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The NLRB’s test for determining whether an employee is a supervisor is inconsistent with the National Labor Relations Act, the U.S. Supreme Court has ruled. Specifically, the Board misapplied the “independent judgment” factor outlined by the Act as one of three factors defining the supervisory status of employees. Therefore, the Court affirmed an appellate court ruling that the NLRB incorrectly determined that charge nurses were not supervisors and, thus, were properly included in a bargaining unit. NLRB v Kentucky River Community Care, Inc., No. 99-1815. The Court rejected the Board’s unduly narrow application of the “independent judgment” prong of the three-part definition of a “supervisor” under the Act. The Court stated that the Board’s interpretation of “independent judgment” incorrectly distinguishes between different kinds of judgment exerted by employees — a distinction not embodied in the Act, which calls for an analysis of the degree, but not the kind, of judgment employed. Further troubling to the Court was the Board’s restriction of the “independent judgment” analysis to only one of 12 supervisory functions delineated by the Act: “responsibly direct[ing]” other employees. The Act requires the Board to consider the degree of independent judgment used in each of the 12 supervisory functions articulated by the Act. The Court stated, “ There is no apparent textual justification for this asymmetrical limitation, and the Board has offered none.” In its opinion, dated May 29, 2001, the Court also unanimously held that the employer bore the burden of proving supervisory status, rejecting the employer’s assertion that the General Counsel was required to prove that the employees were not supervisors. Even though the NLRA does not expressly allocate which party carries this burden, the Board has consistently and reasonably placed the burden on the party claiming that the employee in question was a supervisor, the Court noted. � 2001, CCH INCORPORATED. All Rights Reserved.

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