NATIONAL LABOR RELATIONS BOARD v. KENTUCKY RIVER COMMUNITY CARE, INC., et al.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
706 OCTOBER TERM, 2000
Syllabus
NATIONAL LABOR RELATIONS BOARD v.
KENTUCKY RIVER COMMUNITY
CARE, INC., et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 99–1815. Argued February 21, 2001—Decided May 29, 2001
When co-respondent labor union petitioned the National Labor Relations
Board to represent a unit of employees at respondent’s residential care
facility, respondent objected to the inclusion of its registered nurses
in the unit, arguing that they were “supervisors” under § 2(11) of the
National Labor Relations Act (Act), 29 U. S. C. § 152(11), and hence ex-
cluded from the Act’s protections. At the representation hearing, the
Board’s Regional Director placed the burden of proving supervisory
status on respondent, found that respondent had not carried its burden,
and included the nurses in the unit. Thereafter, respondent refused to
bargain with the union, leading the Board’s General Counsel to file an
unfair labor practice complaint. The Board granted the General Coun-
sel summary judgment on the basis of the representation determination,
but the Sixth Circuit refused to enforce the Board’s order. It rejected
the Board’s interpretation of “independent judgment” in § 2(11)’s test
for supervisory status, and held that the Board had erred in placing the
burden of proving supervisory status on respondent.
Held:
1. Respondent carries the burden of proving the nurses’ supervisory
status in the representation hearing and unfair labor practice pro-
ceeding. The Act does not expressly allocate the burden of proving
or disproving supervisory status, but the Board has consistently placed
the burden on the party claiming that the employee is a supervisor.
That rule is both reasonable and consistent with the Act, which makes
supervisors an exception to the general class of employees. It is not
contrary to the requirement that the Board must prove the elements of
an unfair labor practice, because supervisory status is not an element
of the Board’s refusal-to-bargain charge. The Board must prove that
the employer refused to bargain with the representative of a properly
certified unit; the unit was not properly certified only if respondent
successfully showed at the certification stage that some employees in
the unit were supervisors. Pp. 710–712.
2. The Board’s test for determining supervisory status is inconsistent
with the Act. The Act deems employees to be “supervisors” if they

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
707 Cite as: 532 U. S. 706 (2001)
Syllabus
(1) exercise 1 of 12 listed supervisory functions, including “responsibly
direct[ing]” other employees, (2) use “independent judgment” in ex-
ercising their authority, and (3) hold their authority in the employer’s
interest, § 2(11). The Board rejected respondent’s proof of supervisory
status on the ground that employees do not use “independent judgment”
under § 2(11) when they exercise “ordinary professional or technical
judgment in directing less-skilled employees to deliver services in
accordance with employer-specified standards.” Brief for Petitioner 11.
This interpretation, by distinguishing different kinds of judgment,
introduces a categorical exclusion into statutory text that does not
suggest its existence. The text permits questions regarding the degree
of discretion an employee exercises, but the Board’s interpretation
renders determinative factors that have nothing to do with degree:
even a significant judgment only loosely constrained by the employer
will not be independent if it is “professional or technical.” The Board
limits its categorical exclusion with a qualifier that is no less striking:
only professional judgment applied in directing less skilled employees
to deliver services is not “independent judgment.” Hence, the ex-
clusion would apply to only 1 of the listed supervisory functions—“re-
sponsibly to direct”—though all 12 require using independent judgment.
Contrary to the Board’s contention, Congress did not incorporate the
Board’s categorical restrictions on “independent judgment” when it
first added “supervisor” to the Act in 1947. The Board’s policy con-
cern regarding the proper balance of labor-management power can-
not be given effect through this statutory text. Because this Court
may not enforce the Board’s order by applying a legal standard the
Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267, 289–
290, the Board’s error precludes the Court from enforcing its order.
Pp. 712–722.
193 F. 3d 444, affirmed.
Scalia, J., delivered the opinion for a unanimous Court with respect
to Part II, and the opinion of the Court with respect to Parts I and III,
in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ.,
joined. Stevens, J., filed an opinion concurring in part and dissenting in
part, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 722.
Deputy Solicitor General Wallace argued the cause for
petitioner. With him on the briefs were former Solicitor
General Waxman, Matthew D. Roberts, Leonard R. Page,
John H. Ferguson, Norton J. Come, and John Emad Arbab.
Thomas J. Schulz, Jonathan P. Hiatt, James B. Coppess, and

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
708 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
Laurence Gold filed briefs for Kentucky State District Coun-
cil of Carpenters as respondent under this Court’s Rule 12.6
in support of petitioner.
Michael W. Hawkins argued the cause for respondent
Kentucky River Community Care, Inc. With him on the
brief were Louise S. Brock and Cheryl E. Bruner.*
Justice Scalia delivered the opinion of the Court.
Under the National Labor Relations Act, employees are
deemed to be “supervisors” and thereby excluded from the
protections of the Act if, inter alia, they exercise “inde-
pendent judgment” in “responsibly . . . direct[ing]” other
employees “in the interest of the employer.” 29 U. S. C.
§ 152(11). This case presents two questions: which party
in an unfair-labor-practice proceeding bears the burden of
proving or disproving an employee’s supervisory status;
and whether judgment is not “independent judgment” to
the extent that it is informed by professional or technical
training or experience.
I
In Pippa Passes, Kentucky, respondent Kentucky River
Community Care, Inc., operates a care facility for resi-
dents who suffer from mental retardation and mental illness.
The facility, named the Caney Creek Developmental Com-
plex (Caney Creek), employs approximately 110 professional
and nonprofessional employees in addition to roughly a dozen
concededly managerial or supervisory employees. In 1997,
the Kentucky State District Council of Carpenters (a labor
*Briefs of amici curiae urging reversal were filed for the American
Nurses Association by Barbara J. Sapin and Woody N. Peterson; and for
the Service Employees International Union et al. by Judith A. Scott,
Diana O. Ceresi, Robert E. Funk, Jr., David J. Strom, Jack Dempsey, and
Larry Weinberg.
Briefs of amici curiae urging affirmance were filed for the American
Health Care Association by Thomas V. Walsh and Thomas P. McDonough;
and for Human Resource Management et al. by G. Roger King.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
709 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
union that is co-respondent here, supporting petitioner) peti-
tioned the National Labor Relations Board to represent a
single unit of all 110 potentially eligible employees at Caney
Creek. See National Labor Relations Act (Act) § 9(c), 49
Stat. 453, 29 U. S. C. § 159(c).
At the ensuing representation hearing, respondent ob-
jected to the inclusion of Caney Creek’s six registered
nurses in the bargaining unit, arguing that they were “super-
visors” under § 2(11) of the Act, 29 U. S. C. § 152(11), and
therefore excluded from the class of “employees” subject to
the Act’s protection and includable in the bargaining unit.
See § 2(3), 29 U. S. C. § 152(3). The Board’s Regional Di-
rector, to whom the Board has delegated its initial authority
to determine an appropriate bargaining unit, see § 3(b), 29
U. S. C. § 153(b); 29 CFR § 101.21 (2000), placed the burden
of proving supervisory status on respondent, found that re-
spondent had not carried its burden, and therefore included
the nurses in the bargaining unit. The Regional Director
accordingly directed an election to determine whether the
union would represent the unit. See § 9(c)(1), 29 U. S. C.
§ 159(c)(1). The Board denied respondent’s request for re-
view of the Regional Director’s decision and direction of
election, and the union won the election and was certified as
the representative of the Caney Creek employees.
Because direct judicial review of representation determi-
nations is unavailable, AFL v. NLRB, 308 U. S. 401, 409–411
(1940), respondent sought indirect review by refusing to bar-
gain with the union, thereby inducing the General Counsel
of the Board to file an unfair labor practice complaint under
§§ 8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§ 158(a)(1), (5).
The Board granted summary judgment to the General Coun-
sel pursuant to regulations providing that, absent newly de-
veloped evidence, the propriety of a bargaining unit may
not be relitigated in an unfair labor practice hearing predi-
cated on a challenge to the representation determination.
29 CFR § 102.67(f) (2000); see Magnesium Casting Co. v.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
710 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
NLRB, 401 U. S. 137, 139–141 (1971) (approving that prac-
tice); Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146,
161–162 (1941) (same).
Respondent petitioned for review of the Board’s decision
in the United States Court of Appeals for the Sixth Circuit,
and the Board cross-petitioned. The Sixth Circuit granted
respondent’s petition as it applied to the nurses and refused
to enforce the bargaining order. It held that the Board had
erred in placing the burden of proving supervisory status
on respondent rather than on its General Counsel, and it
rejected the Board’s interpretation of “independent judg-
ment,” explaining that the Board had erred by classifying
“the practice of a nurse supervising a nurse’s aide in ad-
ministering patient care” as “ ‘routine’ [simply] because
the nurses have the ability to direct patient care by vir-
tue of their training and expertise, not because of their
connection with ‘management.’ ” 193 F. 3d 444, 453 (1999).
We granted the Board’s petition for a writ of certiorari. 530
U. S. 1304 (2000).
II
The Act expressly defines the term “supervisor” in § 2(11),
which provides:
“The term ‘supervisor’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, 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 action, if in connection with the fore-
going the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of inde-
pendent judgment.” 29 U. S. C. § 152(11).
The Act does not, however, expressly allocate the burden
of proving or disproving a challenged employee’s super-
visory status. The Board therefore has filled the statutory
gap with the consistent rule that the burden is borne by

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
711 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
the party claiming that the employee is a supervisor. For
example, when the General Counsel seeks to attribute the
conduct of certain employees to the employer by virtue
of their supervisory status, this rule dictates that he
bear the burden of proving supervisory status. See, e. g.,
Masterform Tool Co., 327 N. L. R. B. 1071, 1071–1072 (1999).
Or, when a union challenges certain ballots cast in a repre-
sentation election on the basis that they were cast by super-
visors, the union bears the burden. See, e. g., Panaro and
Grimes, 321 N. L. R. B. 811, 812 (1996).
The Board argues that the Court of Appeals for the Sixth
Circuit erred in not deferring to its resolution of the stat-
utory ambiguity, and we agree. The Board’s rule is sup-
ported by “the general rule of statutory construction that
the burden of proving justification or exemption under a
special exception to the prohibitions of a statute generally
rests on one who claims its benefits.” FTC v. Morton Salt
Co., 334 U. S. 37, 44–45 (1948). The Act’s definition of “em-
ployee,” § 2(3), 29 U. S. C. § 152(3), “reiterate[s] the breadth
of the ordinary dictionary definition” of that term, so that
it includes “any ‘person who works for another in return
for financial or other compensation.’ ” NLRB v. Town &
Country Elec., Inc., 516 U. S. 85, 90 (1995) (quoting American
Heritage Dictionary 604 (3d ed. 1992)). Supervisors would
fall within the class of employees, were they not expressly
excepted from it. See Sure-Tan, Inc. v. NLRB, 467 U. S.
883, 891 (1984); cf. Packard Motor Car Co. v. NLRB, 330 U. S.
485 (1947). The burden of proving the applicability of the
supervisory exception, under Morton Salt, should thus fall
on the party asserting it. In addition, it is easier to prove
an employee’s authority to exercise 1 of the 12 listed super-
visory functions than to disprove an employee’s authority
to exercise any of those functions, and practicality therefore
favors placing the burden on the party asserting supervisory
status. We find that the Board’s rule for allocating the bur-
den of proof is reasonable and consistent with the Act, and

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
712 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
we therefore defer to it. NLRB v. Transportation Manage-
ment Corp., 462 U. S. 393, 402–403 (1983).
Applying its rule to this case, the Board placed on re-
spondent the duty to prove the supervisory status of its
nurses both in the § 9(c) representation proceeding, where
respondent sought to exclude the nurses from the bar-
gaining unit prior to the election, and in the unfair labor
practice hearing, where respondent defended against the
§ 8(a)(5) refusal-to-bargain charge. Respondent challenges
the application of the rule to the latter proceeding where,
it correctly observes and the Board does not dispute, “the
General Counsel carries the burden of proving the elements
of an unfair labor practice,” id., at 401, which means that
it bears the burden of persuasion as well as of production,
see Administrative Procedure Act, 5 U. S. C. § 556(d); Di-
rector, Office of Workers’ Compensation Programs v. Green-
wich Collieries, 512 U. S. 267, 276–278 (1994) (rejecting
statement to contrary in NLRB v. Transportation Manage-
ment Corp., supra, at 404, n. 7). Supervisory status, how-
ever, is not an element of the Board’s claim in this setting.
The Board must prove that the employer refused to bargain
with the representative of a unit of “employees,” § 8(a)(5),
29 U. S. C. § 158(a)(5), that was properly certified; the unit
was not properly certified (as the respondent contends) only
if the respondent successfully demonstrated, at the cer-
tification stage, that some employees in the unit were also
supervisors. In the unfair labor practice proceeding, there-
fore, the burden remains on the employer to establish the
excepted status of these nurses. Insofar as the Court of
Appeals held otherwise, it erred. It remains to consider
whether the court’s other holding that is challenged here
suffices to sustain its judgment.
III
The text of § 2(11) of the Act that we quoted above,
29 U. S. C. § 152(11), sets forth a three-part test for deter-

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
713 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
mining supervisory status. Employees are statutory super-
visors if (1) they hold the authority to engage in any 1 of the
12 listed supervisory functions, (2) their “exercise of such
authority is not of a merely routine or clerical nature, but
requires the use of independent judgment,” and (3) their
authority is held “in the interest of the employer.” NLRB
v. Health Care & Retirement Corp. of America, 511 U. S.
571, 573–574 (1994). The only basis asserted by the Board,
before the Court of Appeals and here, for rejecting re-
spondent’s proof of supervisory status with respect to di-
recting patient care was the Board’s interpretation of the
second part of the test—to wit, that employees do not use
“independent judgment” when they exercise “ordinary
professional or technical judgment in directing less-skilled
employees to deliver services in accordance with employer-
specified standards.” Brief for Petitioner 11. The Court
of Appeals rejected that interpretation, and so do we.
Two aspects of the Board’s interpretation are reasonable,
and hence controlling on this Court, see NLRB v. Town &
Country Elec., Inc., supra, at 89–90; Chevron U. S. A. Inc.
v. Natural Resources Defense Council, Inc., 467 U. S. 837,
842–844 (1984). First, it is certainly true that the statutory
term “independent judgment” is ambiguous with respect to
the degree of discretion required for supervisory status.
See NLRB v. Health Care & Retirement Corp. of America,
supra, at 579. Many nominally supervisory functions may
be performed without the “exercis[e of] such a degree of . . .
judgment or discretion . . . as would warrant a finding” of
supervisory status under the Act. Weyerhaeuser Timber
Co., 85 N. L. R. B. 1170, 1173 (1949). It falls clearly within
the Board’s discretion to determine, within reason, what
scope of discretion qualifies. Second, as reflected in the
Board’s phrase “in accordance with employer-specified stand-
ards,” it is also undoubtedly true that the degree of judg-
ment that might ordinarily be required to conduct a par-
ticular task may be reduced below the statutory threshold

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
714 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
by detailed orders and regulations issued by the employer.
So, for example, in Chevron Shipping Co., 317 N. L. R. B.
379, 381 (1995), the Board concluded that “although the
contested licensed officers are imbued with a great deal of
responsibility, their use of independent judgment and dis-
cretion is circumscribed by the master’s standing orders,
and the Operating Regulations, which require the watch
officer to contact a superior officer when anything unusual
occurs or when problems occur.”
The Board, however, argues further that the judgment
even of employees who are permitted by their employer to
exercise a sufficient degree of discretion is not “independent
judgment” if it is a particular kind of judgment, namely,
“ordinary professional or technical judgment in directing
less-skilled employees to deliver services.” Brief for Peti-
tioner 11. The first five words of this interpretation insert
a startling categorical exclusion into statutory text that
does not suggest its existence. The text, by focusing on the
“clerical” or “routine” (as opposed to “independent”) nature
of the judgment, introduces the question of degree of judg-
ment that we have agreed falls within the reasonable dis-
cretion of the Board to resolve. But the Board’s categorical
exclusion turns on factors that have nothing to do with the
degree of discretion an employee exercises. Cf. Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 481 (2001)
(“[T]he agency’s interpretation goes beyond the limits of
what is ambiguous and contradicts what in our view is quite
clear”). Let the judgment be significant and only loosely
constrained by the employer; if it is “professional or tech-
nical” it will nonetheless not be independent.1 The breadth
1 The Board in its reply brief in this Court steps back from this interpre-
tation and argues that it has only drawn distinctions between degrees
of authority. Reply Brief for Petitioner 3. But the opinions of the Board
that developed its current interpretation of “independent judgment”
clearly draw a categorical distinction. See, e. g., Providence Hospital,
320 N. L. R. B. 717, 729 (1996) (“Section 2(11) supervisory authority does

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
715 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
of this exclusion is made all the more startling by virtue
of the Board’s extension of it to judgment based on greater
“experience” as well as formal training. See Reply Brief
for Petitioner 3 (“professional or technical skill or experi-
ence”). What supervisory judgment worth exercising, one
must wonder, does not rest on “professional or technical
skill or experience”? If the Board applied this aspect of
its test to every exercise of a supervisory function, it would
virtually eliminate “supervisors” from the Act. Cf. NLRB
v. Yeshiva Univ., 444 U. S. 672, 687 (1980) (Excluding “de-
cisions . . . based on . . . professional expertise” would risk
“the indiscriminate recharacterization as covered employees
of professionals working in supervisory and managerial
capacities”).
As it happens, though, only one class of supervisors would
be eliminated in practice, because the Board limits its cate-
gorical exclusion with a qualifier: Only professional judg-
ment that is applied “in directing less-skilled employees
to deliver services” is excluded from the statutory category
of “independent judgment.” Brief for Petitioner 11. This
second rule is no less striking than the first, and is directly
contrary to the text of the statute. Every supervisory func-
tion listed by the Act is accompanied by the statutory re-
quirement that its exercise “requir[e] the use of independent
judgment” before supervisory status will obtain, § 152(11),
but the Board would apply its restriction upon “independent
judgment” to just 1 of the 12 listed functions: “responsibly
not include the authority of an employee to direct another to perform
discrete tasks stemming from the directing employee’s experience,
skills, training, or position”). It is those opinions that were cited in the
Regional Director’s opinion resolving the representation dispute, see App.
to Pet. for Cert. 52a–53a, which was accepted without further review by
the Board and was unreviewable in the unfair labor practice proceeding.
“We do not, of course, substitute counsel’s post hoc rationale for the rea-
soning supplied by the Board itself.” NLRB v. Yeshiva Univ., 444 U. S.
672, 685, n. 22 (1980) (citing SEC v. Chenery Corp., 332 U. S. 194, 196
(1947)).

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
716 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
to direct.” There is no apparent textual justification for
this asymmetrical limitation, and the Board has offered none.
Surely no conceptual justification can be found in the propo-
sition that supervisors exercise professional, technical, or ex-
perienced judgment only when they direct other employees.
Decisions “to hire, . . . suspend, lay off, recall, promote, dis-
charge, . . . or discipline” other employees, ibid., must often
depend upon that same judgment, which enables assessment
of the employee’s proficiency in performing his job. See
NLRB v. Yeshiva Univ., supra, at 686 (“[M]ost professionals
in managerial positions continue to draw on their special
skills and training”). Yet in no opinion that we were able
to discover has the Board held that a supervisor’s judg-
ment in hiring, disciplining, or promoting another employee
ceased to be “independent judgment” because it depended
upon the supervisor’s professional or technical training or
experience. When an employee exercises one of these func-
tions with judgment that possesses a sufficient degree of in-
dependence, the Board invariably finds supervisory status.
See, e. g., Trustees of Noble Hospital, 218 N. L. R. B. 1441,
1442 (1975).
The Board’s refusal to apply its limiting interpretation of
“independent judgment” to any supervisory function other
than responsibly directing other employees is particularly
troubling because just seven years ago we rejected the
Board’s interpretation of part three of the supervisory test
that similarly was applied only to the same supervisory
function. See NLRB v. Health Care & Retirement Corp.
of America, 511 U. S. 571 (1994). In Health Care, the Board
argued that nurses did not exercise their authority “in the
interest of the employer,” as § 152(11) requires, when their
“independent judgment [was] exercised incidental to pro-
fessional or technical judgment” instead of for “disciplinary
or other matters, i. e., in addition to treatment of patients.”
Northcrest Nursing Home, 313 N. L. R. B. 491, 505 (1993).
It did not escape our notice that the target of this analy-

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
717 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
sis was the supervisory function of responsible direction.
“Under § 2(11),” we noted, “an employee who in the course
of employment uses independent judgment to engage in
1 of the 12 listed activities, including responsible direction
of other employees, is a supervisor. Under the Board’s test,
however, a nurse who in the course of employment uses in-
dependent judgment to engage in responsible direction of
other employees is not a supervisor.” 511 U. S., at 578–579.
We therefore rejected the Board’s analysis as “inconsistent
with . . . the statutory language,” because it “rea[d] the re-
sponsible direction portion of § 2(11) out of the statute in
nurse cases.” Id., at 579–580. It is impossible to avoid the
conclusion that the Board’s interpretation of “independent
judgment,” applied to nurses for the first time after our de-
cision in Health Care, has precisely the same object. This
interpretation of “independent judgment” is no less strained
than the interpretation of “in the interest of the employer”
that it has succeeded.2 Cf. Allentown Mack Sales & Serv-
ice, Inc. v. NLRB, 522 U. S. 359, 374 (1998) (an agency that
announces one principle but applies another is not acting
rationally under the Act).
The Board contends, however, that Congress incorporated
the Board’s categorical restrictions on “independent judg-
ment” when it first added the term “supervisor” to the Act
in 1947. We think history shows the opposite. The Act as
originally passed by Congress in 1935 did not mention super-
visors directly. It extended to “employees” the “right to
self-organization, to form, join, or assist labor organizations,
2 Justice Stevens argues in this case, see post, at 725–726 (opinion
concurring in part and dissenting in part), as the Board argued in NLRB
v. Health Care & Retirement Corp. of America, 511 U. S. 571, 579 (1994),
that the strain is eased by the ambiguity of a different term in the statute,
“responsibly to direct.” That argument is no more persuasive now than
when we rejected it in Health Care: “[A]mbiguity in one portion of a
statute does not give the Board license to distort other provisions of
the statute,” ibid.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
718 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
[and] to bargain collectively through representatives of their
own choosing . . . .” Act of July 5, 1935, § 7, 49 Stat. 452,
and it defined “employee” expansively (if circularly) to “in-
clude any employee,” § 2(3). We therefore held that super-
visors were protected by the Act. Packard Motor Car Co.
v. NLRB, 330 U. S. 485 (1947). Congress in response added
to the Act the exemption we had found lacking. The Labor
Management Relations Act, 1947 (Taft-Hartley Act) ex-
pressly excluded “supervisors” from the definition of “em-
ployees” and thereby from the protections of the Act. § 2(3),
61 Stat. 137, as amended, 29 U. S. C. § 152(3) (“The term
‘employee’ . . . shall not include . . . any individual employed
as a supervisor”); Taft-Hartley Act § 14(a), as amended,
29 U. S. C. § 164(a) (“[N]o employer [covered by the Act]
shall be compelled to deem individuals defined herein as
supervisors as employees for the purpose of any law, either
national or local, relating to collective bargaining”).
Well before the Taft-Hartley Act added the term “super-
visor” to the Act, however, the Board had already been de-
fining it, because while the Board agreed that supervisors
were protected by the 1935 Act, it also determined that they
should not be placed in the same bargaining unit as the
employees they oversaw. To distinguish the two groups,
the Board defined “supervisors” as employees who “super-
vise or direct the work of [other] employees . . . , and who
have authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of such employees.”
Douglas Aircraft Co., 50 N. L. R. B. 784, 787 (1943) (emphasis
added). The “and” bears emphasis because it was a true
conjunctive: The Board consistently held that employees
whose only supervisory function was directing the work
of other employees were not “supervisors” within its test.
For example, in Bunting Brass & Bronze Co., 58 N. L. R. B.
618, 620 (1944), the Board wrote: “We are of the opinion that,
while linemen do direct the work of [other] employees, they
do not exercise substantial supervisory authority within the

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
719 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
usual meaning of that term.” See also, e. g., Duval Texas
Sulphur Co., 53 N. L. R. B. 1387, 1390–1391 (1943) (“As to
the chief electrician, motor mechanic, plant engineers, and
drillers, . . . [t]he fact that they work with helpers, and per-
force direct and guide the work of their helpers, does not,
of itself, elevate them to such supervisory rank that they
must be excluded from the broad production and mainte-
nance unit”).
When the Taft-Hartley Act added the term “supervisor”
to the Act in 1947, it largely borrowed the Board’s definition
of the term, with one notable exception: Whereas the Board
required a supervisor to direct the work of other employees
and perform another listed function, the Act permitted di-
rection alone to suffice. “The term ‘supervisor’ means any
individual having authority . . . to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or dis-
cipline other employees, or responsibly to direct them, or
to adjust their grievances.” Taft-Hartley Act § 2(11), as
amended, 29 U. S. C. § 152(11) (emphasis added). Moreover,
the Act assuredly did not incorporate the Board’s current
interpretation of the term “independent judgment” as
applied to the function of responsible direction, since the
Board had not yet developed that interpretation. It had
had no reason to do so, because it had limited the cate-
gory of supervisors more directly, by requiring functions
in addition to responsible direction. It is the Act’s altera-
tion of precisely that aspect of the Board’s jurisprudence that
has pushed the Board into a running struggle to limit the
impact of “responsibly to direct” on the number of employees
qualifying for supervisory status—presumably driven by the
policy concern that otherwise the proper balance of labor-
management power will be disrupted.
It is upon that policy concern that the Board ultimately
rests its defense of its interpretation of “independent judg-
ment.” In arguments that parallel those expressed by the
dissent in Health Care, see 511 U. S., at 588–590 (Gins-

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
720 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of the Court
burg, J., dissenting), and which are adopted by Justice
Stevens in this case, see post, at 726–727, the Board con-
tends that its interpretation is necessary to preserve the in-
clusion of “professional employees” within the coverage of
the Act. See § 2(12), 29 U. S. C. § 152(12). Professional em-
ployees by definition engage in work “involving the consist-
ent exercise of discretion and judgment.” § 152(12)(a)(ii).
Therefore, the Board argues (enlisting dictum from our deci-
sion in NLRB v. Yeshiva Univ., 444 U. S., at 690, and n. 30,
that was rejected in Health Care, see 511 U. S., at 581–582),
if judgment of that sort makes one a supervisor under
§ 152(11), then Congress’s intent to include professionals in
the Act will be frustrated, because “many professional em-
ployees (such as lawyers, doctors, and nurses) customarily
give judgment-based direction to the less-skilled employees
with whom they work,” Brief for Petitioner 33. The prob-
lem with the argument is not the soundness of its labor policy
(the Board is entitled to judge that without our constant
second-guessing, see, e. g., NLRB v. Curtin Matheson Sci-
entific, Inc., 494 U. S. 775, 786 (1990)). It is that the policy
cannot be given effect through this statutory text. See
Health Care, supra, at 581 (“[T]here may be ‘some tension
between the Act’s exclusion of [supervisory and] managerial
employees and its inclusion of professionals,’ but we find
no authority for ‘suggesting that that tension can be re-
solved’ by distorting the statutory language in the manner
proposed by the Board”) (quoting NLRB v. Yeshiva Univ.,
supra, at 686). Perhaps the Board could offer a limiting
interpretation of the supervisory 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. Certain
of the Board’s decisions appear to have drawn that dis-
tinction in the past, see, e. g., Providence Hospital, 320
N. L. R. B. 717, 729 (1996). We have no occasion to con-
sider it here, however, because the Board has carefully

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
721 Cite as: 532 U. S. 706 (2001)
Opinion of the Court
insisted that the proper interpretation of “responsibly to
direct” is not at issue in this case, see Brief for Petitioner
21–22, n. 9; Reply Brief for Petitioner 7–8, n. 6.
What is at issue is the Board’s contention that the policy
of covering professional employees under the Act justifies
the categorical exclusion of professional judgments from a
term, “independent judgment,” that naturally includes them.
And further, that it justifies limiting this categorical ex-
clusion to the supervisory function of responsibly direct-
ing other employees. These contentions contradict both
the text and structure of the statute, and they contradict
as well the rule of Health Care that the test for super-
visory status applies no differently to professionals than
to other employees. 511 U. S., at 581. We therefore find
the Board’s interpretation unlawful. See Allentown Mack
Sales & Service, Inc. v. NLRB, 522 U. S., at 364 (“Courts
must defer to the requirements imposed by the Board if
they are ‘rational and consistent with the Act,’ and if the
Board’s ‘explication is not inadequate, irrational or arbi-
trary’ ” (citations omitted)).
* * *
We may not enforce the Board’s order by applying a
legal standard the Board did not adopt, NLRB v. Bell Aero-
space Co., 416 U. S. 267, 289–290 (1974); SEC v. Chenery
Corp., 318 U. S. 80, 87–88 (1943), and, as we noted above,
supra, at 713, the Board has not asked us to do so. Hence,
the Board’s error in interpreting “independent judgment”
precludes us from enforcing its order. Our decision in
Health Care, where the Board similarly had not asserted
that its decision was correct on grounds apart from the one
we rejected, see 511 U. S., at 584, simply affirmed the judg-
ment of the Court of Appeals denying enforcement. Since
that same condition applies here, see Brief for Petitioner 14,
42, and since neither party has suggested that Health Care’s
method for determining the propriety of a remand should

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
722 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of Stevens, J.
not apply here, we take the same course.3 “Our conclusion
that the Court of Appeals was correct to find the Board’s
test inconsistent with the statute . . . suffices to resolve the
case.” Health Care, supra, at 584. The judgment of the
Court of Appeals is affirmed.
It is so ordered.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, concurring in part and
dissenting in part.
In my opinion, the National Labor Relations Board cor-
rectly found that respondent, Kentucky River Community
Care, Inc., failed to prove that the six registered nurses em-
ployed at its facility in Pippa Passes, Kentucky, are “super-
visors” within the meaning of the National Labor Relations
Act. While we are unanimous in holding that the Court of
Appeals set aside that finding based upon an incorrect alloca-
tion of the burden of proof, we disagree as to whether the
Court of Appeals correctly concluded that the Board mis-
interpreted the provision of the NLRA excluding super-
visors from the Act’s coverage. Moreover, even if I agreed
with the majority’s view that the Board’s interpretation was
error, that error would not justify affirming the erroneous
decision of the Court of Appeals.
3 Our decision in Health Care cannot be distinguished, as Justice
Stevens suggests, see post, at 729, n. 10, on the ground that there we
found that the Court of Appeals had not erred in any respect. The basis
for remand to an agency is the agency’s error on a point of law, not the
reviewing court’s. (That the reviewing court erred is irrelevant in light
of “the settled rule that, in reviewing the decision of a lower court, it
must be affirmed if the result is correct ‘although the lower court relied
upon a wrong ground or gave a wrong reason,’ ” SEC v. Chenery Corp.,
318 U. S. 80, 88 (1943) (quoting Helvering v. Gowran, 302 U. S. 238, 245
(1937)).) And in Health Care, as here, the Board erred in interpreting
the test for supervisory status.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
723 Cite as: 532 U. S. 706 (2001)
Opinion of Stevens, J.
I
In the proceedings before the Board, respondent relied
heavily on the fact that two registered nurses (RNs) served
as “building supervisors” on weekends, and on the second
and third shifts. However, as the Regional Director who
considered the evidence noted, the RNs received no extra
compensation for serving as building supervisors and did
not have keys to the facility. Instead, the only additional
responsibility shouldered by the RNs when serving as build-
ing supervisors was that of contacting other employees if
a shift was not fully staffed according to preestablished
ratios not set by the RNs. However, the RNs had no au-
thority to compel an employee to stay on duty or to come to
work to fill a vacancy under threat of discipline.
With respect to the RNs’ regular duties, while they might
“occasionally request other employees to perform routine
tasks,” they had no “authority to take any action if the em-
ployee refuse[d] their directives.” 1 App. to Pet. for Cert.
51a. In their routine work, they had no “authority to hire,
fire, reward, promote or independently discipline employees
or to effectively recommend such action. They did not eval-
uate employees or take any action which would affect their
employment status.” Id., at 52a. Indeed, the RNs, even
when serving as “building supervisors,” for the most part
“work[ed] independently and by themselves without any
subordinates.” Ibid.
Based on his evaluation of the evidence, the NLRB’s Re-
gional Director applied “the same test to registered nurses
as is applicable to all other individuals in determining super-
visory status.” Ibid. Under that test, he concluded that
“only supervisory personnel vested with ‘genuine manage-
ment prerogatives’ should be considered supervisors, and
not ‘straw bosses, leadmen, set-up men and other minor
1 The RNs did have the authority to file “incident reports, but so [could]
any other employee.” App. to Pet. for Cert. 51a.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
724 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of Stevens, J.
supervisory employees.’ ” Id., at 53a (quoting Chicago Me-
tallic Corp., 273 N. L. R. B. 1677, 1688 (1985)). He did, how-
ever, exclude from the bargaining unit 10 specific super-
visors including the nursing coordinator. App. to Pet. for
Cert. 54a.
Over the dissent of Judge Jones, the Court of Appeals
set aside the Board’s order. The panel majority first criti-
cized the Board for ignoring its “repeated admonition”
that the NLRB “ ‘has the burden of proving that employees
are not supervisors.’ ” Id., at 15a. After acknowledging
that “whether an employee is a supervisor is a highly fact-
intensive inquiry,” that majority concluded that the RNs’
duties as building supervisors involved “independent judg-
ment which is not limited to, or inherent in, the professional
training of nurses.” Id., at 16a–19a. The panel majority
also criticized the NLRB for interpreting the admittedly
ambiguous statutory term “independent judgment” incon-
sistently with Sixth Circuit precedent.2
II
Although it is not necessary to do so to overturn the Court
of Appeals’ decision, the NLRB has asked us to reject the
Sixth Circuit’s interpretation of the term “independent
judgment.” In contrast to the Sixth Circuit, the NLRB
interprets the term “independent judgment” as not includ-
ing the exercise of ordinary professional or technical judg-
ment in directing less-skilled employees to deliver services
in accordance with employer-specified standards.3 Provi-
2 “According to NLRB interpretations, the practice of a nurse super-
vising a nurse’s aide in administering patient care, for example, does not
involve ‘independent judgment.’ The NLRB classifies these activities as
‘routine’ because the nurses have the ability to direct patient care by
virtue of their training and expertise, not because of their connection
with ‘management.’ ” Id., at 17a.
3 Oddly, the majority in this Court omits one element—namely, “ ‘in
accordance with employer-specified standards.’ ” Ante, at 715–716. In so

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
725 Cite as: 532 U. S. 706 (2001)
Opinion of Stevens, J.
dence Hospital, 320 N. L. R. B. 717 (1996), enforced, 121 F. 3d
548 (CA9 1997); Nymed, Inc., 320 N. L. R. B. 806 (1996); see
also, e. g., Graphics Typography, Inc., 217 N. L. R. B. 1047,
1053 (1975), enforced mem., 547 F. 2d 1162 (CA3 1976). The
Board’s interpretation is a familiar one, which has been rou-
tinely applied in other employment contexts. See Provi-
dence, 320 N. L. R. B., at 717; Graphics Typography, 217
N. L. R. B., at 1053. Applying that interpretation, the
NLRB has concluded that in some cases the employees in
question are supervisors, and that in others they are not.4
See Brief for Petitioner 17–19, nn. 5–7 (collecting cases); see
also Brief for Respondent Kentucky State District Council
of Carpenters 36, n. 16 (collecting cases).
The question before us is whether the Board’s interpreta-
tion is both “rational and consistent with the Act.” 5 NLRB
v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 796 (1990);
see Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S.
27, 42 (1987). To my mind, the Board’s test is both fully
rational and entirely consistent with the Act.
The term “independent judgment” is indisputably am-
biguous, and it is settled law that the NLRB’s interpretation
doing, it ignores a key nuance in the NLRB’s position. That, however,
is characteristic of the majority’s treatment of the NLRB’s position,
which is at once more fact specific and far less categorical than the ma-
jority makes it out to be.
4 The majority, however, pays scant heed to the adjudicative record
when it asserts that the Board’s interpretation would in essence elimi-
nate the supervisory exception with respect to the “responsibly to direct”
function. See ante, at 714–715.
5 “[I]n many . . . contexts of labor policy, ‘[t]he ultimate problem is
the balancing of the conflicting legitimate interests. The function of
striking that balance to effectuate national labor policy is often a difficult
and delicate responsibility, which the Congress committed primarily to
the National Labor Relations Board, subject to limited judicial review.’ ”
Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978) (quoting NLRB
v. Truck Drivers, 353 U. S. 87, 96 (1957)).

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
726 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of Stevens, J.
of ambiguous language in the National Labor Relations Act
is entitled to deference.6 See NLRB v. Health Care and
Retirement Corporation, 511 U. S. 571, 579 (1994) (HCR);
Auciello Iron Works, Inc. v. NLRB, 517 U. S. 781, 787–788
(1996); Curtin Matheson Scientific, Inc., 494 U. S., at 786–
787. Such deference is particularly appropriate when the
statutory ambiguity is compounded by the use of one am-
biguous term—“independent judgment”—to modify another,
equally ambiguous term—namely, “responsibly to direct.”
Moreover, since Congress has expressly provided that pro-
fessional employees are entitled to the protection of the Act,
there is good reason to resolve the ambiguities consistently
with the Board’s interpretation. At the same time that
Congress acted to exclude supervisors from the NLRA’s
protection, it explicitly extended those same protections
to professionals, who, by definition, engage in work that
involves “the consistent exercise of discretion and judgment
in its performance.” 7 29 U. S. C. § 152(12)(a)(ii). As this
Court has acknowledged, the inclusion of professional em-
ployees and the exclusion of supervisors necessarily gives
rise to some tension in the statutory text. Cf. NLRB v.
Yeshiva Univ., 444 U. S. 672, 686 (1980). Accordingly, if the
term “supervisor” is construed too broadly, without regard
for the statutory context, then Congress’ inclusion of profes-
6 The majority suggests that the Board’s interpretation of the term
“independent judgment” is particularly problematic in light of this Court’s
decision in NLRB v. Health Care & Retirement Corp. of America, 511
U. S. 571 (1994) (HCR). But in HCR, this Court concluded that the terms
“independent judgment” and “responsibly to direct” were ambiguous,
while the term at issue in that case, “in the interest of the employer,”
was not. Id., at 579.
7 As the American Nurses Association points out in its amicus brief,
the scope of nursing practice routinely involves the exercise of judgment
and the supervision of others. Brief for American Nurses Association as
Amicus Curiae 2–6.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
727 Cite as: 532 U. S. 706 (2001)
Opinion of Stevens, J.
sionals within the Act’s protections is effectively nullified.8
See HCR, 511 U. S., at 585 (Ginsburg, J., dissenting). In
my opinion, the Court’s approach does precisely what it ac-
cuses the Board of doing—namely, reading one part of the
statute to the exclusion of the other.
The Court acknowledges today that deference is appro-
priate when the Board determines both the degree of dis-
cretion required for supervisory status as well as the signifi-
cance of limitations on the alleged supervisor’s discretion
imposed by the employer. Thus, in a case like this, a court
should not second-guess the Board’s evaluation of the au-
thority of the nurses as building supervisors, or of the sig-
nificance of the employer’s definition of that authority.
However, in a tour de force supported by little more than
ipse dixit, the Court concludes that no deference is due the
Board’s evaluation of the “kind of judgment” that pro-
fessional employees exercise. Ante, at 714 (emphasis de-
leted). Thus, under the Court’s view, it is impermissible for
the Board to attach a different weight to a nurse’s judgment
that an employee should be reassigned or disciplined than to
a nurse’s judgment that the employee should take a patient’s
temperature, even if nurses routinely instruct others to take
a patient’s temperature but do not ordinarily reassign or dis-
cipline employees. The Court’s approach finds no support
in the text of the statute, and is inconsistent with our case
law. See, e. g., Yeshiva, 444 U. S., at 690 (“Only if an employ-
ee’s activities fall outside the scope of the duties routinely
8 Moreover, so broad a reading seems contrary to congressional intent
in enacting the supervisory exception. Rather, the definition of “super-
visor” was intended to apply only to those employees with “genuine man-
agement prerogatives” so that those employees excluded from the Act’s
coverage would be “truly supervisory.” S. Rep. No. 105, 80th Cong., 1st
Sess., pp. 4, 19 (1947), 1 NLRB, Legislative History of the Labor Manage-
ment Relations Act, 1947, pp. 410, 425 (1948).

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
728 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of Stevens, J.
performed by similarly situated professionals will he be
found aligned with management”).9
The Court further argues that the Board errs by not
applying its limiting interpretation of the term “independent
judgment” to all 12 functions identified by the statute as
supervisory in nature. Ante, at 715–716. But of those 12,
it is only “responsibly to direct” that is ambiguous and thus
capable of swallowing the whole if not narrowly construed.
The authority to “promote” or to “discharge,” to use only
two examples, is specific and readily identifiable. In con-
trast, the authority “responsibly to direct” is far more vague.
Thus, it is only logical for the term “independent judgment”
to take on different contours depending on the nature of the
supervisory function at issue and its comparative ambiguity.
Simply put, these are quintessential examples of terms
that the expert agency should be allowed to interpret in the
light of the policies animating the statute. See, e. g., Curtin
Matheson, 494 U. S., at 786; Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).
Because the Board’s interpretation is fully consistent both
with the statutory text and with the policy favoring collec-
tive bargaining by professional employees, this Court is obli-
gated to uphold it.
III
Even if I shared the majority’s view that the term “in-
dependent judgment” should be given the same meaning
when applied to each of the 12 supervisory functions and
when applied to professional and nonprofessional employees,
I would not simply affirm the judgment of the Court of Ap-
peals. Cf. NLRB v. Bell Aerospace Co., 416 U. S. 267, 289–
290 (1974); SEC v. Chenery Corp., 318 U. S. 80, 87–88 (1943).
The Court’s rejection of the Board’s interpretation of the
9 In fact, in Yeshiva, 444 U. S., at 690, this Court concluded that the
NLRB’s decisions adopting such an approach “accurately capture[d]
the intent of Congress.”

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
729 Cite as: 532 U. S. 706 (2001)
Opinion of Stevens, J.
term “independent judgment” does not justify a categorical
affirmance of the Sixth Circuit’s decision, which rests in part
on an erroneous allocation of the burden of proof.10
In any case, I do not agree with the majority’s view.
Given the Regional Director’s findings that the RNs’ duties
as building supervisors do not qualify them as “supervisors”
within the meaning of 29 U. S. C. § 152(11), and that they,
“ ‘for the most part, work independently and by themselves
without any subordinates,’ ” it is absolutely clear that the
nurses in question are covered by the NLRA.11 193 F. 3d
444, 457 (CA6 1999). The Court’s willingness to treat them
as supervisors even if they have no subordinates 12 is par-
ticularly ironic when compared to the Board’s undisturbed
decision to deny supervisory status to the other group of
professionals employed by respondent—namely, the 20 reha-
bilitation counselors who supervise the work of 40 rehabilita-
tion assistants.
10 Even under the Court’s approach, since the NLRB might well prevail
under the correct allocation of the burden of proof, the appropriate course
of action in this case would be to return the case to the NLRB for further
proceedings. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974);
see also Electrical Workers v. NLRB, 366 U. S. 667 (1961); Ford Motor Co.
v. NLRB, 305 U. S. 364 (1939). HCR, on which the majority relies, see
ante, at 721–722, is not to the contrary. In that case, unlike in this one,
we found no error in the lower court’s decision. Here, however, the lower
court erred in its allocation of the burden of proof, a fact which would
seem to make a remand to the NLRB in order to apply what the majority
deems to be the correct legal principle particularly appropriate.
11 Nor do the RNs exercise any of the other supervisorial functions
listed in § 152(11). They play no role in assigning staff to shifts on a
permanent basis or in setting the staff-to-resident ratio. App. 18–19,
23–24. As noted above, the RNs, whether functioning in their ordinary
capacity or as “building supervisors,” do not have authority to hire, fire,
reward, promote, or independently discipline employees, or to effectively
recommend such action. Nor, for that matter, do they evaluate employees
or take action that would affect their employment status.
12 Neither the licensed practical nurses nor the rehabilitation assistants
report to the RNs. Id., at 30, 34, 45, 61.

532US3 Unit: $U58 [09-11-02 06:51:16] PAGES PGT: OPIN
730 NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC.
Opinion of Stevens, J.
Accordingly, while I join Part II of the Court’s opinion,
I respectfully dissent from its holding. I would reverse the
judgment of the Court of Appeals.