598
Ginsburg, J., dissenting
The Court today also expresses doubt whether "the statute permits consideration of the potential for divided loyalties." Ante, at 580 (implying that consideration of this potential would entail a "unique interpretation [of the statute] . . . in the health care field"). But again, Yeshiva points the other way. The Court's opinion in Yeshiva acknowledged that the Act's exclusion of supervisors "grow[s] out of the . . . concern . . . [t]hat an employer is entitled to the undivided loyalty of its representatives." 444 U. S., at 682. The Court decided that the Yeshiva University faculty members were not entitled to the Act's protection, precisely because their role as "representative" of the employer presented a grave danger of divided loyalties. The Yeshiva faculty, the Court stated, was pivotal in defining and implementing the employer's managerial interests; its "authority in academic matters [wa]s absolute," and it "determine[d] . . . the product to be produced, the terms upon which it will be offered, and the customers who will be served." Id., at 686. No plausible equation can be made between the self-governing Ye-shiva faculty, on one hand, and on the other, the licensed practical nurses involved in this case, with their limited authority to assign and direct the work of nurses' aides, pursuant to professional standards.
V
The Court's opinion has implications far beyond the nurses involved in this case. If any person who may use independent judgment to assign tasks to others or direct their work is a supervisor, then few professionals employed by organizations subject to the Act will receive its protections.17 The
17 As the Board repeatedly warned in its presentations to this Court: "If all it took to be a statutory supervisor were a showing that an employee gives discretionary direction to an aide, even though done pursuant to the customary norms of the profession, the coverage of professionals would be a virtual nullity." Brief for Petitioner 27; see also id., at 12, Reply Brief for Petitioner 7-8 (filed Jan. 5, 1994).
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