Responsible direction and the supervisory status of registered nurses.

• Author: Shanbhag, Nikhil

NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).

The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied the collective bargaining rights the National Labor Relations Act (NLRA) (1) extends to other employees. The Act clearly recognizes that professional employees exercise some level of judgment and discretion. The Act, however, also makes "independent judgment" in the exercise of certain acts (e.g., hiring, firing, and promotion) the touchstone of supervisory status. So the distinction between supervisors and mere professional employees turns on the level of independent judgment exercised in certain capacities; this distinction becomes crucial to determining which employees receive bargaining protection. Reading as de minimis the amount of independent judgment needed to clear the supervisor threshold would remove professionals from the coverage of the Act completely--a result clearly at odds with congressional intent, given the express inclusion of professional employees in the Act. This inherent tension between the inclusion of professional employees and the exclusion of employees who exercise independent judgment has been at the root of much of this conflict.

This Comment examines a recent Supreme Court decision, NLRB v. Kentucky River Community Care, Inc., (2) that exemplifies the struggle over the classification of professional employees, specifically registered nurses, as "supervisors." The Board has consistently tried to classify nurses as nonsupervisory professional employees, while the Court has repeatedly cabined nurses within the class of supervisors. The Board's efforts have been focused on achieving protection for all nurses who exercise any kind of discretion, crafting statutory arguments that would narrowly interpret the supervisory-status requirements. Striking down these interpretive strategies, the Court has rejected broad protection for registered nurses.

This Comment suggests a new interpretive strategy that the NLRB could adopt in order to afford at least some bargaining protection to certain classes of nurses and other professional employees, albeit not the broadest level of protection that the NLRB has previously sought. This strategy counsels focusing on one of the statutory criteria that defines a supervisor, the "responsibly to direct" term, which the NLRB has largely ignored in litigation. The plain text of the Act, standard interpretive tools, and policy considerations of the statute all militate toward differentiating mere professional employees from supervisors, not on the grounds of mere "independent judgment," but via the capacity in which that judgment is exercised. When a professional exercises independent judgment to carry out functions with respect to other employees and is accountable for the results and performance of the other employees, clearly he is responsibly directing these employees. This narrow reading of the "responsibly to direct" term splits the difference between inclusion of professional employees and exclusion of supervisors who exercise "independent judgment," resolving the inherent tension between these two terms. Responsible direction should therefore be the touchstone of supervisory status when the professional employee is not carrying out one of the specific functions that automatically qualify as supervisory.

I

The NLRA generally provides employees with the right to organize and states that its goal is to "encourage[] the practice and procedure of collective bargaining." (3) The Act also requires employers to engage in negotiations with employees who are properly organized under the terms of the statute. (4) While the Act includes so-called "professional employees" within its scope of collective bargaining protection, (5) it excludes "supervisors" from the negotiation protections of the law. A "supervisor" is defined as

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (6) When an employee falls under both the supervisor and professional employee definitions, she is excluded from the protections of the Act. (7)

The Court has always recognized that three conditions must be satisfied for an employee to be considered a supervisor under the Act: (1) The employee holds the authority to engage in any one of the twelve supervisory functions, including "responsibly ... direct[ing]" other employees; (2) the exercise...