99-1815 NLRB v. Kentucky River Community Care, Inc.

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“The burden of proving the applicability of the supervisory exception… should thus fall on the party asserting it. In addition, it is easier to prove an employee’s authority to exercise 1 of the 12 listed supervisory functions than to disprove an employee’s authority to exercise any of those functions, and practicality therefore favors placing the burden on the party asserting supervisory status. We find that the Board’s rule for allocating the burden of proof is reasonable and consistent with the Act, and we therefore defer to it…

“Applying its rule to this case, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the sec. 9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the sec. 8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, ‘the General Counsel carries the burden of proving the elements of an unfair labor practice,’ which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U.S.C. sec. 556(d); Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-278, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) (rejecting statement to contrary in NLRB v. Transportation Management Corp., supra, at 404, n. 7). Supervisory status, however, is not an element of the Board’s claim in this setting. The Board must prove that the employer refused to bargain with the representative of a unit of ’employees,’ sec. 8(a)(5), 29 U.S.C. sec. 158(a)(5), that was properly certified; the unit was not properly certified (as the respondent contends) only if the respondent successfully demonstrated, at the certification stage, that some employees in the unit were also supervisors. In the unfair labor practice proceeding, therefore, the burden remains on the employer to establish the excepted status of these nurses. Insofar as the Court of Appeals held otherwise, it erred.

“What is at issue is the Board’s contention that the policy of covering professional employes under the Act justifies the categorical exclusion of professional judgments from a term, ‘independent judgment,’ that naturally includes them. And further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees. 511 U.S., at 581. We therefore find the Board’s interpretation unlawful.”

Affirmed.

Local Effect:

The holding concerning the burden of proof is consistent with Seventh Circuit law, NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir.1998); but the holding concerning supervisory status of registered nurses contradicts the Seventh Circuit’s deference to the agency in NLRB v. GranCare, Inc., 170 F.3d 662, 668 (7th Cir.1999).

99-1815 NLRB v. Kentucky River Community Care, Inc.

Scalia, J.; Stevens, J., concurring in part and dissenting in part.

On Certiorari to the United States Court of Appeals for the Sixth Circuit, 193 F.3d 444.