Kentucky River

1
Kentucky River Relevant Statutory Provision

• 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
  employers interests

3
Kentucky River

• Opinion (Scalia w/ Kennedy, OConnor, Thomas,
  Rehnquist)
• Two Issues Issue 1
• Burden of proof
• Party claming an ees 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
• Boards finding in Kentucky River that RNs
  should be excluded because their independent
  judgment to responsibly direct employees based on
  their expertise and technical training, and not
  from managements 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 employers 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.
• RNs 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 employers
  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