Kentucky River – Relevant Statutory Provisions

1. Kentucky River – Relevant Statutory Provisions • Sec. 2(3) The term “employee” . . . shall not include. . . any individual employed as a supervisor, . . ... • Sec. 2 (11). The term supervisor means 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 the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment (emphases added).

2. Health Care and Retirement Corp.(Earlier Case) • Broad definition of “supervisors” • use of term “or” in the listing • “in the interest of” means furthering the employer’s interests

3. Kentucky River • Opinion (Scalia w/ Kennedy, O’Connor, Thomas, Rehnquist) • Two Issues – Issue 1 • Burden of proof • Party claming an ee’s supervisory status (employer, in this case) bears burden of proof of supervisory status (in absence of such proof, nonsupervisory, covered status presumed) • Consistent with breadth of coverage under NLRA • Easier for claimant to prove that person(s) fit one or more criteria for a supervisor than for GC to prove a person not a supervisor

4. Kentucky River (cont.) • Two Issues – Issue 2 • Has the employer established that these six employees are supervisors under the Act? • Ee a supervisor, and therefore, excluded from coverage, if he/she meets the following criteria: • Performs at least one of 12 listed functions • Health Care and Retirement case • Performance requires independent judgment • Performance is in interest of employer

5. Kentucky River (cont.) • Two Issues – Issue 2 (cont.) • independent judgment” ambiguous terminology with respect to amount of judgment • “independent judgment” not ambiguous terminology with respect to source of judgment • Board may exercise discretion regarding amount of, but not source of, independent judgment • Board’s finding in Kentucky River that RN’s are not supervisors (within the meaning of NLRA) because their independent judgment to responsibly direct employees based on their expertise and technical training, and not from management’s delegation of authority must be overturned • “responsibly direct” function cannot be treated differently than the other 11 functions

6. Kentucky River (cont.) • Source of employee judgment (professional expertise or employer’s authority) an irrelevant consideration, Board may look only at amount of judgment to determine “independence” • Sec. 2(11) creates no distinction between sources • If direction is provided through independent judgment, ee a supervisor and not covered. • RN’s exercise independent judgment and are therefore excluded

7. Judicial Review Issue • Courts may not directly review unit determination decision by Board • Review can be obtained only by a refusal to bargain

8. Kentucky River (cont.) • Dissent (Stevens w/ Souter, Ginsburg, Breyer) • Terms “responsibly to direct” and “independent judgment” are ambiguous • Interpretation of expert agency entitled to deference when interpreting ambiguous language • Basing a supervisory exclusion on judgment based on professional or technical expertise may nullify professional coverage in Act. • Direction through professional expertise likely to be different than direction through employer’s authority

9. Key Quote • “. . . it is also undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer.”

10. Kentucky River (cont.) • Different considerations in statutory interpretation • Majority • literal wording of statute • Dissent • Consistency among provisions • Supervisory exclusion • Professional employee inclusion • Deference to administering agency