NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 19 (1994)

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Cite as: 511 U. S. 571 (1994)

Ginsburg, J., dissenting

to direct them." Professionals, by definition, exercise independent judgment, see 29 U. S. C. § 152(12), and most professionals have authority to assign tasks to other employees and "responsibly to direct" their work. See NLRB v. Res-Care, Inc., 705 F. 2d 1461, 1465 (CA7 1983) (Posner, J.) ("[M]ost professionals have some supervisory responsibilities in the sense of directing another's work—the lawyer his secretary, the teacher his teacher's aide, the doctor his nurses, the registered nurse her nurse's aide, and so on."). If possession of such authority and the exercise of independent judgment were sufficient to classify an individual as a statutory "supervisor," then few professionals would receive the Act's protections, contrary to Congress' express intention categorically to include "professional employees."

II

A

The NLRB has recognized and endeavored to cope with the tension between the Act's exclusion of supervisors and its inclusion of professional employees. See, e. g., Northcrest Nursing Home, 313 N. L. R. B. 491 (1993). To harmonize the two prescriptions, the Board has properly focused on the policies that motivated Congress to exclude supervisors. Accounting for the exclusion of supervisors, the Act's drafters emphasized that employers must have the "undivided loyalty" of those persons, "traditionally regarded as part of management," on whom they have bestowed "such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action." See Senate Report, at 3-4, Legislative History 409-410 (quoted in Northcrest Nursing Home, 313 N. L. R. B., at 491. Accordingly, the NLRB classifies as supervisors individuals who use independent judgment in the exercise of managerial or disciplinary authority over other employees. Id., at 493-494. But because professional employees often are not in management's "front line," the "undi-

589

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