Oakwood Healthcare, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 2006

348 N.L.R.B. 686 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 37
686
Oakwood Healthcare, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–
CIO. Case 7–RC–22141
September 29, 2006
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, KIRSANOW, AND WALSH
On February 4, 2002, the Acting Regional Director for
Region 7 issued a Decision and Direction of Election
(pertinent portions of which are attached as an appendix)
finding that the Employer’s charge nurses, whose super-
visory status is in dispute, should be included in the peti-
tioned-for unit of all registered nurses (RNs) working for
the Employer at its Oakwood Heritage Hospital located
in Taylor, Michigan. In accord with Section 102.67 of
the National Labor Relations Board’s Rules and Regula-
tions, the Employer filed a timely request for review. By
Order dated March 5, 2002, the Board granted review
solely with respect to the issue of whether the Em-
ployer’s charge nurses are supervisors under the Act.1
The Employer and the Petitioner filed briefs on review.
On July 25, 2003, the Board issued a notice and invita-
tion to the Employer, the Petitioner, and interested amici
curiae to file briefs addressing the supervisory issue in
this case in light of the Supreme Court’s decision in
NLRB v. Kentucky River Community Care, 532 U.S. 706
(2001).2 The Board sought, inter alia, comments relating
to (1) the meaning of “assign,” “responsibly to direct,”
and “independent judgment,” as those terms are used in
Section 2(11) of the Act; and (2) an appropriate test for
determining the unit placement of employees who take
turns or “rotate” as supervisors. In response, the Em-
ployer, the Petitioner, and a number of amici curiae3 filed

1 On March 8, 2002, the Region conducted the election and im-
pounded the ballots.
2 In this same notice, the Board extended an identical invitation for
the filing of briefs in two other cases raising similar supervisory status
issues. They are Croft Metals, Inc., 348 NLRB No. 38 (2006), and
Golden Crest Healthcare Center, 348 NLRB No. 39 (2006). However,
the Board did not consolidate these three cases for decision.
3 American Federation of Labor and Congress of Industrial Organi-
zations; American Commercial Barge Line; American Hospital Asso-
ciation, et al.; American Nurses Association; American River Transpor-
tation Co.; Associated Builders and Contractors; Building and Con-
struction Trades Department, AFL–CIO; Covenant Healthcare System;
Croft Metals; the General Counsel of the National Labor Relations
Board; Golden Crest; Human Resources Policy Association; Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO; International Brotherhood of Electrical
Workers, Local 4, AFL–CIO; Mariner Health Care Management Co.,
et. al.; Massachusetts Nurses Association; Physicians for Responsible
Negotiation; Salt Lake Regional Medical Center, Inc.; Shorefront Jew-
ish Geriatric Center and Metropolitan Jewish Geriatric Center (a divi-
extensive briefs on these subjects and urged various ana-
lytical methods for interpreting the terms of Section
2(11).
Having considered the record and briefs of the parties
and amici, and the Supreme Court’s decision in Kentucky
River, we refine the analysis to be applied in assessing
supervisory status. That refined analysis honors our re-
sponsibility to protect the rights of those covered by the
Act; hews to the language of Section 2(11) and judicial
interpretation thereof, most particularly the guidance
provided by the Supreme Court in Kentucky River and
other decisions; and endeavors to provide clear and
broadly applicable guidance for the Board’s regulated
community. Applying that analysis in the instant case,
we reverse the decision of the Acting Regional Director
and find that certain charge nurses4 should be excluded
from the unit5 as statutory supervisors.
I. FACTS
The Employer has approximately 181 staff RNs who
provide direct care to patients in 10 patient care units at
Oakwood Heritage Hospital, an acute care hospital with
257 licensed beds.6 The patient care units are behavioral
health, emergency room, intensive care, intermediate
care, medical/surgical east, medical/surgical west, oper-
ating room, pain clinic, post-anesthesia care/recovery,
and rehabilitation. The RNs report to the on-site nursing
manager, clinical managers, clinical supervisors, and
assistant clinical managers—all stipulated supervisors.
In providing patient care, RNs follow the doctors’ orders
and perform tasks such as administering medications,
running blood tests, taking vital signs, observing patients,
and processing admissions and discharges. RNs may
direct less-skilled employees to perform tasks such as

sion of MJG Nursing Homes, Inc.); United Steelworkers of America,
AFL–CIO, et. al.; and the Chamber of Commerce of the United States.
4 We find supervisory status for Linda L. Bennett (behavioral health
unit), Valerie Christensen (behavioral health unit), Kimberly Clark
(behavioral health unit), Pat Conley (medical/surgical east), Elizabeth
Daupan (behavioral health unit), Susan H. Dey (behavioral health unit),
Vicky Lowe (intermediate care unit), Leo Moises (intensive care unit),
Suzannee Mudge (medical/surgical west), Deborah L. Murphy (behav-
ioral health unit), Lourdes Pacot (behavioral health unit), and Liza E.
Saclayan (behavioral health unit).
5 The appropriate unit is:
All full-time and regular part-time contingent and in house flex regis-
tered nurses at the Employer’s facility, Oakwood Heritage Hospital,
located in Taylor, Michigan; but excluding all physicians, technical
employees, other professional employees, business office clerical
employees, support service employees, skilled maintenance employ-
ees, confidential employees, director of surgical services, nursing site
leader, nurse externs, graduate nurse externs, and all managers,
guards, and supervisors as defined in the Act.
6 An additional 55 RNs work out of Heritage’s central staffing of-
fice.
OAKWOOD HEALTHCARE, INC. 687
feeding, bathing, and walking patients. RNs may also
direct employees to perform tests that are ordered by
doctors for their patients.
Many RNs at the hospital serve as charge nurses.
Charge nurses are responsible for overseeing their patient
care units, and they assign other RNs, licensed practical
nurses (LPNs), nursing assistants, technicians, and para-
medics to patients on their shifts.7 Charge nurses also
monitor the patients in the unit, meet with doctors and
the patients’ family members, and follow up on unusual
incidents. Charge nurses may also take on their own
patient load, but those who do assume patient loads will
sometimes, but not always, take less than a full comple-
ment of patients. When serving as charge nurses, RNs
receive an additional $1.50 per hour.
Twelve RNs at the hospital serve permanently as
charge nurses on every shift they work,8 while other RNs
take turns rotating into the charge nurse position. In the
patient care units of the hospital employing permanent
charge nurses,9 other RNs may serve as charge nurses on
the permanent charge nurses’ days off or during their
vacations. Depending on the patient care unit and the
work shift, the rotation of the charge nurse position may
be worked out by the RNs among themselves, or it may
be set by higher-level managers. The frequency and
regularity with which a particular RN will serve as a “ro-
tating” charge nurse depends on several factors (i.e., the
size of the patient care unit in which the RN works, the
number of other RNs who serve as rotating charge nurses
in that unit, and whether the unit has any permanent
charge nurses). However, some RNs do not serve as
either rotating or permanent charge nurses at the hospital.
Most individuals who fit in this category are either new
employees at the hospital10 or those who work in the op-
erating room or pain clinic units. There are also a hand-
ful of RNs at the hospital who choose not to serve as
charge nurses.

7 The charge nurses do not assign employees to the shifts; that func-
tion is done by a staffing office at the hospital.
8 In his decision, the Acting Regional Director inadvertently mis-
stated the number of permanent charge nurses. Emp. Exh. 12 identifies
12, not 11, permanent charge nurses: Linda L. Bennett, Valerie Chris-
tensen, Kimberly Clark, Pat Conley, Elizabeth Daupan, Susan H. Dey,
Vicky Lowe, Leo Moises, Suzanne Mudge, Deborah L. Murphy,
Lourdes Pacot, and Liza E. Saclayan.
9 Behavioral health, intensive care, intermediate care, medi-
cal/surgical east, and medical/surgical west are units with both perma-
nent and rotating charge nurses. Most of the permanent charge nurses
work in the behavioral health unit. Emergency room, post-anesthesia
care/recovery, and rehabilitation units only have rotating charge nurses,
while operating room and pain clinic units do not have any charge
nurses.
10 After approximately 1 year, new RNs are usually deemed eligible
to serve in the charge nurse role.
The Petitioner, joined by several amici, would include
all the charge nurses in the RN unit. The Employer,
joined by other amici, seeks to exclude the permanent
and the rotating charge nurses from the unit on the basis
that they are supervisors within the meaning of Section
2(11) because they use independent judgment in assign-
ing and responsibly directing employees.11 The Acting
Regional Director found that none of the charge nurses
are 2(11) supervisors and directed an election in the RN
unit including them.
II. LEGAL PRINCIPLES
A. Introduction
In 1947, the Supreme Court held in Packard Motor
Car Co. v. NLRB, 330 U.S. 485, that supervisors were
included in the definition of “employee” as used in Sec-
tion 2(3) of the Act. In response, Congress amended the
National Labor Relations Act that same year, adding
Section 2(11) to specifically exclude supervisors from
the Act’s definition of “employee.”
Section 2(11) defines “supervisor” as
any individual having the authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
Pursuant to this definition, individuals are statutory
supervisors if (1) they hold the authority to engage in any
1 of the 12 supervisory functions (e.g., “assign” and “re-
sponsibly to direct”) listed in Section 2(11); (2) their
“exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judg-
ment;” and (3) their authority is held “in the interest of
the employer.”12 Supervisory status may be shown if the
putative supervisor has the authority either to perform a
supervisory function or to effectively recommend the
same. The burden to prove supervisory authority is on
the party asserting it.13
Both the drafters of the original amendment and Sena-
tor Ralph E. Flanders, who proposed adding the term
“responsibly to direct” to the definition of supervisor,14

11 The Employer also argues that the charge nurses have the author-
ity to adjust employee grievances within the meaning of Sec. 2(11).
We adopt the Acting Regional Director’s finding that no evidence of
such authority exists.
12 Kentucky River, supra at 713.
13 Id. at 711–712.
14 NLRB, Legislative History of the Labor Management Relations
Act of 1947, 1304.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD688
agreed that the definition sought to distinguish two
classes of workers: true supervisors vested with “genuine
management prerogatives,” and employees such as
“straw bosses, lead men, and set-up men” who are pro-
tected by the Act even though they perform “minor su-
pervisory duties.” NLRB v. Bell Aerospace Co., 416 U.S.
267, 280–281 (1974) (quoting S. Rep. No. 105, 80th
Cong., 1st Sess., 4 (1947)).15 Thus, the dividing line
between these two classes of workers, for purposes of
Section 2(11), is whether the putative supervisor exer-
cises “genuine management prerogatives.” Those pre-
rogatives are specifically identified as the 12 supervisory
functions listed in Section 2(11) of the Act.16 If the indi-
vidual has authority to exercise (or effectively recom-
mend the exercise of) at least one of those functions,
2(11) supervisory status exists, provided that the author-
ity is held in the interest of the employer and is exercised
neither routinely nor in a clerical fashion but with inde-
pendent judgment.
Whether an individual possesses a 2(11) supervisory
function has not always been readily discernible by either
the Board or reviewing courts. Indeed, in applying Sec-
tion 2(11), the Supreme Court has recognized that
“[p]hrases [used by Congress] such as ‘independent
judgment’ and ‘responsibly to direct’ are ambiguous.”17
As a general principle, the Board has exercised caution
“not to construe supervisory status too broadly because
the employee who is deemed a supervisor is denied
rights which the Act is intended to protect.” Chevron
Shipping Co., 317 NLRB 379, 381 (1995) (internal quo-
tations omitted). However, in applying that principle, the
Board has occasionally reached too far. Indeed, on two
occasions involving the healthcare industry, the industry
at issue in this case, the Supreme Court rejected the
Board’s overly narrow construction of Section 2(11) as
“inconsistent with the Act.”18 Accordingly, although we
seek to ensure that the protections of the Act are not un-
duly circumscribed, we also must be mindful of the legis-

15 Senate Rep. No. 105 stated that the committee took “great care”
that employees excluded from the coverage of the Act “be truly super-
visory.” NLRB, Legislative History of the Labor Management Rela-
tions Act of 1947, 410.
16 See the Report by the Senate Committee on Labor and Public
Welfare cited at S. Rep. No. 105, 80th Cong., 1st Sess., 4–5 (1947),
reprinted in NLRB, Legislative History of the Labor Management
Relations Act, 1947, 410–411 (1985).
17 See NLRB v. Healthcare & Retirement Corp. of America, 511 U.S.
571, 579 (1994).
18 Kentucky River, supra at 721–722 (holding that the Board erred in
finding no “independent judgment” where nurses use ordinary profes-
sional or technical judgment in directing less-skilled employees);
Healthcare & Retirement Corp., 511 U.S. at 576, 584 (holding that the
Board erred in finding a nurse’s supervisory activity that was incidental
to patient care was not exercised “in the interest of the employer”).
lative and judicial constraints that guide our application
and interpretation of the statute. Thus, exercising our
discretion to interpret ambiguous language in the Act,19
and consistent with the Supreme Court’s instructions in
Kentucky River, we herein adopt definitions for the terms
“assign,” “responsibly to direct,” and “independent
judgment” as those terms are used in Section 2(11) of the
Act.
In interpreting those statutory terms, we do not, as the
dissent maintains, blindly adopt “dictionary-driven”
definitions. Rather, we begin our analysis with a first
principle of statutory interpretation that “in all cases in-
volving statutory construction, our starting point must be
the language employed in Congress, . . . and we assume
that the legislative purpose is expressed by the ordinary
meaning of the words used.” INS v. Phinpathya, 464
U.S. 183, 189 (1984) (citations and internal quotation
marks omitted).20 Thus, we eschew a results-driven ap-
proach and we start, as we must, with the words of the
statute. We thereafter consider the Act as a whole and its
legislative history, applicable policy considerations, and
Supreme Court precedent. In so doing, our goal is faith-
fully to apply the statute while providing meaningful and
predictable standards for the adjudication of future cases
and the benefit of the Board’s constituents. We do not,
as the dissent contends, ignore potential “real-world”
consequences of our interpretations. Rather, we simply
decline to engage in an analysis that seems to take as its
objective a narrowing of the scope of supervisory status
and to reason backward from there, relying primarily on
selective excerpts from legislative history.
B. Assign and Responsibly to Direct
Possession of the authority to engage in (or effectively
recommend) any one of the 12 supervisory functions
listed in Section 2(11) is necessary to establish supervi-
sory status. Since the Act delineates 12 separate func-
tions, and since canons of statutory interpretation cau-
tion us to eschew a construction that would result in re-
dundancy, we start from the premise that each supervi-
sory function is to be accorded a separate meaning.21
That the terms “assign” and “responsibly to direct” were

19 “It falls clearly within the Board’s discretion to determine, within
reason, what scope of discretion qualifies.” Kentucky River, supra at
714.
20 See also 2A Sutherland Statutory Construction, § 47.28, at 354
(6th ed. 2000) (“Dictionaries, however, do provide a useful starting
point for determining what statutory terms mean, at least in the abstract,
by suggesting what the legislature could have meant by using particular
terms.”).
21 Ruiz v. Estelle, 161 F.3d 814, 820 (5th Cir. 1998) (citing Crist v.
Crist, 632 F.2d 1226, 1233 fn. 11 (5th Cir. 1980) (stating that courts
must “give effect, whenever possible to all parts of a statute and avoid
an interpretation which makes a part redundant or superfluous.”).)
OAKWOOD HEALTHCARE, INC. 689
not intended to be synonymous is also readily apparent
from the legislative history of the 1947 amendment to the
Act. Senator Flanders, who offered the amendment add-
ing the phrase “responsibly to direct” to Section 2(11),
believed that the amendment addressed an element of
supervisory status missing from an earlier amendment,
which included “assign” as 1 of 11 supervisory func-
tions. NLRB, Legislative History of the Labor Manage-
ment Relations Act of 1947, 103–104. Consequently,
consistent both with the text of the Act and its legislative
history, we ascribe distinct meanings to “assign” and
“responsibly to direct.”
1. Assign
The ordinary meaning of the term “assign” is “to ap-
point to a post or duty.” Webster’s Third New Interna-
tional Dictionary 132 (1981). Because this function
shares with other 2(11) functions—i.e., hire, transfer,
suspension, layoff, recall, promotion, discharge, reward,
or discipline—the common trait of affecting a term or
condition of employment, we construe the term “assign”
to refer to the act of designating an employee to a place
(such as a location, department, or wing), appointing an
employee to a time (such as a shift or overtime period),
or giving significant overall duties, i.e., tasks, to an em-
ployee. That is, the place, time, and work of an em-
ployee are part of his/her terms and conditions of em-
ployment. In the health care setting, the term “assign”
encompasses the charge nurses’ responsibility to assign
nurses and aides to particular patients. It follows that the
decision or effective recommendation to affect one of
these—place, time, or overall tasks—can be a supervi-
sory function.
The assignment of an employee to a certain depart-
ment (e.g., housewares) or to a certain shift (e.g., night)
or to certain significant overall tasks (e.g., restocking
shelves) would generally qualify as “assign” within our
construction. However, choosing the order in which the
employee will perform discrete tasks within those as-
signments (e.g., restocking toasters before coffeemakers)
would not be indicative of exercising the authority to
“assign.” To illustrate our point in the health care set-
ting, if a charge nurse designates an LPN to be the person
who will regularly administer medications to a patient or
a group of patients, the giving of that overall duty to the
LPN is an assignment. On the other hand, the charge
nurse’s ordering an LPN to immediately give a sedative
to a particular patient does not constitute an assignment.
In sum, to “assign” for purposes of Section 2(11) refers
to the charge nurse’s designation of significant overall
duties to an employee, not to the charge nurse’s ad hoc
instruction that the employee perform a discrete task.
Our dissenting colleagues take the view that, for pur-
poses of Section 2(11), an assignment is an act that must
affect “basic” terms and conditions of employment or an
employee’s “overall status or situation.” That assertion
is supported neither by precedent nor the language of the
statute, and we see no basis for superimposing a unique
and heightened standard on the supervisory function of
assigning. It is enough that the assignment affect the em-
ployment of the employee in a manner similar to the
other supervisory functions in the series set forth in Sec-
tion 2(11). For example, there can be “plum assign-
ments” and “bum assignments”—assignments that are
more difficult and demanding than others. The power to
assign an employee to one or the other is of some impor-
tance to the employee and to management as well. Cer-
tainly, in the health care context, the assignment of a
nurse’s aide to patients with illnesses requiring more care
rather than to patients with less demanding needs will
make all the difference in the work day of that employee.
It may also have a bearing on the employee’s opportunity
to be considered for future promotions or rewards. From
the employer’s perspective, matching a patient’s needs to
the skills and special training of a particular nurse is
among those factors critical to the employer’s ability to
successfully deliver health care services. In short, we do
not find the dissent’s interpretation of “assign” to be in
accord with the statutory language.
The dissent responds that the authority to assign em-
ployees to “more onerous or more desirable” tasks
should be “considered in relation to the Section 2(11)
authority to ‘discipline’ or ‘reward.’” We disagree. The
purpose behind assigning an employee to a more de-
manding job may be to see if that employee is up to the
challenge. Far from an imposition of discipline, it could
well be a prelude to advancement. By the same token,
assigning an employee to comparatively easy overall
tasks is not necessarily a reward. It could signal lack of
confidence in the employee’s ability to accomplish any-
thing more challenging. And, quite apart from any of the
foregoing considerations, the assignment of “plum” and
“bum” jobs may well reflect nothing more than the fact
that both sorts of jobs must be done, and somebody must
do them. The fact remains that the authority to deter-
mine which kind of overall tasks an employee will per-
form affects the employee’s terms and conditions of em-
ployment in a significant way that is distinct from the
concepts of “reward” or “discipline.”
The dissent says that our interpretation of “assign” to
include the assignment of employees to significant over-
all tasks violates the canon against redundancy by failing
to draw a line between assigning and directing. That is
not so. As discussed below, direction may encompass ad
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD690
hoc instructions to perform discrete tasks; assignment
does not.
Our dissenting colleagues also criticize our interpreta-
tion of “assign” as somehow inconsistent with the way
the term is used in everyday speech, despite the fact that
the Board has construed the term in precisely this way.22
In their view, “it must be the employees who are being
assigned, not the tasks.” (Emphasis in original.) Thus,
while the dissent takes issue with us first drawing upon
the ordinary meaning of the statutory words used, it re-
lies on overly subtle and debatable grammatical distinc-
tions to interpret the statutory terms. The term “assign”
encompasses the assignment of employees to significant
overall tasks; and the mere fact that, in common usage,
speakers refer interchangeably to assigning employees to
tasks and tasks to employees does not persuade us to
adopt the dissent’s definition of “assign.” And, contrary
to the dissent, the Supreme Court’s Kentucky River deci-
sion does not support their position in this regard.23 In
any event, debating linguistic niceties does little to realis-
tically assist in formulating workable definitions that fit
both the language of Section 2(11) and the overall intent
of the provision.24
Our dissenting colleagues would interpret “assign” to
apply to a determination of an employee’s (1) position,
i.e., his or her job classification, (2) designated work site,
i.e., facility or departmental unit, or (3) work hours, i.e.,
shift. While that interpretation overlaps in part with
ours, it does not adequately differentiate between the
other related supervisory functions of Section 2(11). For
example, instead of interpreting “assign” to include, as
we do, assigning overall tasks, the dissent would require
that the assignment be to an overall job classification.

22 Indeed, our colleagues in fn. 15 of the dissent acknowledge that
our definition of “assign” comports with prior Board precedent, which
defined the term to encompass the assigning of tasks. The prior inclu-
sion of such assignments did not lead to the exclusion of all profession-
als or all charge nurses as statutory supervisors, and there is no reason
to believe it will now.
23 The only portion of the Kentucky River decision our colleagues
cite in support of their position that the word “employees” must serve
as the “grammatical object” of “assign” does not deal with the statutory
function of assigning, but rather addresses the separate function of
responsibly directing other employees. See Kentucky River, supra, 532
U.S. at 720.
24 Oddly, the dissent would rely, for purposes of statutory construc-
tion, not only on debatable syntax generally, but specifically on the
sentence structure of the Employer’s assignment policy, despite the fact
that the Board has long held that job titles and descriptions prepared by
employers are not controlling; rather the Board looks to the authority
actually possessed and the work actually performed by the alleged
supervisor. See, e.g., Heritage Hall, 333 NLRB 458, 458–459 (2001)
(“It is well settled that employees cannot be transformed into statutory
supervisors merely by vesting them with the title or job description of
supervisor.”).
However, the dissent does not explain where the 2(11)
function “assign” ends and the other supervisory function
“transfer” begins. In the dissent’s view, to “transfer”
means, inter alia, to “reassign . . . to a different [job]
classification.” On this view, however, “transfer” be-
comes merely a subset of “assign,” rendering “transfer”
redundant.25
Finally, the dissent also criticizes our interpretation of
“assign” on the ground that it “threatens to sweep almost
all staff nurses outside of the Act’s protection.” As we
stated above, however, we decline to start with an objec-
tive—for example, keeping all staff nurses within the
Act’s protection—and fashioning definitions from there
to meet that targeted objective. We have given “assign”
the meaning we believe Congress intended. We are not
swayed to abandon that interpretation by predictions of
the results it will entail.26 We also do not prejudge what
the result in any given case will be. We shall continue to
analyze each case on its individual facts, applying the
standards set forth herein in a manner consistent with the
Congressional mandate set forth in Section 2(11).
2. Responsibly to Direct
We now address the term “responsibly to direct.” The
phrase “responsibly to direct” was added to Section 2(11)
after the other supervisory functions of Section 2(11)
already had been enumerated in the proposed legislation.
Senator Flanders, who made the proposal to add “respon-
sibly to direct” to Section 2(11), explained that the
phrase was not meant to include minor supervisory func-
tions performed by lead employees, straw bosses, and
set-up men. Rather, the addition was designed to ensure
that the statutory exemption of Section 2(11) encom-
passed those individuals who exercise basic supervision
but lack the authority or opportunity to carry out any of
the other statutory supervisory functions (e.g., where
promotional, disciplinary and similar functions are han-
dled by a centralized human resources department).
Senator Flanders was concerned that the person on the
shop floor would not be considered a supervisor even if
that person directly oversaw the work being done and

25 The dissent does differentiate “promote” from “assign” and “trans-
fer,” but unconvincingly. According to the dissent, “promote” differs
from “assign” and “transfer” in that it entails “a permanent elevation in
rank” (emphasis added). Thus, in the dissent’s stated view, employees
are never demoted, and transfers are never temporary.
26 The dissent criticizes our results-neutral approach to interpreting
“assign,” saying the Board “must . . . calculate the possible conse-
quences of its reading of the Act and . . . weigh them against the evi-
dence of Congressional intent.” In our view, what the Board must do,
and what we have done, is interpret the statutory term “assign,” to the
best of our ability, as we believe Congress intended. If Congress dis-
approves of the results it believes our interpretation might entail, it lies
with Congress to amend the Act accordingly.
OAKWOOD HEALTHCARE, INC. 691
would be held responsible if the work were done badly or
not at all.27 Consequently, the authority “responsibly to
direct” is not limited to department heads as the dissent
suggests. The “department head” may be a person be-
tween the personnel manager and the rank and file em-
ployee, but he or she is not necessarily the only person
between the manager and the employee. If a person on
the shop floor has “men under him,” and if that person
decides “what job shall be undertaken next or who shall
do it,” that person is a supervisor, provided that the direc-
tion is both “responsible” (as explained below) and car-
ried out with independent judgment. See footnote 19,
supra. In addition, as the statute provides and Senator
Flanders himself recognized, the person who effectively
recommends action is also a supervisor.28

27 In proposing his amendment adding the phrase “responsibly to di-
rect,” Senator Flanders commented:
The definition of “supervisor” in this act seems to cover ade-
quately everything except the basic act of supervising. Many of
the activities described in [Section 2(11)] are transferred in mod-
ern practice to a personnel manager or department. The supervi-
sor may recommend more or less effectively, but the personnel
department may, and often does, transfer a worker to another de-
partment or other work instead of discharging, disciplining or
otherwise following the recommended action.
In fact, under some modern management methods, the super-
visor might be deprived of authority for most of the functions
enumerated and still have a personal judgment based on personal
experience, training, and ability. He is charged with the responsi-
ble direction of his department and the men under him. He de-
termines under general orders what job shall be undertaken next
and who shall do it. He gives instructions for its proper perform-
ance. If needed, he gives training in the performance of unfamil-
iar tasks to the worker to whom they are assigned.
Such men are above the grade of “straw bosses, lead men,
set-up men, and other minor supervisory employees” as enumer-
ated in the report. Their essential managerial duties are best de-
fined by the words “direct responsibly,” which I am suggesting.
In a large measure, the success or failure of a manufacturing
business depends on the judgment and initiative of these men.
The top management may properly be judged by its success or
failure in picking them out and in backing them up when they
have been properly selected.
See NLRB, Legislative History of the Labor Management Relations
Act of 1947, 1303. Nothing in the text of the amendment passed by
Congress is at variance with Senator Flanders’ remarks.
28 Our colleagues argue that our “expansive” definition of responsi-
ble direction will convert any worker who instructs a person to perform
a task, no matter how minor, into a supervisor. We disagree. The de
minimis principle obviously applies. For example, if a charge nurse
gives a single ad hoc instruction to an employee to perform a discrete
task, that would not, without more, establish supervisory status. More-
over, even if the instruction is more general and it is repeated, supervi-
sory status will only be found if the party asserting supervisory status
also demonstrates that the purported supervisor is “responsible” for the
directed employees’ performance, and that the exercise of that authority
is not of a merely routine or clerical nature, but requires the use of
“independent judgment,” as those terms are defined herein. The dissent
looks at each term in isolation; we read them together as set forth in the
Act. When considered in context, our definitions cannot fairly be said
Since the enactment of Senator Flanders’ amendment,
the Board rarely has sought to define the parameters of
the term “responsibly to direct.” In Providence Hospi-
tal,29 the Board majority summarized past efforts on the
part of several courts of appeals, namely the First,30
Fifth,31 Sixth,32 Seventh,33 and Ninth34 Circuits, to ascer-
tain the limits of this term. The Board majority in Provi-
dence Hospital concluded that these courts endorsed, for
the most part, an accountability definition for the word
“responsibly” that was consistent with the ordinary
meaning of the word.35 The majority cited to the Fifth
Circuit’s interpretation, which is set forth in NLRB v.
KDFW-TV, Inc., supra at 1278, as follows:
“To be responsible is to be answerable for the dis-
charge of a duty or obligation.” . . . In determining
whether “direction” in any particular case is responsi-
ble, the focus is on whether the alleged supervisor is
“held fully accountable and responsible for the per-
formance and work product of the employees” he di-
rects. . . . Thus, in NLRB v. Adam [&] Eve Cosmetics,
Inc., 567 F.2d 723, 727 (7th Cir. 1977), for example,
the court reversed a Board finding that an employee
lacked supervisory status after finding that the em-
ployee had been reprimanded for the performance of
others in his Department.
The majority in Providence Hospital, however, found it
unnecessary to pass on the courts’ accountability defini-
tion.36 We have decided to adopt that definition.
We agree with the circuit courts that have considered
the issue and find that for direction to be “responsible,”

to “dramatically increase the number of potential statutory supervi-
sors.” See, e.g., Croft, supra, and Golden Crest, supra (decided today
under the Oakwood Healthcare standard and finding lead persons and
charge nurses respectively not to be statutory supervisors).
29 320 NLRB 717 (1996). To the extent that Providence Hospital is
inconsistent with any aspect of our decision in this case, Providence
Hospital and those cases relying on it are overruled.
30 See Northeast Utilities Service Corp. v. NLRB, 35 F.3d 621 (1st
Cir. 1994); Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347,
361 (1st Cir. 1980).
31 See NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir.
1986).
32 See Ohio Power Co. v. NLRB, 176 F.2d 385, 387–388 (6th Cir.
1949), cert. denied 338 U.S. 899 (1949).
33 See NLRB v. Adam & Eve Cosmetics, Inc., 567 F.2d 723, 728 (7th
Cir. 1977).
34 See NLRB v. Fullerton Publishing Co., 283 F.2d 545, 549–550
(9th Cir. 1960).
35 Providence Hospital, 320 NLRB at 728–729. Webster’s New
World Dictionary, Fourth College Edition (1999), defines “responsi-
ble” as “expected or obliged to account; involving accountability.” See
also American Heritage Dictionary of the English Language, Fourth
Edition (2000) (“responsible” means “liable to be required to give
account”).
36 Providence Hospital, supra at 729.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD692
the person directing and performing the oversight of the
employee must be accountable for the performance of the
task by the other, such that some adverse consequence
may befall the one providing the oversight if the tasks
performed by the employee are not performed properly.
This interpretation of “responsibly to direct” is consistent
with post–Kentucky River Board decisions that consid-
ered an accountability element for “responsibly to di-
rect.”37
Thus, to establish accountability for purposes of re-
sponsible direction, it must be shown that the employer
delegated to the putative supervisor the authority to di-
rect the work and the authority to take corrective action,
if necessary. It also must be shown that there is a pros-
pect of adverse consequences for the putative supervisor
if he/she does not take these steps.
Our dissenting colleagues express the concern that our
definition of “responsibly to direct” will result in super-
visory authority being extended to “every ‘person on the
shop floor.’” In our view, however, the emphasis on
accountability contained in the definition will prevent
such an occurrence.
Significantly, the concept of accountability creates a
clear distinction between those employees whose inter-
ests, in directing other employees’ tasks, align with man-
agement from those whose interests, in directing other
employees, is simply the completion of a certain task. In
the case of the former, the dynamics of hierarchical au-
thority will arise, under which the directing employee
will have, if and to the extent necessary, an adversarial
relationship with those he is directing. The directing
employee will rightly understand that his interests, in
seeing that a task is properly performed, are to some ex-
tent distinct from the interests of those under his direc-
tion. That is, in directing others, he will be carrying out
the interests of management – disregarding, if necessary,
employees’ contrary interests. Excluding from coverage
of the Act such individuals whose fundamental align-
ment is with management is at the heart of Section
2(11).38
C. Independent Judgment
In Kentucky River, supra at 713, the Supreme Court
took issue with the Board’s interpretation of “independ-

37 See American Commercial Barge Line Co., 337 NLRB 1070,
1071 (2002); Franklin Home Health Agency, 337 NLRB 826, 831
(2002).
38 We further note that, as discussed below, our interpretation of “in-
dependent judgment” is fundamentally equivalent to prong (c) of the
dissent’s definition of “responsibly to direct.” Thus, in our view, for an
individual “responsibly to direct” under the Act with “independent
judgment,” that individual would need to exercise “significant discre-
tion and judgment in directing” others.
ent judgment” to exclude the exercise of “ordinary pro-
fessional or technical judgment in directing less skilled
employees to deliver services.” That is, in the Board’s
then-extant view, even if the Section 2(11) function is
exercised with a substantial degree of discretion, there
was no independent judgment if the judgment was of a
particular kind, namely, “ordinary professional or techni-
cal judgment in directing less-skilled employees to de-
liver services.” While recognizing that the Board has the
discretion to resolve ambiguities in the Act,39 the Su-
preme Court found that the Board had improperly in-
serted “a startling categorical exclusion into statutory
text that does not suggest its existence.” The Court said
that the Board had gone “beyond the limits of what is
ambiguous and contradicted what in our view is quite
clear.” Id. at 714. The Court held that it is the degree of
discretion involved in making the decision, not the kind
of discretion exercised—whether professional, technical,
or otherwise—that determines the existence of “inde-
pendent judgment” under Section 2(11). Id. We are
guided by these admonitions.
Consistent with the Court’s Kentucky River decision,
we adopt an interpretation of the term “independent
judgment” that applies irrespective of the Section 2(11)
supervisory function implicated, and without regard to
whether the judgment is exercised using professional or
technical expertise. In short, professional or technical
judgments involving the use of independent judgment are
supervisory if they involve one of the 12 supervisory
functions of Section 2(11). Thus, for example, a regis-
tered nurse who makes the “professional judgment” that
a catheter needs to be changed may be performing a su-
pervisory function when he/she responsibly directs a
nursing assistant in the performance of that work.
Whether the registered nurse is a 2(11) supervisor will
depend on whether his or her responsible direction is
performed with the degree of discretion required to re-
flect independent judgment.
To ascertain the contours of “independent judgment,”
we turn first to the ordinary meaning of the term.40 “In-
dependent” means “not subject to control by others.”
Webster’s Third New International Dictionary 1148
(1981). “Judgment” means “the action of judging; the
mental or intellectual process of forming an opinion or
evaluation by discerning and comparing.” Webster’s
Third New International Dictionary 1223 (1981). Thus,
as a starting point, to exercise “independent judgment”

39 See fn. 19.
40 See U.S. v. Ripa, 323 F.3d 73, 81 (2d Cir. 2003), citing Natural
Resources Defense Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d Cir.
2001) (statutory language should be interpreted according to its plain
meaning).
OAKWOOD HEALTHCARE, INC. 693
an individual must at minimum act, or effectively rec-
ommend action, free of the control of others and form an
opinion or evaluation by discerning and comparing data.
As more fully explained below, however, these requisites
are necessary, but not in all instances sufficient, to con-
stitute “independent judgment” within the meaning of the
Act. As we said above, although we start with the “ordi-
nary meaning of the words used,” INS v. Phinpathya,
supra, 464 U.S. at 189, we also consider the Act as a
whole, its legislative history, policy considerations, and
judicial precedent. Here, we must interpret “independent
judgment” in light of the contrasting statutory language,
“not of a merely routine or clerical nature.” It may hap-
pen that an individual’s assignment or responsible direc-
tion of another will be based on independent judgment
within the dictionary definitions of those terms, but still
not rise above the merely routine or clerical. We will
expand upon and illustrate this point below, after a fuller
explanation of the meaning of “independent.”
In our view, and that of the Supreme Court, actions
form a spectrum between the extremes of completely free
actions and completely controlled ones, and the degree of
independence necessary to constitute a judgment as “in-
dependent” under the Act lies somewhere in between
these extremes. As the Court indicated in Kentucky
River, supra at 713–714, there are, at one end of the spec-
trum, situations where there are detailed instructions for
the actor to follow. At the other end, there are other
situations where the actor is wholly free from constraints.
In determining the meaning of the term “independent
judgment” under Section 2(11), the Board must assess
the degree of discretion exercised by the putative super-
visor.
Consistent with the Court’s view, we find that a judg-
ment is not independent if it is dictated or controlled by
detailed instructions, whether set forth in company poli-
cies or rules, the verbal instructions of a higher authority,
or in the provisions of a collective-bargaining agree-
ment.41 Thus, for example, a decision to staff a shift with
a certain number of nurses would not involve independ-
ent judgment if it is determined by a fixed nurse-to-
patient ratio. Similarly, if a collective-bargaining agree-
ment required that only seniority be followed in making
an assignment, that act of assignment would not be su-
pervisory.42

41 See, e.g., Dynamic Science, Inc., 334 NLRB 391, 391 (2001);
Beverly Enterprises v. NLRB, 148 F.3d 1042, 1047 (8th Cir. 1998);
NLRB v. Meenan Oil Co., 139 F.3d 311, 321 (2d Cir. 1998).
42 We do not suggest, however, that so long as detailed instructions
do not dictate or control specific action, that it necessarily follows that
the requisite degree of independence for Sec. 2(11) purposes will have
been established. There may be instances where instructions do not
On the other hand, the mere existence of company
policies does not eliminate independent judgment from
decision-making if the policies allow for discretionary
choices.43 Thus a registered nurse, when exercising
his/her authority to recommend a person for hire, may be
called upon to assess the applicants’ experience, ability,
attitude, and character references, among other factors.
If so, the nurse’s hiring recommendations likely involve
the exercise of independent judgment. Similarly, if the
registered nurse weighs the individualized condition and
needs of a patient against the skills or special training of
available nursing personnel, the nurse’s assignment in-
volves the exercise of independent judgment. As Senator
Flanders remarked, the supervisor determines “who shall
do [the job]” and in making that determination the super-
visor makes “[a] personal judgment based on personal
experience, training, and ability.”44
As stated above, Section 2(11) contrasts “independent
judgment” with actions that are “of a merely routine or
clerical nature.” Thus, the statute itself provides a base-
line for the degree of discretion required to render the
exercise of any of the enumerated functions of 2(11) su-
pervisory. The authority to effect an assignment, for
example, must be independent, it must involve a judg-
ment, and the judgment must involve a degree of discre-
tion that rises above the “routine or clerical.” See, e.g.,
J.C. Brock Corp., 314 NLRB 157, 158 (1994) (quoting
Bowne of Houston, 280 NLRB 1222, 1223 (1986))
(“[T]he exercise of some supervisory authority in a
merely routine, clerical, perfunctory, or sporadic manner
does not confer supervisory status.”). If there is only one
obvious and self-evident choice (for example, assigning
the one available nurse fluent in American Sign Lan-
guage (ASL) to a patient dependent upon ASL for com-
municating), or if the assignment is made solely on the
basis of equalizing workloads, then the assignment is
routine or clerical in nature and does not implicate inde-
pendent judgment, even if it is made free of the control
of others and involves forming an opinion or evaluation
by discerning and comparing data. By contrast, if the
hospital has a policy that details how a charge nurse
should respond in an emergency, but the charge nurse
has the discretion to determine when an emergency exists
or the authority to deviate from that policy based on the
charge nurse’s assessment of the particular circum-

strictly dictate a sequence of actions, but nonetheless constrain the
exercise of discretion below the statutory threshold.
43 See, e.g., NLRB v. Quinnipiac College, 256 F.3d 68, 78 (2d Cir.
2001); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 341 (4th Cir.
1998); and B & B Insulation, Inc., 272 NLRB 1215 fn. 1 (1984).
44 NLRB, Legislative History of the Labor Management Relations
Act of 1947, 1303.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD694
stances, those deviations, if material, would involve the
exercise of independent judgment.
The dissent portends that our analysis in assessing su-
pervisory status under Section 2(11) may exclude “most
professionals” from coverage under the Act. We dis-
agree. An individual is a professional employee under
Section 2(12) of the Act if he/she, inter alia, consistently
exercises discretion and judgment in the performance of
“predominantly intellectual and varied” work.45 On the
other hand, an individual has the status of a supervisor
under Section 2(11) if he/she exercises independent judg-
ment in connection with one or more of the 12 specific
functions listed by that provision of the Act. For exam-
ple, in the case of assignment and direction, even if the
charge nurse makes the professional judgment that a par-
ticular patient requires a certain degree of monitoring, the
charge nurse is not a supervisor unless and until he or she
assigns an employee to that patient or responsibly directs
that employee in carrying out the monitoring at issue.
Thus, a charge nurse is not automatically a “supervisor”
because of his or her exercise of professional, technical,
or experienced judgment as a professional employee.
And it is equally true that his or her professional status
does not prevent the charge nurse from having statutory
supervisory status if he or she exercises independent
judgment in assigning employees work or responsibly
directing them in their work. To hold otherwise would
come dangerously close to recommitting the very error
the Supreme Court corrected in Kentucky River.
D. Persons Who Are Supervisors Part of the Time
Where an individual is engaged a part of the time as a
supervisor and the rest of the time as a unit employee, the
legal standard for a supervisory determination is whether
the individual spends a regular and substantial portion of

45 Sec. 2(12) of the Act provides:
The term “professional employee” means—
(a) any employee engaged in work (i) predominantly intellec-
tual and varied in character as opposed to routine mental, me-
chanical, or physical work; (ii) involving the consistent exercise
of discretion and judgment in its performance; (iii) of such a char-
acter that the output produced or the result accomplished cannot
be standardized in relation to a given period of time; (iv) requiring
knowledge of an advanced type in a field of science or learning
customarily acquired by a prolonged course of specialized intel-
lectual instruction and study in an institution of higher learning or
a hospital, as distinguished from a general academic education or
from an apprenticeship or from training in the performance of
routine mental, manual, or physical processes; or
(b) any employee, who (i) has completed the courses of spe-
cialized intellectual instruction and study described in clause (iv)
of paragraph (a), and (ii) is performing related work under the su-
pervision of a professional person to qualify himself to become a
professional employee as defined in paragraph (a).
his/her work time performing supervisory functions.46
Under the Board’s standard, “regular” means according
to a pattern or schedule, as opposed to sporadic substitu-
tion.47 The Board has not adopted a strict numerical
definition of substantiality48 and has found supervisory
status where the individuals have served in a supervisory
role for at least 10–15 percent of their total work time.49
We find no reason to depart from this established prece-
dent.
III. THE CASE AT BAR
It is well established that the “burden of proving su-
pervisory status rests on the party asserting that such
status exists.” Dean & Deluca New York, Inc., 338
NLRB 1046, 1047 (2003); accord Kentucky River, 532
U.S. at 711–712 (deferring to existing Board precedent
allocating burden of proof to party asserting that supervi-
sory status exists). The party seeking to prove supervi-
sory status must establish it by a preponderance of the
evidence. Dean & Deluca, 338 NLRB at 1047; Bethany
Medical Center, 328 NLRB 1094, 1103 (1999).
As discussed below, we find that the Employer has
failed to establish that its charge nurses possess the au-
thority to “responsibly to direct” employees within the
meaning of Section 2(11). However, we also find that
the Employer has adduced evidence sufficient to estab-
lish that certain of its permanent charge nurses are super-
visors based on their delegated authority to assign em-
ployees using independent judgment. Finally, we find
that the Employer has failed to establish that its rotating
charge nurses, as opposed to the 12 permanent charge
nurses we find to be supervisors, spend a regular and
substantial portion of their work time performing super-
visory functions. Consequently, we exclude only the 12
permanent charge nurses from the unit.
A. Responsible Direction
The Employer alleges that its charge nurses responsi-
bly direct nursing staff by directing them to perform cer-
tain tasks. As part of their duties, the charge nurses are
responsible for checking the crash cart, taking an inven-
tory of narcotics, and providing statistical information to
Heritage’s administrative staff for their shifts. The

46 See, e.g., Brown & Root, Inc., 314 NLRB 19, 21 (1994); Gaines
Electric Co., 309 NLRB 1077, 1078 (1992); and Aladdin Hotel, 270
NLRB 838 (1984).
47 Cf. Rhode Island Hospital, 313 NLRB 343, 349 (1993) (employee
serving as supervisor every fourth weekend is a supervisor) with St.
Francis Medical Center West, 323 NLRB 1046, 1046–1047 (1997)
(employee who does not serve as supervisor according to a schedule is
not a supervisor).
48 See, e.g., Rhode Island Hospital, supra.
49 See Archer Mills, Inc., 115 NLRB 674, 676 (10 percent is suffi-
cient); Swift & Co., 129 NLRB 1391 (1961) (15 percent is sufficient).
OAKWOOD HEALTHCARE, INC. 695
charge nurses may undertake these tasks themselves or
delegate them to another staff member working that shift.
The delegation of these charge-nurse specific tasks is the
sole basis for the Employer’s claim that the charge
nurses responsibly direct the nursing staff.50
We find that the Employer failed to carry its burden of
proving that the charge nurses responsibly direct the
nursing staff within the meaning of Section 2(11). As
explained above, to constitute “responsible” direction the
person performing the oversight must be held account-
able for the performance of the task, and must have some
authority to correct any errors made. The Employer has
not demonstrated that the charge nurses meet this ac-
countability standard. The record reveals no evidence
that the charge nurses must take corrective action if other
staff members fail to adequately check the crash cart,
take the narcotics inventory, or provide the statistical
information to management. There is no indication that
the charge nurses are subject to discipline or lower
evaluations if other staff members fail to adequately per-
form these charge nurse-specific tasks. Instead, the Em-
ployer points to an instance in which it disciplined a
charge nurse for failing to make fair assignments. This
evidence, however, shows that the charge nurses are ac-
countable for their own performance or lack thereof, not
the performance of others, and consequently is insuffi-
cient to establish responsible direction.
B. Assignment
The record establishes that charge nurses assign nurs-
ing personnel to patients. At the beginning of each
shift,51 and as new patients are admitted thereafter, the
charge nurses for each patient care unit (except the emer-
gency room) assign the staff52 working the unit to the
patients that they will care for over the duration of the
shift.
In the emergency room, the process of assigning work
operates differently. There, the charge nurses have pri-
mary responsibilities to “triage” the incoming patients
and keep the other patient care units in the hospital in-
formed about possible admissions from the emergency
room. The charge nurses do not assign nursing personnel
to patients in this department. Rather, the charge nurses
assign employees to geographic areas within the emer-
gency room. In making these assignments, the charge
nurses do not take into account employee skill or the

50 The Employer has expressly disavowed any contention that RNs
in general are supervisors.
51 The clinical managers are responsible for the scheduling of all
nursing staff to a shift.
52 Depending on the unit, the staff could include RNs, licensed prac-
tical nurses, nursing assistants, technicians, mental health workers, and
paramedics.
nature or severity of the patient’s condition. After these
initial assignments, the employees then rotate geographi-
cal locations within the emergency room among them-
selves on a periodic basis.
The charge nurses’ assignment of patients to other
staff and assignment of nurses to specific geographic
locations within the emergency room fall within our
definition of “assign” for purposes of Section 2(11). In
patient care units other than the emergency room, the
actions of the charge nurses involve assigning nurses to
patients in rooms and “giving significant overall tasks to
an employee.” The charge nurses in the emergency room
designate employees to a particular place. The charge
nurses’ assignments determine what will be the required
work for an employee during the shift, thereby having a
material effect on the employee’s terms and conditions of
employment. Unlike the case of Senator Flanders’
“straw bosses, leadmen, and set-up men,” the charge
nurse’s duties of assignment are not “incidental” to the
charge nurse’s own nursing duties. The charge nurse has
his or her own patients, but independently of that, he or
she will assign other nursing personnel to other patients.
Having found that the charge nurses hold the authority
to engage in one of the supervisory functions of Section
2(11), our next step is to determine whether the charge
nurses exercise independent judgment in making these
assignments.
C. Independent Judgment
The charge nurses at the hospital make their assign-
ments by choosing between or among the members of
the staff available on each shift. In addition to the charge
nurse, there are two to six RNs on each shift, depending
on the time of day and the unit, and many of the units
also have licensed practical nurses or other licensed staff
working each shift. In the health care context, choosing
among the available staff frequently requires a meaning-
ful exercise of discretion. Matching a nurse with a pa-
tient may have life and death consequences. Nurses are
professionals, not widgets, and may possess different
levels of training and specialized skills. Similarly, pa-
tients are not identical and may require highly particular-
ized care. A charge nurse’s analysis of an available
nurse’s skill set and level of proficiency at performing
certain tasks, and her application of that analysis in
matching that nurse to the condition and needs of a par-
ticular patient, involves a degree of discretion markedly
different than the assignment decisions exercised by
most leadmen. As discussed below, the record evidence
establishes that a number of the Employer’s charge
nurses exercise independent judgment in assigning other
staff to patients and therefore possess supervisory author-
ity under Section 2(11) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD696
Employer witnesses Brenda Theisen, Carolyn Carney,
Sue Caines, and Nicholas Paul Mikaelian Jr., and Peti-
tioner witness Nancy Coffee principally testified about
how charge nurses at the hospital make their selections
of staff for patient assignments in units other than the
emergency room. The testimony of Employer witness
Deborah Vogel and Petitioner witness Carol Welch fo-
cused on the charge nurses’ assignments in the emer-
gency room.53
As the nursing site leader and director of patient care
services at the Hospital, Brenda Theisen has overall re-
sponsibility for nursing care delivered within the hospi-
tal. She has been associated in various nursing positions
with the hospital since 1985, and is very familiar with the
assignment duties of charge nurses throughout the hospi-
tal, particularly the intermediate care unit based on her
10 years of service working as a staff nurse and later as
nurse manager in that unit. According to her testimony,
the Employer’s general patient care policy guides the
charge nurses in making the patient care assignments at
the hospital. On its face, this written policy is not so
detailed or thorough as to be outcome determinative, but
rather the policy permits the charge nurses, in making
assignments, to take into account “the ability of the pa-
tient to do self care, degree of illness, complexity of
nursing skills required, and the competency and qualifi-
cation of the staff.” Theisen testified that the charge
nurses can choose personnel for assignments based on
judgments as to the particular condition and medical
needs of a given patient and the skill sets or specialized
training of the available staff. Theisen testified, for ex-
ample, that a charge nurse would select a nurse “who is
particularly good [at peritoneal dialysis] to take care of
[a] patient who requires [such treatment]” or assign a
nurse with a proficiency in “vasoactive drug monitoring”
to take care of a patient requiring such attention. Theisen
also testified that charge nurses take into account a host
of other factors in making assignments, including the
amount of time required to perform specific patient care
functions (which, in turn, would limit a nurse’s availabil-
ity to attend to other patients), competence levels, licens-
ing, personalities, and compatibility of staff members.
Like Theisen, Carolyn Carney has a long history of
working at the hospital, with 13 years of service as a
mental health staff nurse. As the assistant clinical man-
ager for the mental health unit, Carney has the opportu-
nity to observe new nurses perform charge nurse duties
during their training period. Carney testified that based

53 The testimony of Employer’s witness Jenna Lynn Ash and Peti-
tioner’s witness Marie Angela Nagel dealt with charge nurse rotation
and grievance-handling issues.
on her observations she determines when the new nurses
are ready to assume the role of charge nurse on their
own. As did Theisen, Carney testified that charge nurses
are required to make informed judgments about their
patients and staff in order to make patient care assign-
ments. As an example, she testified that if a patient in
the behavioral health unit had medical as well as psychi-
atric problems, the charge nurse could exercise her dis-
cretion to assign an RN rather than a mental health
worker to that patient. Similarly, Carney testified that
charge nurses would take into account a myriad of fac-
tors, such as the aggressiveness of the patient and a care
giver’s ability to respond to the same, in making assign-
ment decisions. Carney further testified that there is no
written document that would tell a charge nurse which
particular staff to assign to which patients on any given
day.
Sue Caines, the assistant clinical manager for the
medical/surgical east and medical/surgical west units
since 2000, testified that charge nurses consider specific
patient conditions and needs, staff’s special training or
certifications, the continuity of care, and geographic lo-
cation of the patient’s room54 in making assignments.
She testified, for example, that if a chemotherapy, ortho-
pedic, or pediatric patient is involved, the charge nurse
considers whether the staff to be assigned has the special
training and can perform the necessary care for that type
of patient before making the assignments. She further
testified that a nurse is not consistently assigned to pa-
tients in a certain set of rooms on either the medi-
cal/surgical east or west units.
Nicholas Paul Makaelian Jr., the assistant clinical
manager for in-patient rehabilitation since 2000, testified
about his experience and knowledge relating to charge
nurse’s assignments in his unit. He has made staff as-
signments in his unit. He testified that the charge nurse
takes several factors—such as the nature and severity of
the patient’s condition, patients’ gender-based sensitivi-
ties, patient population number and length of stay,55 and
staff licensing—into consideration when making assign-
ment decisions.
Nancy Coffee has worked as an RN in the intermediate
care unit for 10 years prior to the hearing. She worked a
part-time schedule allowing her to rotate into the charge
nurse position in her unit about 1 day per week. She
testified that the charge nurse in her unit makes staff as-
signments based on several factors. She explained that

54 Caines testified that the medical/surgical west unit is a physically
large unit with two halls with capacity for 25 patients per hall.
55 The rehabilitation unit generally treats patients who have had
strokes or orthopedic problems over an approximate 2-week hospital
stay.
OAKWOOD HEALTHCARE, INC. 697
the charge nurse considers such factors as the patient’s
condition, continuity of care, gender and personality of
the staff and patients, and specific skills and abilities
(especially if flex nurses are temporarily assigned to her
unit). She testified that as charge nurse she reassessed
patient care assignments during a shift because of per-
sonality clashes between a patient and a nurse.
Deborah Vogel, the assistant clinical manager of the
emergency room, and Carol Welch, an emergency room
RN, gave testimony about the assignment authority exer-
cised by the emergency room charge nurses. They testi-
fied that the initial staff assignments in the emergency
room are geographically based. According to their con-
sistent testimony, the emergency room, unlike other in-
patient units of the Hospital, is arranged into three divi-
sions and the charge nurse assigns staff to a division (i.e.
room) on a rotational basis to equalize the workload.
Their testimony reveals that if one area of the emergency
room becomes particularly busy during the shift, the
charge nurse directs the RN assigned to the section for
noncritical patients to assist the RN in the busy section of
the emergency room.
The Employer provided evidence that the charge
nurses at the hospital relied upon their assessments of the
patients’ conditions and needs, the nursing personnel’s
ability, and other factors they deemed relevant depending
on their unit. Witnesses repeatedly testified that the
charge nurses’ assignments are based on “informed judg-
ments” about the patients and staff. For example, there
was testimony that charge nurses take other nurses’ indi-
vidual expertise into account, such as assigning a nurse
who is particularly proficient in administering dialysis to
a kidney patient. In addition, other testimony shows that
in making patient care assignments, the charge nurses
look to whether the available staff has particular skill or
training in dealing with certain kinds of patients, such as
chemotherapy, orthopedic, or pediatric patients. There
was further testimony that the charge nurse tries to assign
the same patients to the same staff if possible, to ensure
continuity of care and familiarity with particular patient
needs.
The Employer demonstrated that the charge nurses ex-
ercise discretion in deciding how to allocate the re-
sources available for the shift. For example, there was
testimony that if a charge nurse assigned a patient who
needed a blood transfusion to an RN, the charge nurse
would not assign that RN to any other seriously ill pa-
tients or a newly admitted patient, because of the close
monitoring required of a patient receiving blood. The
record also shows that in the behavioral health unit, the
charge nurses had to make decisions about how to allo-
cate the differently licensed staff. For example, the
charges nurses in the behavioral health unit had to assess
whether an RN should be assigned to a psychiatric pa-
tient who also had medical problems, as opposed to as-
signing a mental health worker. In addition, the wit-
nesses testified that charge nurses had to determine for
themselves whether to take a patient load and how many
patients to take.
While in the past the Board has found that mere
equalization of workloads does not require the exercise
of independent judgment, here the Employer’s evidence
shows that the charge nurses make assignments that are
both tailored to patient conditions and needs and particu-
lar nursing skill sets, and a fair distribution based upon as
assessment of the probable amount of nursing time each
assigned patient will require on a given shift. Equalizing
workloads requires only that the putative supervisor be
able to assess the quantity of work to be assigned. Here,
the charge nurses assess the quantity of work to be as-
signed, the relative difficulty of the work involved, and
the competence of the staff available to do the work.
Thus, the charge nurse can decide that a particular task is
very difficult for a given nurse to perform, and that fact
must be taken into account when deciding whether to
assign that nurse to other work. Thus, the charge nurses
assign each member of the nursing staff the number and
type of patients that each staff member is capable of han-
dling during the shift. In this context, contrary to the
dissent’s assertion, the process of equalizing work loads
at the hospital involves independent judgment. Wit-
nesses Theisen, Carney, Caines, and Makaelian testified
that the charge nurse considers a variety of factors in
making a particular assignment and must use his or her
own independent judgment in weighing those factors.
Their testimony was corroborated by the Petitioner wit-
ness Coffee’s testimony showing that a balancing of sev-
eral factors occur and no one factor dictates the staff se-
lections made by the charge nurse.
The Employer also has a written policy for assigning
nursing personnel to deliver care to patients. The policy
statement provides that the charge nurses, in making as-
signments, should take into account, i.e., “the ability of
the patient to do self care, degree of illness, complexity
of nursing skills required, and the competency and quali-
fication of the staff.” While this statement guides the
charge nurses’ decision-making process, it is not so de-
tailed as to eliminate a significant discretionary compo-
nent involved in matching nursing personnel to patients.
First, the policy statement does not prescribe a formulary
approach that must be followed by the charge nurses.
Rather, the policy identifies factors that permit individual
input or evaluation based on a given charge nurse’s per-
spective of the situation. That is, the charge nurses draw
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
on their own training and experience to assess such
things as patient acuity, skills complexity, and staff com-
petency, and they make certain judgments using these
assessments. The charge nurses have considerable lati-
tude in weighing such factors in reaching a final decision
on how to assign nursing personnel. Based on this cog-
nitive process, an assignment on that shift will be made.
Second, the policy statement does not articulate all the
factors frequently considered by the charge nurses in
making assignments. For example, the charge nurses
typically take into account continuity of care, even
though that factor is not specified in the Employer’s writ-
ten policy statement on assignments. Thus, the Em-
ployer has shown that, despite the existence of the policy
statement, the charge nurses still must exercise a substan-
tial degree of discretion in making assignments. Phrased
differently, the Employer has shown that charge nurses
exercise a degree of discretion sufficient to constitute
independent judgment, as that term is used in Section
2(11). In our view, where the charge nurse makes an
assignment based upon the skill, experience, and tem-
perament of other nursing personnel and on the acuity of
the patients, that charge nurse has exercised the requisite
discretion to make the assignment a supervisory function
“requir[ing] the use of independent judgment.”56

56 Member Kirsanow agrees with his colleagues’ interpretations of
“assign,” “responsibly to direct,” and “independent judgment.” Addi-
tionally, he joins in their finding, and their analysis in support of the
finding, that the Employer’s charge nurses have not been shown to be
Sec. 2(11) supervisors by virtue of any authority “responsibly to di-
rect.” He also agrees with their conclusion that the Employer’s perma-
nent charge nurses are statutory supervisors by virtue of their authority
to assign nursing staff to patients based on the exercise of independent
judgment. In finding the element of “independent judgment” met here,
however, Member Kirsanow relies on a narrower range of evidence
than do his colleagues. Specifically, he bases his finding of independ-
ent judgment solely on evidence that the charge nurses’ assignments
sometimes involve matching the nurses’ special training or particular
skills with the particular medical needs of patients. Assistant Clinical
Manager Sue Caines testified that charge nurses consider whether any
of the available shift nurses have had special training when deciding
which nurses to assign to pediatric, orthopedic, or “chemo” patients.
Similarly, Brenda Theisen, the nursing site leader and director of pa-
tient care services, testified that charge nurses consider individual
nurses’ skills and abilities in making assignments, stating that a charge
nurse would, for instance, select a nurse “who is particularly good [at
peritoneal dialysis] to take care of [a] patient who requires peritoneal
dialysis,” or assign a nurse with a proficiency in “vasoactive drug
monitoring” to take care of a patient with that particular medical need.
In Member Kirsanow’s view, such determinations clearly rise above the
level of the routine or self-evident. A charge nurse’s analysis of an
available nurse’s skill set and level of proficiency at performing certain
tasks, and her application of that analysis in matching that nurse to the
needs of a particular patient, involves a meaningful act of discretion
and a reasoned determination that goes beyond the obvious or routine.
Accordingly, Member Kirsanow finds that this evidence satisfies the
Employer’s burden to establish that the charge nurses at Oakwood
At the hearing, the parties stipulated that all the charge
nurses at the hospital have the same authority. However,
we are unwilling to accept such a broad stipulation
where, as here, the specific evidence is to the contrary.
The record shows that the charge nurse role in the emer-
gency room unit is structured in such a way as not to
necessitate the exercise of independent judgment. The
evidence shows that the role of the charge nurse differs
in significant respects from the role of the other charge
nurses. Most significantly, the emergency room charge
nurses do not take into account patient acuity or nursing
skill in making patient care assignments. Whereas the
record contains evidence of situations in other units in
which the charge nurses must assess individual profes-
sional or personal attributes of the nursing staff, there is
no similar evidence for the charge nurses in the emer-
gency room unit. Instead, the charge nurses in the emer-
gency room assign the nursing staff to geographic areas
of the emergency room. Furthermore, a charge nurse in
the emergency room testified without contradiction that
the staff nurses rotated assignments, without input from
the charge nurse. This evidence does not show discretion
to choose between meaningful choices on the part of the
charge nurses in the emergency room.
Therefore, we find that the Employer failed to demon-
strate that the charge nurses in the emergency room unit
exercise independent judgment in making patient care
assignments. Although making patient care assignments
is a primary function of the charge nurse in the rest of the
facility, the emergency room charge nurses’ primary
functions are to perform a triage and to keep other units
within the facility informed of possible admissions from
the emergency room. A comparison of the assignments
made by charge nurses in the rest of the facility with the
assignments made by the emergency department charge
nurses serves to emphasize that the former perform su-
pervisory functions with independent judgment and the
latter do not. Because, as discussed above, the exercise
of independent judgment is a necessary element of estab-
lishing supervisory status, we find that the Employer has
failed to prove that the charge nurses in the emergency
room are supervisors, despite the parties’ stipulation. We
shall include the emergency room charge nurses in the
unit.
D. “Rotating” Charge Nurses
As with other aspects of establishing supervisory
status, the burden is on the Employer who asserts super-
visory status to prove regularity and substantiality, i.e.,

Heritage Hospital exercise independent judgment in assigning other
nurses to patients and therefore possess supervisory authority under
Sec. 2(11) of the Act.
OAKWOOD HEALTHCARE, INC. 699
the charge nurse spends a regular and substantial portion
of his/her work time performing supervisory functions.
We find that the Employer has carried its burden of proof
with respect to the 12 permanent charge nurses that are
assigned to the following 5 units: behavioral health, in-
tensive care, intermediate care, medical/surgical east, and
medical/surgical west. The Employer offered uncontra-
dicted testimony that the permanent charge nurses in
those units serve in that capacity on every shift they
work. Indeed, the permanent charge nurses do not really
fit the definition of a “rotating” supervisor. They serve
full-time as supervisors on a regular basis. These RNs
are Linda L. Bennett, Valerie Christensen, Kimberly
Clark, Pat Conley, Elizabeth Daupan, Susan H. Dey,
Vicky Lowe, Leo Moises, Suzanne Mudge, Deborah L.
Murphy, Lourdes Pacot, and Liza E. Saclayan. Accord-
ingly, we shall exclude these individuals from the unit.
In contrast, the Employer has failed to demonstrate
regularity for the “rotating” charge nurses assigned to
behavioral health, intensive care, intermediate care,
medical/surgical east, medical/surgical west, post-
anesthesia care/recovery, and rehabilitation units. The
Employer offered only superficial evidence as to the
regularity with which these 112 nonpermanent or “rotat-
ing” charge nurses serve in the charge nurse role. The
record reveals that none of the units involved have an
established pattern or predictable schedule for when and
how often RNs take turns in working as charge nurses.57
In those units where the RNs decide among themselves
who will serve as charge nurses, the record does not
demonstrate any pattern for these selections. In those
units where the managers are in charge of making as-
signments, the managers likewise do not use any particu-
lar system or order for assigning charge nurses.
The following examples illustrate this lack of regular-
ity. Most RNs work one of three shifts—day, afternoon,
or midnight. In intermediate care unit, a permanent
charge nurse serves in that capacity for 10 out of 14 days
each 2-week pay period on the midnight shift and the
other RNs rotate into the charge nurse position for the
remaining 4 days. On the day shift in intermediate care
unit, the RNs rotate the charge nurse position when the
assistant nurse manager, a stipulated supervisor who usu-
ally does the charge nurse duties, is not there. In the be-
havioral health unit, the RNs on the day shift decide
among themselves at the beginning of each shift who
will be the rotating charge nurse for that day, but there is
no information as to whether they follow any particular
pattern in making these designations. In medical/surgical

57 See, e.g., RN Nancy Coffee’s testimony about the unpredictability
of the charge nurse rotation process in the intermediate care unit.
east unit, the RNs on the day shift keep a log of who
served as charge nurse to determine the rotation, and on
the night shift the RNs decide among themselves who
will be charge nurse for that night. In medical/surgical
west unit, the day shift nurses decide among themselves
who will be charge nurse for that day. On the afternoon
shift in that same unit, two RNs generally trade shifts as
charge nurse, unless they ask one of the other RNs to fill
in when they want a break. In the rehabilitation unit, the
assistant clinical manager, a stipulated supervisor,
chooses in no particular order who will serve as charge
nurse for each shift. Likewise, for the remaining shifts
and units not mentioned above, no further evidence of a
pattern or structured schedule was offered by the Em-
ployer.
In the absence of a sufficient showing of regularity for
assigning the “rotating” charge nurses, we need not de-
cide whether these RNs possess the “rotating” charge
nurse duties for a “substantial” part of their work time.
Accordingly, we shall include in the unit, as non-
supervisors, the 112 RNs who are not permanent charge
nurses but rather irregularly rotate through the charge
nurse position at the hospital.
CONCLUSION
In interpreting the statutory terms “assign,” “responsi-
bly to direct,” and “independent judgment” as set forth in
this decision, we have endeavored to provide clear and
broadly applicable guidance for the Board’s regulated
community. Our dissenting colleagues predict that our
definitions will “create a new class of workers” who are
excluded from the Act but do not exercise “genuine pre-
rogatives of management.” We anticipate no such sea
change in the law, and will continue to assess each case
on its individual merits. In deciding this case, moreover,
we intentionally eschewed a results-oriented approach;
rather, we analyzed the terms of the Act and derived defi-
nitions that, in our view, best reflect the meanings in-
tended by Congress in passing Section 2(11) and would
best serve to effectuate the underlying purposes of the
Act. If our adherence to the text of and intent behind the
Act should lead to consequences that some would deem
undesirable, the effective remedy lies with the Congress.
In this particular case, we have concluded that Linda
L. Bennett (behavioral health unit), Valerie Christensen
(behavioral health unit), Kimberly Clark (behavioral
health unit), Pat Conley (medical/surgical east), Eliza-
beth Daupan (behavioral health unit), Susan H. Dey (be-
havioral health unit), Vicky Lowe (intermediate care
unit), Leo Moises (intensive care unit), Suzanne Mudge
(medical/surgical west), Deborah L. Murphy (behavioral
health unit), Lourdes Pacot (behavioral health unit), and
Liza E. Saclayan (behavioral health unit) are statutory
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
supervisors. Accordingly, we shall remand this case to
the Regional Director for further processing in accor-
dance with this decision.
ORDER
The National Labor Relations Board orders that this
proceeding be remanded to the Regional Director to open
and count the ballots of all eligible voters, to prepare a
tally of ballots, and to issue the appropriate certification
or take other appropriate action in accord with this Deci-
sion and Order.
MEMBERS LIEBMAN AND WALSH, dissenting in part and
concurring in part in the result.
Today’s decision threatens to create a new class of
workers under Federal labor law: workers who have nei-
ther the genuine prerogatives of management, nor the
statutory rights of ordinary employees. Into that cate-
gory may fall most professionals (among many other
workers), who by 2012 could number almost 34 million,
accounting for 23.3 percent of the work force.1 “[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.”2
If the National Labor Relations Act required this re-
sult—if Congress intended to define supervisors in a way
that swept in large numbers of professionals and other
workers without true managerial prerogatives—then the
Board would be dutybound to apply the statute that way.
But that is not the case. The language of the Act, its
structure, and its legislative history all point to signifi-
cantly narrower interpretations of the ambiguous statu-
tory terms “assign . . . other employees” and “responsibly
to direct them” than the majority adopts. The majority
rejects what it calls a “results-oriented approach” in in-
terpreting the Act. But the reasonableness of the major-
ity’s interpretation can surely be tested by its real-world
consequences. Congress cared about the precise scope of
the Act’s definition of “supervisor,” and so should the
Board. Instead, the majority’s decision reflects an unfor-
tunate failure to engage in the sort of reasoned decision-
making that Congress expected from the Board, which
has the “primary responsibility for developing and apply-
ing national labor policy.” NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 786 (1990).3

1 Bureau of Labor Statistics, U.S. Department of Labor, Occupa-
tional Projections and Training Data, 2004–2005 Edition (Table III-1)
72, available at http://www.bls.gov/emp/optd/home.htm.
2 NLRB v. Res-Care, Inc., 705 F.2d 1461, 1465 (7th Cir. 1983)
(opinion by Circuit Judge Posner).
3 Repeatedly, the majority accuses us of seeking to analyze the stat-
ute in service of a predetermined objective: narrowing the scope of
I.
This case involves the interpretation of three terms in-
corporated in Section 2(11) of the Act, the statutory defi-
nition of a “supervisor”: (1) “assign . . . other employ-
ees;” (2) “responsibly to direct them [other employees];”
and (3) “independent judgment.”4 There would seem to
be no dispute that these terms are ambiguous and thus
open to interpretation, as the Supreme Court has ob-
served.5
Where statutory language is ambiguous, it is not
enough to consult the dictionary. As the Supreme Court
has recently explained:
The definition of words in isolation . . . is not necessar-
ily controlling in statutory construction. A word in a
statute may or may not extend to the outer limits of its
definitional possibilities. Interpretation of a word or
phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the
analysis.
Dolan v. U.S. Postal Service, ___ U.S. ___, 126 S.Ct. 1252,
1257 (2006). See, e.g., NLRB v. Lion Oil Co., 352 U.S. 282,
288–289 (1957) (articulating similar principles with respect
to interpretation of National Labor Relations Act).
In this case, a narrow focus on dictionary definitions of
individual words in isolation leads the majority astray.6
If we read the whole statutory text, consider the context
and purpose of the National Labor Relations Act, and
consult authoritative legislative history, then the major-

“supervisor” and preserving the employee status of staff nurses. We
reject the accusation. As stated above, our interpretation is based on the
language of the Act and its legislative history, and it preserves the
essence of decades of common understanding of the terms “employee”
and “supervisor.” Not surprisingly, therefore, our conclusion is essen-
tially a conservative one. Our colleagues, by contrast, define the statu-
tory terms in an expansive manner unmoored to history.
4 Sec. 2(11) provides that:
The term “supervisor” means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively
recommend such action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
5 See, e.g., NLRB v. Kentucky River Community Care, 532 U.S. 706,
713, 717 fn. 2 (2001) (noting ambiguity of “independent judgment” and
“responsibly to direct”); NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 579 (1994) (same). See also Providence Hos-
pital, 320 NLRB 717, 727 (1996) (discussing alternative interpretations
of “assign”).
6 As Judge Learned Hand remarked, “it is one of the surest indexes
of a mature and developed jurisprudence not to make a fortress of the
dictionary; but to remember that statutes always have some purpose or
object to accomplish.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.
1945).
OAKWOOD HEALTHCARE, INC. 701
ity’s statutory interpretation is revealed as untenable.
Despite its claim to the contrary, the majority proceeds as
if the “ordinary meaning of the words used” in Section
2(11) can dictate a choice among potential alternative
interpretations. But where the words of a statute are am-
biguous, the text alone cannot tell us which interpretation
is best and why. The majority never offers a clear and
carefully reasoned explanation of its choices.
Certainly, we are constrained by the decisions in Ken-
tucky River and Health Care & Retirement, supra, where
the Supreme Court rejected the Board’s prior attempts to
devise an approach to supervisory issues under the Act,
which focused on the statutory phrases “in the interest of
the employer” (Health Care & Retirement) and “inde-
pendent judgment” (Kentucky River).7 The Court’s deci-
sions require respect for the text and structure of Section
2(11), which the Board’s interpretation may not contra-
dict. But the Court did not dictate the largely dictionary-
driven approach taken by the majority. Nor did it hold
that the Board may not be guided by the structure of the
Act as a whole, by its legislative history, or by policy
concerns.8 Indeed, in the words of one academic com-
mentator, Kentucky River
has reopened, rather than settled, the issue of where and
how to draw the line between “employees” and “super-
visors”. . . . At the least, it will entail a change in the
Board’s analytical methodology. . . .
Weiss, Kentucky River at the Intersection, supra, at 395.
As will become clear, the majority’s interpretations of
“assign . . . other employees” and “responsibly to direct”
are flawed purely with reference to the text and structure
of the statute. Those interpretations violate the syntax of
Section 2(11), as well as the canons of statutory con-
struction.
The majority fails, as well, to take account of the Act’s
explicit recognition that professionals, and certain per-
sons who perform work under the supervision of profes-
sionals, may be statutory employees9—a factor that

7 For a critical history of the development of the law in this area, see
Marley S. Weiss, Kentucky River at the Intersection of Professional
and Supervisory Status—Fertile Delta or Bermuda Triangle? in Labor
Law Stories 353 (Laura J. Cooper & Catherine L. Fisk, eds. 2005).
8 In Kentucky River, for example, the Court observed that the:
problem with the [Board’s] argument is not the soundness of its labor
policy (the Board is entitled to judge that without our constant sec-
ond-guessing . . .). . . . It is that the policy cannot be given effect
through this statutory text.
532 U.S. at 720 (citation omitted).
9 Sec. 2(3) provides that the “term ‘employee’ shall include any em-
ployee.” 29 U.S.C. § 152(3). Sec. 2(12), in turn, defines “professional
employee.” 29 U.S.C. § 152(12). Under Sec. 9(b), finally, professional
employees are granted the right to vote on whether, as a group, they
surely weighs against a broad interpretation of supervi-
sory functions as defined in the statute, given the general
oversight that professionals typically exercise over less-
skilled employees.10
In turn, the majority gives little, if any, weight to the
context and purpose of the Act’s definition of a supervi-
sor, as reflected in the legislative history of the Taft-
Hartley Act, which overruled the Supreme Court’s deci-
sion in Packard Motor Car Co. v. NLRB, 330 U.S. 485
(1947), and added Section 2(11) to the statute.11 The
definitive report of the Senate Committee on Labor and
Public Welfare explained that:
A recent development which probably more than
any other single factor has upset any real balance of
power in the collective-bargaining process has been
the successful efforts of labor organizations to in-
voke the Wagner Act for covering personnel, tradi-
tionally regarded as part of management, into or-
ganizations composed of or subservient to the unions
of the very men they were hired to supervise.
. . .
In drawing an amendment to meet this situation,
the committee has not been unmindful of the fact
that certain employees with minor supervisory duties
have problems which may justify their inclusion in
that act. It therefore distinguished between straw
bosses, leadmen, set-up men, and other minor super-
visory employees, on the one hand, and the supervi-
sor vested with such genuine management preroga-
tives as the right to hire or fire, discipline, or make
effective recommendations with respect to such ac-
tion.
. . .
It is natural to expect that unless this Congress
takes action, management will be deprived of the
undivided loyalty of its foremen.
S. Rep. No. 105, 80th Cong., 1st Sess. 4-5 (1947) (emphasis
added), reprinted in National Labor Relations Board, Legis-
lative History of the Labor Management Relations Act of
1947, 410–411 (1985) (cited as Legislative History).12

wish to be included in a bargaining unit with non-professional employ-
ees. 29 U.S.C. § 159(b).
10 Cf. NLRB v. Yeshiva University, 444 U.S. 672, 690 (1980) (dis-
avowing broad exclusion of managerial employees “that would sweep
all professionals outside the Act in derogation of Congress’ expressed
intent to protect them”).
11 See NLRB v. Bell Aerospace Co., 416 U.S. 267, 275–283 (1974)
(discussing historical development of Sec. 2(11), including legislative
history).
12 The Senate committee report represents the sort of authoritative
legislative history that the Supreme Court traditionally has consulted.
See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 209 fn. 16 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
The legislative history explains that Congress “exer-
cised great care, desiring that the employees . . . excluded
from the coverage of the act be truly supervisory.” Legis-
lative History, supra at 425 (Senate Report No. 105)
(emphasis added). The Board must be sensitive, then, to
the distinction between “minor supervisory employees”
(persons Congress intended to treat as employees) and
the equivalent of “foremen” (persons Congress intended
to exclude from statutory coverage).13 That distinction is
especially significant with respect to the supervisory
function of “assign[ing] . . . other employees.” With
respect to the statutory phrase “responsibly to direct,” in
turn, there is authoritative legislative history that is di-
rectly on point, illuminating a phrase that was added to
the bill by a floor amendment in the Senate and that must
be regarded as the sponsor’s own term of art and inter-
preted in that light.
As we will explain, our disagreement with the majority
on the interpretation of “assign” focuses on the treatment
of task assignments made to employees, which we view
as a quintessential function of the minor supervisors
whom Congress clearly did not intend to cover in Section
2(11). As to responsible direction, we differ principally
concerning the scope and scale of the authority required
to satisfy the statutory test. In our view, the phrase “re-
sponsibly to direct” was intended to reach persons who
were effectively in charge of a department-level work
unit, even if they did not engage in the other supervisory
functions identified in Section 2(11). Our differences
with the majority might seem arcane and insignificant.
But the real-world consequences of the competing inter-
pretations, in terms of who is (and is not) a statutory su-
pervisor, could prove dramatic.
II.
The majority’s approach seems based on the premise
that any statutory interpretation that does not contradict
the text and structure of the Act is sufficient, even if
competing interpretations more accurately reflect original
Congressional intent and better serve the policy interests
underlying the Act. More is required to satisfy an ad-
ministrative agency’s obligation to engage in reasoned
decision-making.14 As we explain next, the majority’s
reading of the key terms is both inconsistent with the
statutory text and structure and inferior to alternative

13 See Legislative History, supra at 1537 (Congressional Record
statement of Senator Taft, principal sponsor, observing that bill “con-
fined the definition of supervisor to individuals generally regarded as
foremen and employees of like or higher rank”).
14 See, e.g., Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S.
359, 374 (1998) (“Not only must an agency’s decreed result be within
the scope of its lawful authority, but the process by which it reaches
that result must be logical and rational”).
interpretations, if other indications of Congressional in-
tent are considered.
A. “Assign . . . other employees”
“The Board has never fully resolved whether ‘assign-
ment’ is limited to assigning individual workers to shifts,
departments, and job classifications, or whether it also
reaches assigning individual tasks to a worker.” 15 Today,
the majority endeavors to resolve that question, by hold-
ing that assignment does reach at least some task as-
signments. Careful consideration demonstrates that the
majority’s interpretation of the statutory phrase “assign
. . . other employees” is flawed in several respects, at
least insofar as it addresses task assignment. The major-
ity’s interpretation violates the syntax of Section 2(11), it
is inconsistent with the canon of statutory construction
against redundancy, and it leads to treating “minor su-
pervisory employees” as statutory supervisors, a result
Congress disclaimed. Depending on its application, the
majority’s interpretation threatens to exclude almost all
hospital nurses—as well as countless professionals and
others who oversee less-skilled coworkers—from the
protection of the Act.
1.
The majority begins by observing that the “ordinary
meaning of the term ‘assign’ is ‘to appoint to a post or
duty.’” It then interprets the term in its context, as one of
a series of supervisory functions listed in Section 2(11)
that share the “common trait of affecting a term or condi-

15 Weiss, supra, Kentucky River at the Intersection at 365.
We recognize that the Board has on occasion treated the assignment
of tasks, including the assignment of patients to health care employees,
as “assignments” within the meaning of Sec. 2(11). But the earlier
cases offer little discussion and no rationale for this result. Mostly, the
Board just assumed that “assign” covers such task or patient assign-
ments, and actually resolved the alleged supervisor’s statutory status on
other grounds, more recently the “independent judgment” requirement.
See, e.g., Nurses United for Improved Patient Healthcare, 338 NLRB
837, 837 fn. 1, 839 (2003) (finding that a clinical coordinator who
assigned patients to nurses was not a supervisor because the assign-
ments were “routine”); Youville Health Care Center, 326 NLRB 495,
496 (1998) (finding charge nurses who held authority “to assign staff to
patients, to assign tasks to staff” not to be supervisors because they did
not exercise “independent judgment”); Northcrest Nursing Home, 313
NLRB 491, 504-505 (1993) (finding that charge nurses came within the
scope of Sec. 2(11), citing their authority “to assign aides to specific
tasks” but that it was not done “in the interest of the employer”), abro-
gated on other grounds by NLRB v. Health Care & Retirement Corp. of
America, supra. Cf. Doctors’ Hospital of Modesto, 183 NLRB 950, 951
(1970) (“assign” as denoting an assignment to work in a particular
department or unit).
The Board’s past reluctance to authoritatively define the scope of
“assign” is not surprising in light of the Board’s prior recognition that
the term is ambiguous and its prior view that other terms in Sec. 2(11)
were often dispositive of supervisory status. See Providence Hospital,
320 NLRB 717, 727 (1996).
OAKWOOD HEALTHCARE, INC. 703
tion of employment.” Accordingly, it construes “assign”
to refer to the act of:
designating an employee to a place (such as location,
department, or wing); appointing an employee to a time
(such as a shift or overtime period); or giving signifi-
cant overall duties, i.e., tasks, to an employee.
With respect to task assignments, the majority distinguishes
between a “designation of significant overall duties” and an
“ad hoc instruction that the employee perform a discrete
task.” But the majority’s decision makes clear that even a
single assignment of daily duties—in contrast, for example,
to designating the employee’s job classification, which en-
tails the expected performance of certain tasks during the
employee’s tenure—would satisfy its test. (Moreover the
majority holds that, for purposes of defining the supervisory
function responsible direction, “direction may encompass ad
hoc instructions to perform discrete tasks.”16
Contrary to the majority, Section 2(11) cannot prop-
erly be read to encompass task assignments, whether the
assignment of discrete individual tasks or of significant
overall tasks (in the majority’s broad sense).
Using the dictionary definition of “assign” adopted by
the majority (“to appoint to a post or duty”), the more
natural reading would limit the phrase “assign employ-
ees” to a significant employment decision on the order of
determining (1) an employee’s position with the em-
ployer (in most settings, identified by job classification);
(2) designated work site (i.e., facility or departmental
unit), or (3) work hours (i.e., shift). This limited reading
better fits the idea of appointing an employee to a post or
duty.
It is further supported by the syntax of the whole statu-
tory phrase: “assign . . . other employees.” As the Su-
preme Court’s Kentucky River decision confirms, the
word “employees” serves as the grammatical object of
each of the verbs identifying supervisory functions in
Section 2(11).17 In short, it must be the employees who
are being assigned, not the tasks. In common speech, one

16 Thus, what the majority gives with one hand (limiting, somewhat,
the definition of one supervisory function, “assign”), it takes away with
the other (expansively defining another function, “responsibly direct”).
The majority provides an example in discussing the statutory phrase
“independent judgment,” where it says that a “registered nurse who
makes the ‘professional judgment’ that a catheter needs to be changed
may be performing a supervisory function when he/she responsibly
directs a nursing assistant in the performance of that work.”
17 See Kentucky River, supra, 532 U.S. at 720 (observing that
“[p]erhaps the Board could offer a limiting interpretation of the super-
visory function of responsible direction by distinguishing employees
who direct the manner of others’ performance of discrete tasks from
employees who direct other employees, as § 152(11) requires”) (em-
phasis added in part).
generally refers to assigning tasks to employees. In the
healthcare sector, for example, nursing tasks are com-
monly distributed by assigning patients to individual
nurses and other direct care staff. In the present case,
notably, the Employer’s written assignment policy states
that “[a]n RN must assign the care of each patient to
other members of the healthcare team” (E. Exh. 7; em-
phasis added). Its listing of charge nurse responsibilities
similarly indicates that charge nurses “make daily pt [pa-
tient] assignments to RNs, LPNs, and NA [nursing assis-
tant] and Secretary” (E. Exh. 5; emphasis added).
2.
Reading the phrase “assign . . . other employees” in its
statutory context confirms that it contemplates something
beyond mere task assignment. The majority recognizes
the need for such a contextual interpretation, but its ac-
tual reading misses the mark. The majority asserts that
each of the supervisory functions listed in Section
2(11)—”hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline”—”affect[s] a
term or condition of employment.” In fact, the listed
functions do more. The terms in this series speak either
to altering employment tenure itself (“hire,” “suspend,”
“lay off,” “recall,” “discharge”) or to actions that affect
an employee’s overall status or situation (“promote,”
“reward,” “discipline,” “transfer”).18
Viewed as a member of this series, “assign” must de-
note authority to determine the basic terms and condi-
tions of an employee’s job, i.e., position, work site, or
work hours. Indeed, no other Section 2(11) duty in the
series addresses this elementary supervisory function.
“Assign” is the corollary to the authority to “transfer”
employees (i.e., to reassign them to a different classifica-
tion, location, or shift).19 By contrast, the act of assign-
ing tasks—whether on a daily basis or task-by-task20—

18 Contrary to the majority’s assertion, we are not “superimposing a
unique and heightened standard on the supervisory function of assign-
ing.” As does the majority, we seek to construe “assign” as one mem-
ber of a series of terms (the other Sec. 2(11) supervisory functions) that
have a common nature.
We differ from the majority in our view of how to describe what the
terms have in common. For the majority, the “common trait” is merely
“affecting a [i.e., any] term or condition of employment.” As we point
out below, our contrasting focus on the authority to affect employee
tenure or status is consistent with the Board’s traditional approach in
defining supervisors, which the Taft-Hartley Congress endorsed.
19 “Promote,” in turn, is distinct from “assign” and “transfer” in en-
tailing a permanent elevation in rank.
20 Common sense belies the majority’s apparent suggestion that a
statutory line may be drawn between making general task assignments
at the beginning of the day (e.g., designating an LPN to regularly ad-
minister medications to a group of patients) and making discrete as-
signments one at a time as the day goes by (e.g., the order to give a
sedative to a particular patient). Whether a nurse or nursing assistant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
from among those already included within an employee’s
overall job responsibilities effects no real change in basic
terms and conditions of employment. That employees
may perceive certain tasks to be more onerous or more
desirable is a fact that appropriately is considered in rela-
tion to the Section 2(11) authority to “discipline” or “re-
ward.”
3.
As a matter of statutory construction, treating task as-
signments as a supervisory function leads to unaccept-
able results.
First, it violates the canon against redundancy.21 As-
signing tasks to an employee is essentially the same thing
as directing the employee to do them. As the Board has
observed, the “distinction between assignment and direc-
tion in these circumstances is unclear.” Providence Hos-
pital, 320 NLRB 717, 727 (1996). “Certainly there are
times when the assignment of tasks overlaps with direc-
tion. For example, ordering a nurse to take a patient’s
blood pressure could be viewed as either assigning the
nurse to that procedure or directing the nurse in the per-
formance of patient care.” Id. By defining “assign” to
mean the assignment of tasks, the majority makes the
statutory term “direct” (for which it never offers a spe-
cific definition) superfluous. Indeed, if every worker
who could assign tasks to an employee were a statutory
supervisor, then (as discussed below) Senator Flanders
would surely have felt no need to close the perceived
loophole in Section 2(11) by adding the phrase “respon-
sibly direct.”22 Senator Flanders observed that in some
workplaces, many of the other supervisory functions
listed were performed by personnel officials. But it is
hard to imagine a workplace where a personnel manager,
away from the shop floor, made mere task assignments.
The majority’s interpretation, then, subverts the clear
intent of Congress to base supervisory status on only an
assignment to a position, work site, or shift and/or on a
limited kind of direction, as reflected in the phrase “re-
sponsibly to direct.”
Second, the majority’s construction is inconsistent
with the Congressional intent to define “supervisor” to

ends up administering medicine to patients as a result of being assigned
the task at the beginning of the day, or does so as a result of receiving
several discrete task assignments during the course of the day, the
distinction has no practical difference, from either the perspective of
the person assigning the tasks or the person to whom they are assigned.
21 See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (applying
canon).
22 The majority acknowledges the canon against redundancy, and, in
that connection, recognizes the significance of Senator Flanders’ ra-
tionale for his amendment. It nevertheless offers an interpretation of
“assign” that leads to just the problem it purports to avoid.
include “foremen,” but to exclude “straw bosses, lead-
men, set-up men, and other minor supervisory employ-
ees,” as the Senate committee report explained. As evi-
denced in the Board’s pre-Taft-Hartley Act case law (in-
cluding decisions cited positively in the Senate report),
distributing the day’s work and assigning tasks to a crew
of employees was typical of the type of responsibility
held by those “minor supervisors” who were to remain
within the Act’s protection.23 The defining characteristic
of such minor supervisors, in turn, was that their supervi-
sory duties were incidental to their production duties, in
contrast to foremen. A contemporary reference work, for
example, defined “straw boss” as:
A term applied to a worker who takes a lead in a team
or gang, usually small in number, including himself,
performing all the duties of the other workers in the
gang. His supervisory functions are incidental to the
production duties he performs.
U.S. Employment Service, Dictionary of Occupational Ti-
tles 1506 (1949). Workers who have no supervisory duties
except for assigning tasks necessarily will spend the over-
whelming part of their workday engaged in other, non-
supervisory work—as is true of the charge nurses here.24
They can hardly be regarded as the equivalent of foremen,
supervisors who, when the Taft-Hartley Act was passed,
were “expected to perform manual work only in emergency

23 See, e.g., Bethlehem-Sparrows Point Shipyard, Inc., 65 NLRB
284, 286 (1946) (timekeeper leaders not supervisory although “[e]ach
assigns work to the timekeepers under him”); Richards Chemical
Works, Inc., 65 NLRB 14, 16 (1945) (department foremen not supervi-
sory where they “merely serve as conduits for the transmittal of orders
to their men and beyond that, their sole responsibility is to see that the
work is gotten out”); Rockford Screw Products Co., 62 NLRB 1430,
1432 (1945) (working foremen who set up machines and assign work to
employees are not supervisors); Charlottesville Woolen Mills, 59
NLRB 1160, 1162 (1944) (assistant foremen whose “function is, while
doing regular production work, to assist the foremen in expediting the
work” are not supervisors).
The Senate committee report positively cited Bethlehem and Rich-
ards Chemical. It observed that the committee has “adopted the test
which the Board itself has made in numerous cases when it has permit-
ted certain categories of supervisory employees to be included in the
same bargaining unit with the rank and file.” Legislative History, supra
at 410. For a contemporaneous statement of the Board’s test, see, for
example, Douglas Aircraft Co., 50 NLRB 784, 787 (1943) (“As a gen-
eral rule, it is our policy to exclude from the appropriate unit employees
. . . who have authority to hire, promote, discharge, discipline, or oth-
erwise effect changes in the status of such employees, or whose official
recommendations concerning such action are afforded effective
weight”).
24 At the Employer’s facility, charge nurses generally complete the
shift assignments of patients to nurses in the half hour before the
change in shift occurs. The vast majority of the charge nurse’s day is
spent doing rank-and-file duties, not supervising the other staff.
OAKWOOD HEALTHCARE, INC. 705
and training situations.” G. Gardiner & R. Gardiner, Vitaliz-
ing the Foreman’s Role in Management 59 (1949).
Finally, and significantly, the majority’s interpretation
of “assign” as encompassing the daily assignment or dis-
tribution of tasks (or, in the healthcare context, patients)
threatens to sweep almost all staff nurses outside of the
Act’s protection. Presumably, most nurses—as well as
other professionals who work with assistants or as team
leaders—routinely play a role in assigning out the day’s
work. The record in this case, for example, indicates that
all hospital staff nurses have authority to give task as-
signments to other team members, such as nursing assis-
tants and mental health workers. This is not an anomaly.
It is commonplace in institutional health care settings for
staff nurses to work with assistive personnel, such as
nursing aides, to whom they assign and delegate work.25
As of 2004, there were 2.2 million registered nurses, of
whom 50 percent are employed in private sector hospi-
tals, and another 6.5 percent are employed in nursing
homes. Another 370,000 licensed practical nurses
(“LPNs”) are employed in hospitals and nursing homes.26
It seems highly unlikely, to say the least, that Congress
would take away with one hand (the definition of “su-
pervisor”) what it gave with another (the explicit statu-
tory coverage of “professional employees”). And even if
the statutory text permitted such a drastic result, what
reasons of federal labor policy would support it? Deny-
ing the Act’s protection to workers who have only minor

25 A recent study by the Institute of Medicine indicates that
2.3 million unlicensed health care workers . . . supplement the work
of licensed nurses by performing basic patient care activities under
the supervision of an RN [registered nurse] or LPN/LVN [licensed
practical nurse/licensed vocational nurse]. These unlicensed health
care personnel hold a variety of job titles, including nurse assistants,
nurse aides, home health aides, personal care aides, ancillary nursing
personnel, unlicensed nursing personnel, unlicensed assistive per-
sonnel, nurse extenders, and nursing support personnel.
Institute of Medicine, Keeping Patients Safe: Transforming the Work Envi-
ronment of Nurses 66 (2004). According to this study, registered nurses
(“RNs”)
supervise other nursing personnel—LPNs/LVNs and NAs [nurse
aides], as well as other RNs. Supervision activities include assigning
and scheduling work, collaborating with staff to make patient care
decisions, overseeing nursing staff performance and patient care
quality, resolving problems, and evaluating performance. In addi-
tion, as non-nursing patient care services have been decentralized and
located at the nursing unit as part of hospital reengineering initiatives,
nurses have taken on responsibility for supervising non-nursing per-
sonnel (McCloskey et al., 1996).
Id. at 79.
26 Bureau of Labor Statistics, U.S. Department of Labor, 2004-14
National Employment Matrix, detailed industry by occupation (industry
codes 622000 & 623000) at http://www.bls.gov/emp/empiols.htm. It is
estimated that, by 2014, approximately 1.7 million RNs and 403,000
LPNs will be employed in private hospitals or nursing and other resi-
dential care facilities.
supervisory responsibilities, and who are closely aligned
not with management but with rank-and-file employees,
is both contrary to Congressional intent and a recipe for
workplace discord. The majority says that it is “not
swayed to abandon [its] interpretation by predictions of
. . . what the result in any given case will be.” But the
Board’s proper function in this case, one of the most im-
portant in its history, must be to calculate the possible
consequences of its reading of the Act and to weigh them
against the evidence of Congressional intent. Nothing in
the legislative history of the Taft-Hartley Act suggests
that Congress intended to greatly broaden the scope of
supervisory status, as it was understood at the time.
Rather, as explained, it sought to exclude from statutory
coverage an already well-recognized segment of supervi-
sory employees, foremen and their equivalents. The ma-
jority’s interpretation threatens to go much farther.
B. “Responsibly to direct”
It is because the “gradations of authority ‘responsibly
to direct’ the work of others from that of general man-
ager or other top executive to ‘straw boss’ are so infinite
and subtle that of necessity a large measure of informed
discretion is involved in the exercise by the Board of its
primary function to determine those who as a practical
matter fall within the statutory definition of a ‘supervi-
sor.’” NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Cir.
1961). The majority fails to exercise that discretion ade-
quately here.
1.
The majority’s discussion of the statutory phrase “re-
sponsibly to direct” narrowly focuses on the meaning of
the word “responsibly.” It proposes a statutory test that
rests on finding (1) that “the person performing the over-
sight must be accountable for the performance of the task
by the other, such that some adverse consequence may
befall the one providing the oversight if the tasks per-
formed are not performed properly;” and (2) that the in-
dividual in question has “the authority to take corrective
action, if necessary.”27 This test, the majority explains, is
derived from federal appellate court decisions and is
“consistent with the ordinary meaning of the word [‘re-
sponsibly’].”

27 This prong of the test presumably means something less than the
authority to discipline, or effectively recommend discipline, because
such authority would be enough, in itself, to establish supervisory status
under Sec. 2(11), which explicitly refers to the authority to “discipline
other employees.” On the other hand, if the test refers only to the au-
thority to report and correct the errors of staff members, then it con-
flicts with longstanding Board authority. See, e.g., Vencor Hospital-
Los Angeles, 328 NLRB 1136, 1139 (1999); Ryder Truck Rental, Inc.,
326 NLRB 796, 796 (1998); Ohio Masonic Home, 295 NLRB 390, 394
(1989); Eventide South, 239 NLRB 287, 288 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD706
The majority’s approach is puzzling given its recogni-
tion of the origin of the statutory phrase: a floor amend-
ment in the Senate, made by Senator Ralph Flanders of
Vermont. He explained what the language was intended
to accomplish:
[T]he definition of “supervisor” in this act seems
to me to cover adequately everything except the ba-
sic act of supervising. Many of the activities de-
scribed in paragraph (11) are transferred in modern
practice to a personnel manager or department. The
supervisor may recommend more or less effectively,
but the personnel department may, and often does,
transfer a worker to another department on other
work instead of discharging, disciplining or other-
wise following the recommended action.
In fact, under some modern management meth-
ods, the supervisor might be deprived of authority
for most of the functions enumerated and still have
large responsibility for the exercise of personal
judgment based on personal experience, training,
and ability. He is charged with the responsible di-
rection of his department and the men under him.
He determines under general orders what job shall
be undertaken next and who shall do it. He gives in-
structions for its proper performance. If needed, he
gives training in the performance of unfamiliar tasks
to the worker to whom they are assigned.
Such men are above the grade of “straw bosses,
lead men, set-up men, and other minor supervisory
employees” as enumerated in the report [the report
of the Senate Committee]. Their essential manage-
rial duties are best defined by the words, “direct re-
sponsibly,” which I am suggesting.
In a large measure, the success or failure of a
manufacturing business depends on the judgment
and initiative of these men. The top management
may properly be judged by its success or failure in
picking them out and in backing them up when they
have been properly selected.
Legislative History, supra, at 1303; 93 Cong. Rec. 4804
(May 7, 1947) (emphasis added).
In light of this legislative history, the concededly am-
biguous phrase “responsibly to direct” must be recog-
nized as a term of art and interpreted in light of Senator
Flanders’ statement on the floor. That statement (and not
the dictionary or later judicial decisions) provides the
best guide to Congressional intent.
2.
What Senator Flanders’ statement demonstrates, in
turn, is that the phrase “responsibly to direct” refers to
the general supervisory authority delegated to foremen
overseeing an operational department and the account-
ability that goes with it, in contrast to the kind of one-on-
one task direction (mistakenly covered by the majority’s
interpretation of “assign”) that would be given by minor
supervisory employees (persons who themselves an-
swered to the foreman) to other employees. What is
missing from the majority’s interpretation, then, is the
recognition of the scope and scale of the supervisory
function that “responsibly to direct” was intended to cap-
ture. More than simply the responsible oversight of an-
other worker’s performance of a task is involved.
Rather, the test proposed by the General Counsel in
this case accurately captures the intent of Congress in
articulating the analytical factors for determining the
existence of “responsibly to direct” authority:
An individual responsibly directs with independent
judgment within the meaning of Section 2(11) when it
is established that the individual:
a. has been delegated substantial authority to en-
sure that a work unit achieves management’s objec-
tives and is thus “in charge”;
b. is held accountable for the work of others; and
c. exercises significant discretion and judgment
in directing his or her work unit.
This test differs crucially from the majority’s construction in
requiring oversight with respect to a work unit.28
3.
Contrary to the majority’s apparent suggestion, the aim
of the Flanders amendment was not to cover every “per-
son on the shop floor” with any sort of supervisory au-
thority, but rather to insure that foremen would be treated
as statutory supervisors, even if they lacked the types of
supervisory authority listed in the bill when it came to
the Senate floor. The acknowledged purpose behind the
Taft-Hartley Act’s express exclusion of supervisors was
to overturn the result of the Supreme Court’s decision in
Packard Motor Car, supra, which had upheld the rights
of foremen to organize under the provisions of the Wag-
ner Act. Replete in the legislative history are statements
demonstrating that it was “unions of foremen” that Con-
gress was intent on addressing. See Legislative History,
supra, at 299, 304–307, 410–411, 539, 603–604, 1008–
1009, and 1496. Senator Flanders’ statement echoed the
Board’s own contemporaneous description of the author-
ity and duties of foremen in the Packard Motor Car case,

28 The majority observes that “prong (c)” of this test is consistent
with its interpretation of “independent judgment.” We do not disagree.
The General Counsel’s test, which we endorse, is intended to integrate
the concepts of responsible direction and independent judgment.
OAKWOOD HEALTHCARE, INC. 707
which emphasized the foreman’s reduced authority over
personnel matters such as hiring, firing, and discipline,
coupled with his critical oversight role in the production
process. See Packard Motor Car Co., 61 NLRB 4, 10-12
(1945), enfd. 157 F.80 (6th Cir. 1946), affd. 330 U.S.
485 (1947).29
The Flanders amendment, then, clearly sought to cap-
ture the essential elements of the manufacturing fore-
man’s authority and responsibility, with regard to “re-
sponsible direction of his department and the men under
him.” Legislative History, supra, at 1303 (emphasis
added). A contemporary treatise described the foreman
as “a manager of a business within a business,” observ-
ing that “[i]n his department he is responsible for a con-
siderable investment in equipment, work space, material,
and labor.” Vitalizing the Foreman’s Role in Manage-
ment, supra, at 4. Similar descriptions were common-
place at the time. See, e.g., U.S. Dept. of Labor, Div. of
Labor Standards, The Foreman’s Guide to Labor Rela-
tions (Bulletin No. 25) 3–4 (1944).
The foreman, in turn, was distinct from the “minor su-
pervisory employees” referred to in the Senate committee
report. As explained, such workers may have directed
certain other employees in the performance of their
tasks—and might well have been held accountable in that
connection. But their supervisory duties were incidental
to their own productive work, and they were not in
charge of a work unit, nor did they exercise (in Senator
Flanders’ words) “essential managerial duties,” in the
same sense as the foreman, their superior.30
As the legislative history makes clear, the statutory
phrase “responsibly to direct” was premised on the man-
agement model then common in manufacturing. The
Board’s task, of course, is to apply the Act today and to
all economic sectors. It is not free, for example, to hold

29 In a 1944 paper, one industry representative explained that a fore-
man “was responsible for everything that took place within his depart-
ment, but . . . his range of authority was very limited” because the
foreman had “no final control over hiring or a voice in discharge, disci-
pline, promotion, transfer and handling of grievances.” F.J. Van Pop-
pelen, The Foreman’s Privileges and Authority, reprinted in American
Management Association, The Foreman in Labor Relations (Personnel
Series No. 87) 21 (1944). See generally Peter Cappelli, “Market-
Mediated Employment: The Historical Context,” in The New Relation-
ship: Human Capital in the American Corporation 77–78 (Margaret M.
Blair & Thomas A. Kochan, eds. 2000).
30 See, e.g., Vitalizing the Foreman’s Role, supra, at 5; Nelson Lich-
tenstein, “The Man in the Middle”: A Social History of Automobile
Industry Foremen, in On the Line, Essays in the History of Auto Work
157 (N. Lichtenstein & S. Meyer, eds. 1989) (discussing roles and
relationships of foreman and lead man, set-up man, and straw boss).
See also U.S. Employment Service, Dictionary of Occupational Titles,
supra, at 1506 (definition of “straw boss”); Roberts Dictionary of In-
dustrial Relations 114, 121, 219, 407 (1st ed. 1966) (definitions of
“foreman,” “leadman,” “straw boss,” and “gang boss”).
that the responsible-direction test can be satisfied only in
workplaces that are indistinguishable from the automo-
bile-manufacturing plants of the 1940s. But, in deter-
mining whether a putative supervisor has the authority
“responsibly to direct” other employees, the Board must
consider that person’s place in the supervisory hierarchy
of the workplace and determine whether her function is
analogous to that of the traditional foreman. The major-
ity’s narrow test fails to do so and thus fails to capture
the intent of Congress.31
The majority’s interpretation of responsible direction
eliminates the Congressionally intended distinction be-
tween individuals with “essential managerial duties” and
those with only “minor supervisory” duties. Under the
majority’s test, any worker who instructs another to per-
form a task, no matter how minor it may be, would be a
statutory supervisor, if he exercises independent judg-
ment and is held accountable by the employer in connec-
tion with that instruction. Thus, in Golden Crest Health-
care Center, 348 NLRB No. 39 (2006), issued today, the
majority’s application of its test leads to a conclusion
that nurses who tell certified nursing assistants “to clip
residents’ toenails and fingernails, to empty catheters, or
to change an incontinent resident” would be supervisors,
so long as the responsibility and independent judgment
elements of the majority’s definition were satisfied—and
employers eager to take nurses out of the Act’s protec-
tion might well choose to hold them accountable for such
minor matters. By taking such an expansive approach to
the interpretation of responsible direction, the majority
dramatically increases the number of potential statutory
supervisors. Indeed, it is difficult to see who would be
left in the category of minor supervisory employees that
Congress clearly intended to protect.
C. “Independent Judgment”
Under Section 2(11), the exercise of supervisory au-
thority must “require[] the use of independent judgment”
before a person will be deemed a statutory supervisor.
We agree with the majority’s view that, in the wake of
the Supreme Court’s decisions in this area, the Board
must apply a uniform test with respect to “independent
judgment,”

31 Recognizing that the scope of “responsible direction” is an entire
department or operating unit is consistent with the Supreme Court’s
statement in Kentucky River, noted above, that Sec. 2(11) may contem-
plate a distinction between “employees who direct the manner of oth-
ers’ performance of discrete tasks from employees who direct other
employees. . . .” Kentucky River, supra, 532 U.S. at 720. This reading,
moreover, maintains the internal consistency of Section 2(11): “re-
sponsible direction,” like each of the other enumerated functions, re-
flects a management prerogative with the capacity to materially affect
employees’ basic employment terms.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD708
irrespective of the Section 2(11) supervisory function
implicated, and without regard to whether the judgment
is exercised using professional or technical expertise.
The majority’s proposed test, in turn, is a reasonable one.
First, “to exercise ‘independent judgment’ an individual
must at minimum act, or effectively recommend action, free
of the control of others and form an opinion or evaluation
by discerning and comparing data.” Second, even if this
standard is met, the individual’s action or effective recom-
mendation must not be “of a merely routine or clerical na-
ture” (in the words of the Act).
The difficulty here lies not in the statement of a gen-
eral test, but in the application of that test to specific
cases. What does it mean, for example, for a putative
supervisor to act “free of the control of others”? We
agree with the majority that “judgment is not independ-
ent if it is dictated or controlled by detailed instructions,
whether set forth in company policies or rules, the verbal
instructions of a higher authority, or in the provisions of
a collective-bargaining agreement.” The very existence
of policies, rules, and instructions surely demonstrates
that a putative supervisor is subject to the control of oth-
ers, insofar as he is neither the author of those standards
or the final arbiter of their meaning. And because rules
are rarely self-executing—apart from applying mathe-
matical formulas—it seems inevitable that there will of-
ten be some room for judgment in interpreting them.
The question is how much and what measure of discre-
tion is sufficient. The majority properly acknowledges
that “[t]here may be instances where instructions do not
strictly dictate a sequence of actions, but nonetheless
constrain the exercise of discretion below the statutory
threshold.”
We see no way to resolve these issues except on a
case-by-case basis, rather than through hypothetical ex-
amples. The Board’s determinations in specific cases
should be guided not by the dictionary or abstract con-
siderations, but by practical realities viewed in light of
the Congressional intent to exclude foremen and their
equivalent, but not minor supervisory employees, from
the Act. We take no view, then, on the specific examples
offered by the majority, except to disagree that, in the
health care setting, assigning patients to nursing person-
nel or making other task assignments confers supervisory
status, even if it is done using independent judgment.
III.
Applying our interpretations of “assign . . . other em-
ployees” and “responsibly to direct,” none of the charge
nurses whose status is at issue in this case are statutory
supervisors. This case illustrates well the gradations of
supervisory authority possible in a workplace and why
the Board must carefully take them into account, if it
wants to be faithful to Congressional intent.
A.
In each of the Employer’s hospital units, there exists
an established hierarchy of admitted supervisors.
At the top level in the hospital is the nurse site leader,
a position comparable to a director of nursing in other
hospitals.
Below this position are clinical supervisors who rotate
serving as the principal nursing supervisor and highest-
ranking administrative officer during holidays, weekends
and off-hour shifts when the nurse site leader is not pre-
sent. These clinical supervisors make daily rounds of all
the units and are responsible for ensuring adequate unit
staffing and, as described by the hospital’s nurse site
leader, “keeping the hospital open and running.”
Each unit is then directly overseen by a clinical man-
ager who develops the budgets, finalizes schedules, de-
velops policy for the unit and does the hiring, firing and
disciplining of employees. These managers generally are
responsible for more than one nursing unit. They per-
form no clinical nursing work. The clinical managers are
listed as the designated supervisors for staff nurses on
job descriptions and serve as the Employer’s first step
representative under its written grievance procedure. In
all but two departments, the clinical managers are as-
sisted by assistant clinical managers who are part of the
management team, substitute in the absence of the clini-
cal manager, assist the clinical manager in evaluations,
scheduling staff, handling patient, physician and em-
ployee complaints, and directly oversee the individual
unit to which they are assigned. The assistant clinical
managers also have no bedside patient care responsibili-
ties.
In contrast, charge nurses spend the vast majority of
their time in line work—a fact that strongly tends to es-
tablish their status as minor supervisory employees.
Charge nurses, among other duties: (1) monitor patients
in the unit; (2) check doctor’s orders for each patient; (3)
respond to requests and questions from the patients’ doc-
tors and family members; (4) take inventory of the
“crash” carts and restricted narcotic medications; (5)
report acute changes in a patient’s status or unit problems
to the clinical manager; (6) gather factual information
and fill out incident reports; and (7) provide statistical
information to the Hospital’s administrative staff. It is
also common for charge nurses to take on individual pa-
tient assignments, engaging in the same direct patient
care work as other staff nurses. Charge nurses have no
formal role in the employee grievance process and do not
otherwise serve as management representatives on mat-
ters that impact employee status.
OAKWOOD HEALTHCARE, INC. 709
B.
With respect to assignment authority, the charge
nurses have no authority to determine an employee’s job
classification, designated nursing unit, or work shift.
Rather, nurse managers and nursing supervisors assign
the staff nurses to the particular units and work shifts.
As demonstrated earlier, the authority of charge nurses
to assign patients to staff nurses, or generally to assign
tasks already within the basic job duties of staff employ-
ees, is not a supervisory function under Section 2(11),
properly interpreted.32
Job descriptions define the staff nurses’ essential job
responsibilities and reflect that each staff nurse “[u]nder
general direction, provides direct care to patients utiliz-
ing the nursing process.” Under the Employer’s evalua-
tion system, bedside staff nurses are held expressly ac-
countable for meeting a basic set of competencies, which
includes “knowledge of the special needs and behaviors
of specific patient age groups and the ability to produce
the results expected from clinical interventions” (E.
Exhs. 16 & 15). In short, once assigned to a particular
unit, staff nurses are expected to be able to care for any
unit patients. That a unit staff nurse is tasked on one day
to provide nursing care to unit patients in rooms “A,”
“B,” and “C” and on another day to care for unit patients
in rooms “D,” “E,” and “F” does not affect the nurse’s
overall status or situation, much less alter her tenure or
other basic terms and conditions of employment. Such
an assignment is simply a means of distributing the day’s
work among peers and/or other staff.
C.
With respect to responsible-direction authority, charge
nurses do not have basic operational responsibility for
their units: they do not decide staffing, scheduling or
budgets that determine the overall direction and function-
ing of the unit. They are not held accountable for the
overall performance of their unit. Indeed, as the majority
correctly recognizes, charge nurses are not even account-
able for the performance of assigned tasks by other em-
ployees. In no real sense, then, are the charge nurses in
charge of their units, despite their titles. That status,
rather, belongs to the clinical managers. In the Em-
ployer’s workplace, these clinical managers—not the
charge nurses—are the equivalent of foremen.

32 Accordingly, it is immaterial whether or not performing this func-
tion requires the use of independent judgment. However, we observe
that there is much evidence in the record that the Employer’s charge
nurses make assignments to staff nurses on a rotating basis or simply to
equalize the workload among them, rendering it unlikely that making
such assignments requires the exercise of independent judgment. See
Ten Broeck Commons, 320 NLRB 806, 810 (1996); Providence Hospi-
tal, supra, 320 NLRB at 727.
D.
In sum, none of the charge nurses whose status is at is-
sue are supervisors within the meaning of Section 2(11)
of the Act. We accordingly concur in the result reached
by the majority with respect to the emergency room
charge nurses and the rotating charge nurses.33 We dis-
sent from the majority’s finding that the permanent
charge nurses are statutory supervisors.
IV.
The consequences of today’s decision, among the most
important in the Board’s history, will take time to play
out. They depend, in some measure, on how the Board
applies in practice the principles announced here, on
whether the federal appellate courts uphold those princi-
ples, and on the extent to which employers seek to take
advantage of the Board’s decision. In our view, the ma-
jority has followed a mistaken approach to statutory in-
terpretation that, not surprisingly, leads it far beyond
what Congress contemplated in 1947 when it addressed
the unionization of foremen. The result could come as a
rude shock to nurses and other workers who for decades
have been effectively protected by the National Labor
Relations Act, but who now may find themselves treated,
for labor-law purposes, as members of management, with
no right to pursue collective bargaining or engage in
other concerted activity in the workplace. Indeed, super-
visors may be conscripted into an employer’s anti-union
campaign, while their pro-union activity is now strictly
limited.34 The majority’s decision thus denies the protec-
tion of the Act to yet another group of workers, while
strengthening the ability of employers to resist the un-
ionization of other employees. Accordingly, we dissent.

33 The majority asserts that under current Board law, nurses who ro-
tated into a supervisory position might be deemed supervisors if the
“employees have served in a supervisory role for as little as 10–15
percent of their total work time.” We disagree. A supervisory position
that is filled by rotation among a group of employees into a supervisory
position requires a different analysis than substitution by an individual
employee for a regular supervisor. See Providence Hospital, supra,
320 NLRB at 733 (“Statutory supervisory authority is not shown by the
limited authority of a charge nurse team leader on one day to ‘super-
vise’ coequal RNs, some of whom may on another day ‘supervise’ their
equals including the charge nurse”), citing General Dynamics Corp.,
213 NLRB 851, 859 (1974).
More generally, to the extent that supervisory functions are now de-
fined more broadly than ever before, the Board should not find supervi-
sory status unless supervisory duties require a significant percentage of
a putative supervisor’s worktime. The Board’s approach in this area is
ripe for reconsideration. See generally Detroit College of Business, 296
NLRB 318, 320–321 (1989) (rejecting earlier Board view that supervi-
sory status requires finding that supervisory duties consume 50 percent
or more of individual’s time).
34 See Harborside Healthcare, Inc., 343 NLRB 906, 917–918 (2004)
(dissent).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD710
APPENDIX
. . .
The Employer, Oakwood Healthcare, Inc. (OHI) owns
and operates a large network of hospitals and related
health care enterprises. Its Oakwood Healthcare System
(OHS) operates four acute-care hospitals;4 neighborhood
and occupational health care centers; specialty care cen-
ters for mammography, cardiac rehabilitation, sports
medicine, and adolescent health; numerous foundations;
and various ancillary services such as laboratories and
pharmacies. The Petitioner seeks to represent a unit of
approximately 220 registered nurses (RNs) employed at
a single acute-care hospital, Heritage.
. . .
Heritage Hospital is an acute-care hospital with 257 li-
censed beds. Heritage has medical surgical areas, inten-
sive care and intermediate care, ER and OR services,
rehab services, and psychiatric/behavioral health ser-
vices. These services are divided into the following units
within the hospital: Medical/surgical west (MSW),
medical/surgical east (MSE), behavioral health (BH),
post anesthesia care unit/recovery (PACU); rehab, inter-
mediate care unit (IMU), intensive care unit (ICU), emer-
gency department (ER), and operating room/anesthesia
department (OR). The pain clinic at Heritage is an outpa-
tient clinic for patients who are being treated for chronic
pain.
. . .
The chief administrative officer at Heritage is Rick
Hillbom, who reports to [Joseph] Diedrich, the chief op-
erating officer of OHI. Brenda Theisen, nursing site
leader and director of patient care services at Heritage,
reports to Hillbom regarding daily operations at Heritage.
Theisen also reports to Barb Medvec, the chief nursing
officer of OHS. The nursing site managers at Seaway,
OHMC, and Annapolis also report to Medvec.5 Medvec
and Diedrich do not work on site at the Heritage facility.
As the nursing site leader at Heritage, Theisen is respon-
sible for anything having to do with nursing care that is
delivered by the hospital, although she does not directly
supervise nurses on a day-to-day basis.
Reporting to Theisen at Heritage are clinical supervi-
sors (also known as nurse supervisors or house supervi-
sors) and clinical managers (also known as nurse manag-

4 The hospitals include Oakwood Heritage Hospital (Heritage);
Oakwood Hospital and Medical Center (OHMC); Oakwood Annapolis
Hospital (Annapolis); and Oakwood Seaway Hospital (Seaway).
5 The parties stipulated at the hearing that Hillbom, Theisen, Med-
vec, and Deidrich are all statutory supervisors within the meaning of
the Act based on their authority to discipline and independently direct
employees.
ers).6 Clinical supervisors generally work on off shifts,
such as afternoon shifts, midnights, holidays, and week-
ends. When they work they cover the entire hospital,
nursing as well as every department within the hospital.
Only one clinical supervisor works on a particular shift at
a given time. The clinical supervisors do not spend too
much time in a particular unit because they are oversee-
ing the entire hospital. They spend considerable time in
the ER, because they have to attend to any code (code
blue, respiratory or cardiac arrest of a patient) that oc-
curs. They also look at staffing for the next shift, call
agencies or additional staff if needed, and document call-
offs if someone is calling in sick. They also address any
problems that may arise during their shift (i.e., fire alarm
going off, flood). When on duty, the clinical supervisor
is the highest ranking administrative officer in the facil-
ity.
Clinical managers are responsible for several units in
distinct geographical areas within the hospital. Clinical
managers are all RNs. They normally work the day shift,
and they oversee the units that they are responsible for as
far as developing a unit budget, finalizing schedules, and
drafting schedules that have been submitted by the nurs-
ing staff. They work on development of policy for their
units, and attend meetings, corporate as well as site meet-
ings and department meetings. They are not regularly
engaged in actual clinical work/nursing functions. They
each have an office located within one of their units.
They are on call 24 hours a day, and address the day-to-
day issues and problems that arise within their units, as-
suming such problems cannot be addressed at a lower
level. Clinical supervisors and clinical managers are
salaried positions.
There are eight assistant clinical managers (also re-
ferred to as assistant nurse managers or ACMs) who re-
port to the nurse managers.7 The ACMs are part of the
management team and as such attend meetings, assist
with schedules, and cover the clinical manager’s respon-
sibilities when the clinical manager is not in the building
doing administrative functions. Not every unit has an
ACM. The clinical managers direct the duties of the
ACMs. They work various shifts, determined by the
clinical manager with whom they work. The position
was created to enable the clinical manager to cover mul-

6 The parties stipulated, and I find, that clinical supervisors and
clinical managers are supervisors as defined in Sec. 2(11) of the Act
based on their authority to discipline and independently direct employ-
ees.
7 The parties stipulated, and I find, that ACMs are supervisors as de-
fined in Sec. 2(11) of the Act based on their authority to discipline and
independently direct other employees.
OAKWOOD HEALTHCARE, INC. 711
tiple units. The ACMs also handle day-to-day issues and
problems if needed.
All registered nurses at the hospitals report directly to
on-site nursing supervisors. With the recent advent of
“service line” reporting configurations, however, the
upper reach of supervisory hierarchy for nurses in certain
specialties includes individuals who oversee that nursing
specialty at more than one site. Nonetheless, the devel-
opment of “service lines” has not erased the primacy of
first-line supervision nor diminished the authority of the
nursing site leader. A communication chain of command
is contained in several written directives issued by the
corporate human resources department and approved by
the acute-care nursing operations council. These policies
specify that a nurse or charge nurse encountering any sort
of patient, operational, or ethical problem is expected to
notify a clinical manager or clinical nurse supervisor.
The latter contacts the nursing site leader, who consults
with the site administrator, service line leader, or risk
manager as deemed necessary. (Footnote omitted.)
Staffing and scheduling guidelines emanate from the
corporate human resources department. These precepts
are further refined by the acute-care nursing operations
council. The work schedule for nurses on each nursing
unit must be posted for 4 weeks. The corporation has
adopted what is considered a standard work day, and also
offers nurses the option of working alternative schedules.
Within these parameters, specific choices of unit shifts
(days, evenings, midnights, or rotation) and hour patterns
(4-hour, 8-hour, 10-hour, or 12-hour) are established by
the unit’s clinical manager. Requests for shift changes
must be made in writing and submitted to the clinical
manager. Employees may adjust their schedules by trad-
ing with colleagues, but all trades must be requested of
and approved in advance by the clinical manager. The
amounts of allotted vacation time, sick leave, and per-
sonal time are centrally prescribed, but specific requests
for vacation time and other leave are submitted to and
acted upon by the nurse’s immediate site supervisor. In
particular, the clinical manager sets the limit on the num-
ber of simultaneous vacations that she will allow.
OHS enforces an across-the-board policy forbidding
mandatory overtime, but overtime will be scheduled and
offered in emergencies. The clinical manager or clinical
nurse supervisor determines whether an emergency ex-
ists, and all overtime must be approved in advance by
those individuals. The corporation has a uniform atten-
dance program that correlates discipline with the number
of unexcused absences. The clinical manager has discre-
tion to characterize an “emergency” absence as excused
and an undocumented absence as unexcused.
Staffing guidelines are centrally determined, and are
based on prescribed criteria such as patient census and
acuity. The clinical nurse supervisor is responsible for
assuring that adequate staff is available and for initiating
the use of overtime, system or in-house flex pool nurses,
or outside agency nurses to cover staffing shortages.
Each hospital’s nursing site leader maintains 24-hour
accountability and availability to assure that appropriate
staffing levels are continuous.
An inter-site nursing leadership council has devised
detailed job descriptions for each nursing position. As
noted above, each job has a set wage range from which
site managers may not vary. A newly hired or trans-
ferred nurse is assigned a wage rate within the range
based upon her level of experience, in accordance with a
centrally determined grid. How years of experience for
this purpose are counted or weighted is not disclosed in
the record. The wage ranges for each job classification
are uniform across the four acute-care hospitals.
All employees subject to the handbook receive peri-
odic performance appraisals, prepared by immediate site
supervisors on centrally prescribed forms. The supervi-
sor assigns a numerical rating in specific areas, and the
individual ratings are converted, in accordance with a
predetermined formula, into an overall score. As stated
in the handbook, all employees with a final score of 100
or more are entitled to whatever across-the-board pay
increase that the Employer chooses to implement. Any
applicable pay increase will be the same for all eligible
employees, regardless of the exact appraisal score.
. . .
At Heritage, there is some variability with the staff
nurse position depending on the department, but in gen-
eral, there is one written job description that generally
applies to RNs working throughout the hospital. The
description states that RNs are responsible for providing
direct care to patients utilizing the nursing process under
general direction, guiding and supervising nursing per-
sonnel, collaborating with other health care profession-
als, and coordinating ancillary staff.
The clinical manager reviews the job description with
the nurses when they have their annual performance ap-
praisals. Among other things, the RNs are evaluated in
their performance appraisals on their ability to act as a
resource person for trouble-shooting, contributing to the
professional growth of peers, colleagues, and others;
precepting and mentoring; and ability to perform as a
charge RN.
The type of work performed is basically what is dic-
tated by their profession, based on the education and ex-
perience of an RN. They follow doctor’s orders, which
are usually written instructions as to what type of treat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD712
ment is needed, including administering blood tests,
passing medications, and observing patients more
closely. For every task performed by a nurse, there is a
very specific policy and procedure in writing. However,
long-time RNs generally do not need to refer to the pol-
icy and procedure manuals because of their experience,
and many of the RNs working at Heritage have worked
for the Employer for over 10 years.
The employees working with the RNs are typically
employees such as mental health workers, who assist in
the behavioral health department; licensed practical
nurses (LPNs), who are licensed to perform certain nurs-
ing tasks but not the full duties of an RN; nursing assis-
tants, who generally work with and assist RNs with daily
tasks; desk secretaries, who answer telephones, answer
call lights from patients, and enter orders for patients;
nurse externs, who are nursing students who have not yet
graduated; graduate nurse externs, who are nursing stu-
dents who have graduated but have not yet passed their
exams or received their license; or techs and surgical
techs, who assist staff nurses with the care of a patient
undergoing surgical intervention, and ER techs and
paramedics, who work in the emergency department to
assist the staff working in the ER.10 The job descriptions
of the majority of these positions state that they work
under the direction of the RN. Most are also evaluated
on whether they follow directions appropriately to meet
the demands of the unit and the staff. The RNs are re-
sponsible for anyone else working under the RN level.
This responsibility of “guiding and supervising nursing
personnel” and/or “demonstrat[ing] effective leadership
and professional development” is a criterion under which
RNs are evaluated during their performance appraisals.
RNs may assign mental health workers, nursing assis-
tants, techs, or other less-skilled employees to do certain
tasks that are within their ability. For example, they may
assign a mental health worker to work with a group of
patients, or they may instruct a nurse assistant to give a
patient a bath, walk a patient to the bathroom, or give a
patient a meal. They assign these tasks to the nurse as-
sistants because that is what a nursing assistant’s job is—
to assist the staff. If something more important comes
up, the RN may interrupt that task and assign the nurse
assistant to something else. Nursing assistants and techs
are also aware of certain jobs they can do and will take it
upon themselves to do these jobs, without first being
told. It would be insubordination if a nurse assistant re-
fused to listen to the RN, and the RN could go to a supe-
rior to intervene. However, it could be proper for an

10 The nursing assistants are the only employees mentioned in this
group that are represented by a Union, Local 79.
assistant to refuse a task for good reason, such as if they
were busy on a different assignment. Regardless, no
situation has arisen where an assistant or other worker
refused to perform a task. If this did occur, RNs do not
believe that they have the authority to do very much
about it other than going to the clinical manager, as they
have no role in disciplining employees.
The RNs do not rotate shifts. They work straight
shifts; day, afternoon, or midnight, or 12-hour shifts,
which are ordinarily day shifts (7 a.m. to 7 p.m.) or mid-
night shifts (7 p.m. to 7 a.m.). However, they do take
turns rotating the responsibility of charge nurse. On
every shift in each unit, except the pain clinic, there is
one RN assigned to work as a charge nurse. At times,
however, assistant clinical managers have filled in as
charge nurses. In particular, in late 2001, assistant man-
agers filled in as charge nurses to decrease agency nurse
hours.
Rotating charges are individuals who occasionally take
charge nurse responsibilities in a unit. The frequency
with which it happens depends on the size of the unit and
the number of RNs that occasionally rotate. A perma-
nent charge is a person who has requested to and agreed
to be in permanent charge; each time they work, they
work as a charge nurse. The duties of a charge nurse,
whether rotating or permanent, are the same. RNs are
paid hourly. They earn $1.50 more per hour when they
are working as a charge nurse.
In the IMC department, if the assistant nurse manager
is not there to take charge, they rotate the responsibility
of charge nurse. Sometimes it is assigned by the clinical
manager on the schedule, and sometimes it is not. If it is
not assigned, then they take turns. RN Coffee testified
that she is a charge nurse approximately one to two times
during a 2-week schedule.11 Similarly, RN Welch testi-
fied that her work schedule in the ER indicates when she
is assigned to the charge nurse responsibility. The
schedules come out in a 4-week timeframe. As with
Coffee, in a 2-week timeframe, she is usually in charge
once or twice.
RNs must have at least 1 year of nursing experience to
act as charge nurses. RNs learn the responsibilities of a
charge nurse through their education, and by initially
working with a preceptor, or mentor. Preceptors will
work along with the RNs as charge nurses until the RNs
are able to perform the job on their own.
Some RNs choose not to be in charge at all and there is
not necessarily a permanent charge on each unit. How-

11 Coffee works part-time, which is 5 days out of every 2 weeks. As
such, she is charge nurse approximately 2 out of every 5 days that she
works.
OAKWOOD HEALTHCARE, INC. 713
ever, a review of Employer’s Exhibit 12 reflects that a
majority of RNs, with the exception of those working at
the pain clinic and in the operating room, take turns ro-
tating as charge nurse. It appears from the record that
most of the RNs who are not rotating are newer employ-
ees who are not yet ready to take on the charge nurse
responsibilities. Also shown by Exhibit 12 is that only
approximately 11 nurses are permanent charges.12 In the
behavioral health unit, every RN is a rotating charge or a
permanent charge. Where there is a permanent charge on
a particular shift, the rotating charges on that shift take
turns acting as a charge nurse on the days when the per-
manent charge is not working.
Charge nurses are responsible for overseeing the unit
for the shift that they are working, with the staff who are
working the unit that day. They do the assignments of all
the staff that are working on that shift. They monitor in
general all the patients that are in the unit that day, and
meet with physicians if a physician has an issue with a
nurse or with a patient. They also meet with patients or
family members who have a complaint. Some responsi-
bilities vary within each unit. If a variance occurs during
a shift, such as a medication error, patient fall, or any
other incident, a form called a “quality assessment re-
port” is filled out. The charge nurse is responsible for
following up with the incident by examining the patient,
and signing the report as the “person in charge.” If nec-
essary, the charge nurse will call a physician to evaluate
the patient.
RNs are sometimes pulled to work in other units, but
not if they are assigned to work on charge duty. If it is a
nurse’s turn to be pulled, and she is on charge duty, she
will stay on that shift and go the next time. When RNs
are pulled to work in other units, it usually happens at the
start of the shift. The charge nurse is informed that a
nurse is needed in another department, and is given the
names of the nurses who are to be pulled by the clinical
supervisor from the previous shift. Charge nurses can
also be called in the middle of the shift—a supervisor
may inform the charge nurse that one of her nurses is
needed in another unit. The charge nurse cannot refuse
that request. If the charge nurse refused to send some-
one, there would be disciplinary action. The charge
nurse does not assign employees to shifts; that is done by
a staffing office. When the charge nurse comes in, she is
handed a list (prepared by the supervisor on the previous
shift) of the nurses who are supposed to be working that
day on her shift. If nurses on the list do not show up, the

12 The majority of the permanent charges work in the behavioral
health unit.
charge nurse calls the staffing office to find out where
that person is.
OHS has a policy for the assignment of nursing per-
sonnel to provide adequate numbers of licensed staff and
other personnel to deliver care to patients. Under this
policy, assignments are to be made in accordance with
the patient’s need. In making assignments, the charge
nurse must determine the acuity of the patient and deter-
mine the level of skill required to care for the patient—
i.e., RNs can perform certain tasks that cannot be per-
formed by LPNs, etc. Level of experience of the nurse,
determining which nurses work well together as a team,
as well as other activities that a particular nurse may also
be responsible for, are also considered. On occasion,
assignments will be changed mid-shift; for example, if
there is a change in a patient’s condition such that differ-
ent care is warranted. The charge nurse also assigns
nursing assistants or mental health workers either to par-
ticular patients or to work alongside specific RNs. After
receiving their general assignment, the RN and/or the
charge nurse may assign them more specific tasks such
as giving a patient a bath, etc. Charge nurses are also
responsible for assigning breaks and lunches to other
employees. However, they do this by asking the other
nurses when they would like to take their break, and their
main goal in assigning breaks is to make sure the unit is
covered at all times.
At times RNs may complain about particular assign-
ments. The charge nurse can reevaluate and make
changes in assignments if appropriate. This could occur
if a patient requires more work than expected, or if a pa-
tient’s condition changes which requires more treatment
or attention. However, the record does not indicate any
instances of a serious conflict based on job assignments.
Furthermore, RNs usually work together to help each
other out, as a common courtesy of their profession. If
RNs need help with a patient, they may go directly to
another nurse and ask rather than going to the charge
nurse. Many of the tasks handled by the charge nurse,
including complaints of family members, can be handled
by any RN. One RN testified that she does not interact
any differently with other RNs on staff when she is a
charge nurse compared to when she is not.
Some charge nurses may take patient assignments in
addition to their other responsibilities. Whether or not a
charge nurse takes an assignment typically depends on
what department they work in and on what shift they
work. Charge nurses on each shift are responsible for
deciding whether or not they take assignments. Charge
nurses frequently do take patients, although they will
often take fewer patients than the other staff nurses on
duty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD714
The assignment of staff nurses to patients is much
more perfunctory in practice than the Employer’s written
assignment policy indicates. The assignment of work is
generally rotated, or based on where a person worked the
previous day. When making assignments as a charge
nurse, reference is made to a staffing sheet showing
where everyone worked the day before. It usually takes
only a few minutes to do the assignments. There was
testimony that the main responsibility of the charge
nurses is to be familiar with what is going on in their
particular units, and to basically be the go-to person for
questions or issues that arise. For example, in the ER the
charge nurse has to answer the clinical supervisor’s or
manager’s inquiries about whether there will be patient
admissions. This will determine whether extra staffing is
needed for a particular unit, such as ICU.
When the nurses arrive for their shifts in the IMU, they
all listen to the report from the charge nurse of the previ-
ous shift. Then the charge nurse makes the assignments
by asking who knows which patients have the highest
acuity (these patients are referred to as the “completes”).
They get a slip from the staffing office showing who is
supposed to be there that day. The charge nurse then
makes out the assignments. First, the completes are di-
vided up evenly. After that, they look at who was there
the day before, and try and give them the same assign-
ment they had in order to maintain continuity. In IMU,
nurse assistants make out their own assignments.
The charge nurse in IMU is also responsible for as-
signing beds to new patients or transfers from ICU.
When determining where to assign the new patient as far
as the staff is concerned, the charge nurse will go by who
did an admission the day before—or, who currently has
three patients instead of four. If necessary, the charge
nurse may assign the patient to herself. If everyone had a
full load, she would go to the manager. It also becomes
necessary to reassign patients to different staff, if, for
example, there is a personality conflict between a nurse
and a patient. This could be handled by asking another
nurse if she would take the patient. It is questionable
whether the charge nurse has the authority to force an-
other nurse to take another patient.
Generally, it is the clinical manager who hires, fires,
and handles conflicts within the unit. They also handle
performance evaluations, finalize schedules, and handle
staffing issues and patient complaints. The assistant
manager also does these things. Charge nurses do not
make the decision to hold someone past the end of their
shift if they are short staffed, nor do they authorize over-
time. Charge nurses can be, and have been, disciplined
by clinical managers.
. . .
Section 2(3) of the Act excludes from the definition of
the term “employee” “any individual employed as a su-
pervisor.” Section 2(11) of the Act defines a “supervi-
sor” as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not merely of a routine or clerical na-
ture, but requires the use of independent judgment.
Section 2(11) is to be interpreted in the disjunctive and
the possession of any one of the authorities listed in that
section places the employee invested with this authority
in the supervisory class. Ohio Power Co. v. NLRB, 176
F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899
(1949); Allen Services Co., 314 NLRB 1060 (1994).
On May 29, 2001, the Supreme Court issued its deci-
sion in NLRB v Kentucky River Community Care, 532
U.S. 706, 121 S.Ct. 1861 (2001), wherein the Court up-
held the Board’s longstanding rule that the burden of
proving Section 2(11) supervisory status rests with the
party asserting it. See Ohio Masonic Home, 295 NLRB
390, 393 fn. 7 (1989); Bowne of Houston, Inc., 280
NLRB 1222, 1223 (1986). However, the Court rejected
the Board’s interpretation of “independent judgment” in
Section 2(11)’s test for supervisory status, i.e., that regis-
tered nurses will not be deemed to have used “independ-
ent judgment” when they exercise “ordinary professional
or technical judgment in directing less-skilled employees
to deliver services in accordance with employer-specified
standards.” 121 S.Ct. at 1863. Although the Court found
the Board’s interpretation of “independent judgment” in
this respect to be inconsistent with the Act, it recognized
that it is within the Board’s discretion to determine,
within reason, what scope or degree of “independent
judgment” meets the statutory threshold. See Beverly
Health & Rehabilitation Services, 335 NLRB 635
(2001). However, the Court did agree with the Board in
that the term “independent judgment” is ambiguous as to
the degree of discretion required for supervisory status
and that such degree of judgment “that might ordinarily
be required to conduct a particular task may be reduced
below the statutory threshold by detailed orders and
regulations issued by the employer.” 121 S.Ct. at 1867.
In discussing the tension in the Act between the Section
2(11) definition of supervisors and the Section 2(12)
OAKWOOD HEALTHCARE, INC. 715
definition of professionals, the Court also left open the
question of the interpretation of the Section 2(11) super-
visory function of “responsible direction,” noting the
possibility of “distinguishing employees who direct the
manner of others’ performance of discrete tasks from
employees who direct other employees.” 121 S.Ct. at
1871. See Majestic Star Casino, 335 NLRB 407 (2001).
For instance, direction as to a specific and discrete task
falls below the supervisory threshold if the use of inde-
pendent judgment and discretion is circumscribed by the
superior’s standing orders and the employer’s operating
regulations, which require the individuals to contact a
superior when anything unusual occurs or when prob-
lems occur. Dynamic Science, Inc., 334 NLRB 381
(2001); Chevron Shipping Co., 317 NLRB 379, 381
(1995).
In the instant case, there is no evidence that the RNs,
whether acting as a charge nurse or a staff nurse, have
independent authority with respect to the hire, promo-
tion, demotion, layoff, recall, reward, or discharge of
employees. They do not make staffing decisions, and
they do not authorize overtime. The Employer rests its
claim of supervisory authority primarily upon other indi-
cia, i.e., the alleged ability to adjust grievances, and the
alleged authority to assign and direct the work of less-
skilled employees.
There is no evidence that the charge nurses are em-
powered to adjust any formal employee grievances.
Charge nurses are not part of the grievance process out-
lined in the Local 79 contract covering other members of
the nursing staff. For the most part, complaints or dis-
putes brought by the nursing staff to the charge nurse that
cannot be resolved quickly in an informal manner are
relayed to supervision. See Ken-Crest Services, 335
NLRB 777 (2001). Furthermore, there is a lack of evi-
dence that RNs have actually adjusted grievances. The
limited authority exercised by charge nurses to resolve
interpersonal conflicts among employees does not confer
supervisory status. St. Francis Medical Center-West,
323 NLRB 1046, 1047–1048 (1997).
For every task performed by an RN, there is a very
specific policy and procedure in writing. These proce-
dures are available for review by the RNs in their work
area; however, some of the more experienced RNs do not
need to refer to the policies and procedures on a regular
basis due to their length of experience. The limited au-
thority of RNs to assign discrete tasks to less-skilled em-
ployees, based on doctor’s orders, hospital policy and
procedures or standing orders, or what is dictated by their
profession, does not require the use of independent
judgment in the direction of other employees. Ferguson
Electric Co., 335 NLRB 142 (2001). The RNs do not
evaluate the work of the less-skilled employees or ensure
that they have completed a task or done so correctly.
The Employer asserts that charge nurses exercise inde-
pendent judgment when they assign staff nurses to par-
ticular patients or beds, by matching the level of experi-
ence of the employee with the level of acuity of the pa-
tient. However, the Employer has a very detailed written
policy for the assignment of patients by charge nurses or
assistant clinical managers. Pursuant to this policy, it is
the responsibility of clinical managers or assistant clini-
cal managers to ensure adequate staffing levels and the
composition of staff as to skill level when it comes to
caring for the patients in a particular unit. Direction as to
specific and discrete tasks and even the assignment of
employees detailing when and where they are to carry
out their duties falls below the supervisory threshold if
the use of independent judgment and discretion is super-
vised by the superior’s standing orders and the em-
ployer’s operating regulations. Dynamic Science, Inc.,
supra, 334 NLRB at 381; Chevron Shipping Co., 317
NLRB 379, 381 (1995). Furthermore, the weight of the
evidence suggests that in practice, the assignments are
routine in nature, and are based mainly on principles of
fairness and the even distribution of work. Byers Engi-
neering Corp., 324 NLRB 740 (1997); Providence Hos-
pital, supra; Ohio Masonic Home, supra. For the most
part, the schedule is based on the schedule from the pre-
vious day, and providing continuity for the patients. Fi-
nally, the RNs work together to resolve any problems
with patient assignments, based on the very nature of the
rotating charge nurse position. A charge nurse assigning
a patient to a staff nurse one day can the next day be as-
signed a patient from that same staff nurse when the roles
are reversed. A charge nurse also assigns break times for
other employees. However, the charge nurse generally
sets up the break times in order to ensure coverage on the
floor, and receives input from the nursing staff as to
when they would like to take their break.
The Employer submits that if RNs are not supervisors,
the ratio of nursing supervisors to nursing staff would be
preposterous. However, on the other hand, if all staff
nurses are found to be supervisors, the ratio of nursing
supervisors to nursing staff would be one supervisor for
less than every two employees. Naples Community Hos-
pital, 318 NLRB 272 (1995); Essbar Equipment Co., 315
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD716
NLRB 461 (1994); Beverly California Corp. v. NLRB,
970 F.2d 1548, 1550 fn. 3 (6th Cir. 1992). Furthermore,
clinical supervisors, assistant clinical managers and/or
clinical managers are present or on call 24 hours a day to
handle any problems that may arise. Consequently, I
find that the RN staff nurses/charge nurses are not statu-
tory supervisors.14
. . .

14 Due to the rotating nature of the charge nurse position, the fre-
quency with which each RN serves as a charge nurse varies. Some are
permanent charges; some spend nearly half of their time as a charge
nurse, and some are hardly ever in charge. Because I find that the
charge nurses, whether permanent or rotating, do not exercise statutory
supervisory authority, the frequency with which a particular nurse may
serve as a charge nurse is not controlling.