dissenting:
This case is rightly considered a close one. It is close because the governing decision by the Supreme court, NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994) (hereafter H.C.R.) was decided by a five-to-four vote of the Court and because of the existence in this circuit of precedents which give more deference to the Board than H.C.R. permits. Applying H.C.R., we must decide against the Board.
The case is governed by the same statute, whose relevant terms bear repeating: A supervisor is
[A]ny 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 action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11).
As in H.C.R. the Board has created an ambiguity in the statute that it purports to resolve by its interpretation. The Board declares:
“Our basic disagreement with our dissenting colleague is that he fails to fully recognize that the ‘essence’ of the job of all RNs, and not just charge nurses, is ‘judgment’. The evidence in this case demonstrates that all RNs, in whatever their capacity, regularly exercise judgment as professional employees that differs little in effect from any additional authority exercised by RNs when serving as charge nurses. As explained above, the essence of professionalism requires the exercise of expert judgment and the essence of supervision requires the exercise of independent judgment. And as detailed below, the alleged supervisory independent judgment of charge nurses when examined in detail becomes indistinguishable from the professional judgment exercised by all RNs.” *556Providence Hosp., 520 N.L.R.B. 717, 730 (1996).
Finding professional judgment “indistinguishable” from supervisory independent judgment, the Board in effect declares that a professional who is supervising other professionals cannot be a supervisor. The Board seriously distorts the statute which requires only two things of a supervisor: the ability “responsibly to direct” and “the use of independent judgment.” Making the use of independent judgment a disqualifying factor, the Board reads the statute backwards.
What the Board has done in this case is exactly analogous to what it did in its earlier test disapproved in H.C.R.: “Under the Board’s test, however, a nurse who in the course of employment uses independent judgment to engage in responsible direction of other employees is not a supervisor.” H.C.R., 511 U.S. at 579, 114 S.Ct. at 1783. As the Court remarked on this position: “The Board provides no plausible justification, however, for reading the responsible direction portion of § 2(11) out of the statute in nurse cases, and we can perceive none.” Id. No plausible justification is provided for doing the same thing here.
The Board has shown considerable hostility to the exclusion of managerial professionals from bargaining units. As in H.C.R. and in NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980), the Board tries to deal with the tension in the Act between the exclusion of supervisory employees and the Act’s inclusion of professionals by developing a policy to deal with the tension. But it is not permissible for the Board to resolve the tension and develop its own policy by distorting the statutory language. Id. at 686,100 S.Ct. at 864.
The Board’s own practice and precedent does not support the Board’s position as Member Cohen forcefully noted in his dissent from the Board’s decision. In the Board’s § 8(a)(1) cases the Board has found supervisory status with respect to individuals having authority comparable to the charge nurses. See, e.g., Great American Products, 312 N.L.R.B. 962 (1993); Clark & Wilkins Industries, Inc., 290 N.L.R.B. 106 (1988). Specifically as to nurses the Board found in the unfair labor practice eases that charge nurses were supervisors. Avon Convalescent Center, Inc., 200 N.L.R.B. 702 (1972), enforced, N.L.R.B. v. Avon Convalescent Center, Inc., 490 F.2d 1384 (6th Cir.1974); Rockville Nursing Center, 193 N.L.R.B. 959 (1971).
In the decision that was appealed in H.C.R. the Board did not challenge the exercise of supervisory powers of the charge nurses and did not argue that they lacked independent judgment. It was only when the Board’s position was rejected by the Supreme court in H.C.R. that the Board’s new interpretation saw the light of day. Deference should not be accorded an interpretation that it has taken 50 years to reach and, as member Cohen suggested, has been brought forward as an end run around H.C.R. as decided by the Supreme Court.
What do the charge nurses do? At the beginning of each shift they assign patients to nurses. To do so the charge nurse considers the needs of the patient, the skills of the staff and the experience of the staff members available. Of course that assignment requires professional judgment. Of course that assignment requires independent judgment. Anyone who has had the experience of being a patient in a hospital knows that the thoughtful matching of nurse to patient is a high art. The judgment exercised is not, in the language of the statute, “routine or clerical.” That the charge nurse in exercising this judgment may call on the experience and skill she has accumulated in her regular role as a nurse does not for a moment make the judgment she uses less than independent.
The assignment function alone would establish the charge nurses as supervisors. In addition, they determine whether the center which they are in charge of is overstaffed or understaffed. They effectively decide when to ask the person under their direction to work overtime. They approve breaks by the other nurses. They fill out evaluations for management of the performance of the other nurses. These functions confirm their supervisory status. In recognition of it they are paid more than the regular RNs when they serve as charge nurses.
*557As the charge nurses should not have been included in the bargaining unit, the election should be invalidated and it is unnecessary to consider the position of the home health care team leaders and the team leader assistants. There can be little doubt that they, too, “responsibly direct” other employees and exercise a professional and independent judgment that qualifies them as supervisors.
I would deny enforcement of the order of the Board.