example of workers who would not fit
the description: "The language ensures ... that union stewards who
adjust grievances are not considered supervisory employees and
deprived of the Act's protections." Ante, at 579. Section 2(11)'s
expression, "in the interest of the employer," however, modifies
all 12 of the listed supervisory activities, not just the
adjustment of grievances. Tellingly, the single example the Court
gives, "union stewards who adjust grievances," rests on the very
distinction the Board has endeavored to apply in all quarters of
the workplace: one between "management" interests peculiar to the
employer, and the sometimes conflicting interests of
employees.16
15 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 LaborManagement 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.
16 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(11)'s list of supervisory activities). The author of the
amendment that inserted those words
597
Congress adopted the supervisor exclusion to bind to management
those persons "vested with ... genuine management prerogatives,"
Senate Report, at 4, Legislative History 410, i. e., those with the
authority and duty to act specifically "in the interest of the
employer" on matters as to which management and labor interests may
divide. The Board has been faithful to the task Congress gave it, I
believe, in distinguishing the employer's hallmark managerial
interest-its interest regarding labor-management relations-from the
general interest of the enterprise, shared by its professional and
technical employees, in providing high-quality service.
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.
explained, however, that persons having authority "responsibly
to direct" other employees are persons with "essential managerial
duties" who rank "above the grade of 'straw bosses, lead men,
set-up men, and other minor supervisory employees,' as enumerated
in the [Senate] report." 93 Congo Rec. 4678 (1947), Legislative
History 1303 (remarks of Sen. Flanders). As explained above, the
Board has used this same analogy to straw bosses and leadpersons to
determine whether particular nurses are supervisors. See
supra, at 592-593.
598
The Court today also expresses doubt whether "the statute
permits consideration of the potential for divided loyalties."
Ante, at 580 (implying that consideration of this potential would
entail a "unique interpretation [of the statute] ... in the health
care field"). But again, Yeshiva points the other way. The Court's
opinion in Yeshiva acknowledged that the Act's exclusion of
supervisors "grow[s] out of the ... concern ... [t]hat an employer
is entitled to the undivided loyalty of its representatives." 444
U. S., at 682. The Court decided that the Yeshiva University
faculty members were not entitled to the Act's protection,
precisely because their role as "representative" of the employer
presented a grave danger of divided loyalties. The Yeshiva faculty,
the Court stated, was pivotal in defining and implementing the
employer's managerial interests; its "authority in academic matters
[wa]s absolute," and it "determine[d] ... the product to be
produced, the terms upon which it will be offered, and the
customers who will be served." Id., at 686. No plausible equation
can be made between the self-governing Yeshiva faculty, on one
hand, and on the other, the licensed practical nurses involved in
this case, with their limited authority to assign and direct the
work of nurses' aides, pursuant to professional standards.
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.17 The
17 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).
599
Board's endeavor to reconcile the inclusion of professionals
with the exclusion of supervisors, in my view, is not just
"rational and consistent with the Act," NLRB v. Curtin Matheson
Scientific, Inc.,
494
U. S. 775, 796 (1990); it is required by the Act. I would
therefore reverse the contrary judgment of the Court of
Appeals.
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