Court Below: 193 F. 3d 444
When co-respondent labor union petitioned the National Labor Relations Board to represent a unit of employees at respondent's residential care facility, respondent objected to the inclusion of its registered nurses in the unit, arguing that they were "supervisors" under §2(11) of the National Labor Relations Act (Act), 15 U. S. C. §152(11), and hence excluded from the Act's protections. At the representation hearing, the Board's Regional Director placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and included the nurses in the unit. Thereafter, respondent refused to bargain with the union, leading the Board's General Counsel to file an unfair labor practice complaint. The Board granted the General Counsel summary judgment on the basis of the representation determination, but the Sixth Circuit refused to enforce the Board's order. It rejected the Board's interpretation of "independent judgment" in §2(11)'s test for supervisory status, and held that the Board had erred in placing the burden of proving supervisory status on respondent.
1. Respondent carries the burden of proving the nurses' supervisory status in the representation hearing and unfair labor practice proceeding. The Act does not expressly allocate the burden of proving or disproving supervisory status, but the Board has consistently placed the burden on the party claiming that the employee is a supervisor. That rule is both reasonable and consistent with Act, which makes supervisors an exception to the general class of employees. It is not contrary to the requirement that the Board must prove the elements of an unfair labor practice, because supervisory status is not an element of the Board's refusal-to-bargain charge. The Board must prove that the employer refused to bargain with the representative of a properly certified unit; the unit was not properly certified only if respondent successfully showed at the certification stage that some employees in the unit were supervisors. Pp. 3-6.
2. The Board's test for determining supervisory status is inconsistent with the Act. The Act deems employees to be "supervisors" if they (1) exercise 1 of 12 listed supervisory functions, including "responsibly direct[ing]" other employees, (2) use "independent judgment" in exercising their authority, and (3) hold their authority in the employer's interest, §2(11). The Board rejected respondent's proof of supervisory status on the ground that employees do not use "independent judgment" under §2(11) when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." Brief for Petitioner 11. This interpretation, by distinguishing different kinds of judgment, introduces a categorical exclusion into statutory text that does not suggest its existence. The text permits questions regarding the degree of discretion an employee exercises, but the Board's interpretation renders determinative factors that have nothing to do with degree: even a significant judgment only loosely constrained by the employer will not be independent if it is "professional or technical." The Board limits its categorical exclusion with a qualifier that is no less striking: only professional judgment applied in directing less skilled employees to deliver services is not "independent judgment." Hence, the exclusion would apply to only 1 of the listed supervisory functions -- "responsibly to direct" -- though all 12 require using independent judgment. Contrary to the Board's contention, Congress did not incorporate the Board's categorical restrictions on "independent judgment" when it first added "supervisor" to the Act in 1947. The Board's policy concern regarding the proper balance of labor-management power cannot be given effect through this statutory text. Because this Court may not enforce the Board's order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267, 289-290, the Board's error precludes the Court from enforcing its order. Pp. 6-15.
The opinion of the court was delivered by: Justice Scalia
On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit
Under the National Labor Relations Act, employees are deemed to be "supervisors" and thereby excluded from the protections of the Act if, inter alia, they exercise "independent judgment" in "responsibly ... direct[ing]" other employees "in the interest of the employer." 29 U. S. C. §152(11). This case presents two questions: which party in an unfair-labor-practice proceeding bears the burden of proving or disproving an employee's supervisory status; and whether judgment is not "independent judgment" to the extent that it is informed by professional or technical training or experience.
In Pippa Passes, Kentucky, respondent Kentucky River Community Care, Inc., operates a care facility for residents who suffer from mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employs approximately 110 professional and nonprofessional employees in addition to roughly a dozen concededly managerial or supervisory employees. In 1997, the Kentucky State District Council of Carpenters (a labor union that is co-respondent here, supporting petitioner) petitioned the National Labor Relations Board to represent a single unit of all 110 potentially eligible employees at Caney Creek. See National Labor Relations Act (Act) §9(c), 49 Stat. 453, 29 U. S. C. §159(c).
At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were "supervisors" under §2(11) of the Act, 29 U. S. C. §152(11), and therefore excluded from the class of "employees" subject to the Act's protection and includable in the bargaining unit. See §2(3), 29 U. S. C. §152(3). The Board's Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see §3(b), 29 U. S. C. §153(b); 29 CFR §101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See §9(c)(1), 29 U. S. C. §159(c)(1). The Board denied respondent's request for review of the Regional Director's decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees.
Because direct judicial review of representation determinations is unavailable, AFL v. NLRB, 308 U. S. 401, 409-411 (1940), respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§158(a)(1), (5). The Board granted summary judgment to the General Counsel pursuant to regulations providing that, absent newly developed evidence, the propriety of a bargaining unit may not be relitigated in an unfair labor practice hearing predicated on a challenge to the representation determination. 29 CFR §102.67(f) (2000); see Magnesium Casting Co. v. NLRB, 401 U. S. 137, 139-141 (1971) (approving that practice); Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 161-162 (1941) (same).
Respondent petitioned for review of the Board's decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned. The Sixth Circuit granted respondent's petition as it applied to the nurses and refused to enforce the bargaining order. It held that the Board had erred in placing the burden of proving supervisory status on respondent rather than on its General Counsel, and it rejected the Board's interpretation of "independent judgment," explaining that the Board had erred by classifying "the practice of a nurse supervising a nurse's aide in administering patient care" as " `routine' [simply] because the nurses have the ability to direct patient care by virtue of their ...