Cite as: 532 U. S. 706 (2001)
Opinion of Stevens, J.
term "independent judgment" does not justify a categorical affirmance of the Sixth Circuit's decision, which rests in part on an erroneous allocation of the burden of proof.10
In any case, I do not agree with the majority's view. Given the Regional Director's findings that the RNs' duties as building supervisors do not qualify them as "supervisors" within the meaning of 29 U. S. C. § 152(11), and that they, " 'for the most part, work independently and by themselves without any subordinates,' " it is absolutely clear that the nurses in question are covered by the NLRA.11 193 F. 3d 444, 457 (CA6 1999). The Court's willingness to treat them as supervisors even if they have no subordinates 12 is particularly ironic when compared to the Board's undisturbed decision to deny supervisory status to the other group of professionals employed by respondent—namely, the 20 rehabilitation counselors who supervise the work of 40 rehabilitation assistants.
10 Even under the Court's approach, since the NLRB might well prevail under the correct allocation of the burden of proof, the appropriate course of action in this case would be to return the case to the NLRB for further proceedings. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974); see also Electrical Workers v. NLRB, 366 U. S. 667 (1961); Ford Motor Co. v. NLRB, 305 U. S. 364 (1939). HCR, on which the majority relies, see ante, at 721-722, is not to the contrary. In that case, unlike in this one, we found no error in the lower court's decision. Here, however, the lower court erred in its allocation of the burden of proof, a fact which would seem to make a remand to the NLRB in order to apply what the majority deems to be the correct legal principle particularly appropriate.
11 Nor do the RNs exercise any of the other supervisorial functions listed in § 152(11). They play no role in assigning staff to shifts on a permanent basis or in setting the staff-to-resident ratio. App. 18-19, 23-24. As noted above, the RNs, whether functioning in their ordinary capacity or as "building supervisors," do not have authority to hire, fire, reward, promote, or independently discipline employees, or to effectively recommend such action. Nor, for that matter, do they evaluate employees or take action that would affect their employment status.
12 Neither the licensed practical nurses nor the rehabilitation assistants report to the RNs. Id., at 30, 34, 45, 61.
729
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007