                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
           ___________

           No. 00-1684
           ___________

Multimedia KSDK, Inc.,                  *
                                        *
             Petitioner,                *
                                        *
      v.                                *
                                        *
National Labor Relations Board,         *
                                        *
             Respondent,                *   Petitions for Review from the
                                        *   National Labor Relations Board.
International Brotherhood of Electrical *
Workers, Local Union No. 4, AFL-CIO, *
                                        *
             Intervenor on Appeal.      *

           ___________

           No. 00-1919
           ___________

Multimedia KSDK, Inc.,                 *
                                       *
             Respondent,               *
                                       *
      v.                               *
                                       *
National Labor Relations Board,        *
                                       *
             Petitioner.               *
                                    ___________

                              Submitted: April 17, 2002

                                   Filed: September 10, 2002
                                    ___________

Before HANSEN, Chief Judge, McMILLIAN, BOWMAN, WOLLMAN, LOKEN,
      MURPHY, BYE, RILEY, and MELLOY, Circuit Judges.
                              ___________

WOLLMAN, Circuit Judge.

      Multimedia KSDK, Inc. (KSDK) operates a television station broadcasting in
St. Louis, Missouri. In 1997, sixteen producers, four assignment editors, and two
tape coordinators employed by KSDK’s news department voted to join the
International Brotherhood of Electrical Workers, Local No. 4 (the union).

       Thereafter, KSDK refused to recognize and bargain with the union, and the
National Labor Relations Board (the Board) found that KSDK had thereby violated
sections 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. §§
151-169, with respect to the assignment editors and producers. KSDK filed a petition
for review of the Board’s order. The Board cross-petitioned for enforcement of its
order, and the union intervened in support of the Board’s decision. We denied the
petition for review and granted the cross-petition, upholding the Board’s decision that
KSDK’s producers and assignment editors were not supervisors within the meaning
of the Act. Multimedia KSDK, Inc. v. NLRB, 271 F.3d 744 (8th Cir. 2001).

       KSDK then filed a petition for rehearing en banc, challenging only that portion
of the panel’s decision regarding the producers. We granted the petition for rehearing




                                         -2-
and vacated the panel’s judgment and opinion.1 Because we conclude that the Board
employed an improper legal standard in finding that the producers were not statutory
supervisors, we grant the petition for review and deny enforcement of the order as it
relates to the producers.

                                           I.

      The producers have the overall responsibility for putting together a newscast
from planning to air, and each newscast has an individual producer. The producers
attend daily meetings with the executive producer, assignment editor, the assistant
news director, and reporters to discuss ideas for news stories. The producer
ultimately decides which stories will be covered and creates a “rundown” for each
newscast. The rundown lists the stories to be covered and the order of presentation.
The rundowns are previewed by one of the executive producers, but the producers can
and do change the order and length of the news stories without seeking approval from
upper-level management. Producers do not have to secure approval of the final
rundown before the broadcast.

       In addition to creating the rundown, producers assign writers, reporters,
photographers, and graphic artists to each story. The producers instruct the other
employees as to how the story should be covered, including such things as the desired
length of the story, whether it will be shot live, whether it will use a taped interview,
what graphics will accompany the story, and more. If two anchors are involved in the
newscast, the producer for that show determines which anchor will read which
stories.




      1
        To the extent that the order granting rehearing en banc vacated the entirety of
the panel’s judgment and opinion, it is amended to refer only to that portion relating
to the producers.

                                          -3-
      The rundown for each show generally follows a format typical of the station’s
newscasts, including a set number of commercial breaks, a sports segment, and a
weather segment. The producers have the authority, however, to alter the standard
format as they deem necessary, including changing the number of the commercials
during a commercial break. The news producers do not produce the sports and
weather segments, but do determine their length and placement within individual
newscasts.

       In addition to setting the format for the newscasts, the producers are
responsible for the accuracy and style of the individual stories reported. Thus, the
producers review scripts for the stories and have the authority to instruct the writers
to make changes, even specifying how to do a re-write. Similarly, they review the
graphics produced by the graphic artists and have the authority to require changes.
Producers can question reporters regarding the factual accuracy of stories, including
inquiring about their sources of information. The producers also instruct the director
responsible for the technical production of the broadcast how stories should be
presented, determining such things as the music and graphics used for a particular
story. If a producer is not satisfied with any of the work done on a story, he or she
can decide to drop the story from the newscast.

      During the broadcast, the producers sit in the control room next to the
broadcast studio. They give the anchors various instructions during the newscast.
During the broadcast, producers can make changes to the script, add or drop stories,
or change the order of the broadcast.

       The producers have the authority to authorize overtime as needed, but they
cannot require any employees to work overtime. They also cannot hire, fire, or
discipline employees. If a producer has a problem with a particular employee, he or
she must present the issue to more senior management, who then conducts an
independent review of the issue.

                                         -4-
                                           II.

      Section 2(3) of the Act states that the “term employee . . . shall not include . . .
any individual employed as a supervisor.” 29 U.S.C. § 152(3). Because only
employees may organize and engage in collective bargaining, 29 U.S.C. § 157,
excepting supervisors from the definition of “employee” excludes them from the
protections of the Act. Section 2(11) defines “supervisor” 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 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).


      The definition set forth in § 2(11) has three components. NLRB v. Health Care
& Ret. Corp. of Am., 511 U.S. 571, 573-74 (1994). First, the employee must be
acting in the “interest of the employer.” Id. Second, the employee must have actual
authority to accomplish one of the enumerated functions. Beverly Enters.-Minnesota,
Inc. v. NLRB, 266 F.3d 785, 788 (8th Cir. 2001). This requirement is read
disjunctively; thus, an employee possessing the authority to exercise any one of the
enumerated functions satisfies the second component of the definition. Id.
Moreover, the actual exercise of the enumerated power is irrelevant so long as the
authority to do so is present. Id. Third, the authority must involve the use of
independent judgment and be more than routine or clerical in nature. Id.




                                           -5-
      We will uphold the Board’s findings regarding supervisory status under the Act
so long as they are supported by substantial evidence on the record as a whole.
Beverly Enters. v. NLRB, 148 F.3d 1042, 1045 (8th Cir. 1998). Although the Board
has broad authority to construe provisions of the Act, we will enforce the Board’s
order only if it has “correctly applied the law.” NLRB v. Young Women’s Christian
Ass’n of Metro. St. Louis, 192 F.3d 1111, 1116 (8th Cir. 1999).

       We must first determine the grounds the Board relied upon in holding that the
producers were not supervisors, because we can enforce its order only on the same
grounds it relied on. Beverly Enters., 266 F.3d at 789. The brevity of the Board’s
one-paragraph decision makes it somewhat difficult to determine what theory the
Board used as the basis for its order. The Regional Director relied on Providence
Hospital, 320 N.L.R.B. 717 (1996), in finding that because they used independent
judgment only as to the professional or technical aspects of their own work, the
producers were not supervisors. In its decision affirming the Regional Director, the
Board cited only two prior decisions as authority, King Broadcasting Co., 329
N.L.R.B. 378 (1999), and McGraw-Hill Broadcast Co., Inc., 329 N.L.R.B. 454
(1999). In both King Broadcasting and McGraw-Hill, the Board found that television
news producers with job responsibilities similar, although not identical, to KSDK’s
producers did not exercise independent judgment in the assignment or direction of
other employees. The Board stated that “the authority of an individual employee to
direct another to perform discrete tasks stemming from the directing employee’s
experience, skills, training, or position is not supervisory authority.” King Broad.,
329 N.L.R.B. at 383; see also McGraw-Hill, 329 N.L.R.B. at 457. Because they did
not exercise independent judgment, they were not supervisors, but members of a team
working together to produce a single product. King Broad., 329 N.L.R.B. at 383;
McGraw-Hill, 329 N.L.R.B. at 457. In light of the Board’s reliance on these two
decisions and its conclusory affirmance of the Regional Director’s decision, we
conclude that the Board’s order rested on the ground that because they used judgment



                                        -6-
stemming from their “own experience, skills, training, or position,” the producers did
not exercise independent judgment.

       This test, however, conflicts with the Supreme Court’s decision in NLRB v.
Kentucky River Cmty. Care, Inc., 121 S. Ct. 1861 (2001). In Kentucky River, the
Court held that the Board could not find a lack of independent judgment merely
because the judgment was based on “professional or technical skill or experience.”
Id. at 1868. The error in that standard is its exclusion of certain kinds of judgment
from the definition of independent judgment, whereas the statute only “introduces the
question of degree of judgment.” Id. at 1867-68. The Court stated that the Board’s
“professional or technical” test inserted “a startling categorical exclusion into
statutory text that does not suggest its existence.” Id. at 1867. Furthermore, the
Court specifically rejected the test employed by Providence Hospital and relied upon
by the Regional Director in this case. Id. at 1868 n.1.

       The Board’s decision in this case rests upon a categorical exclusion similar to
that rejected in Kentucky River. Section 2(11) of the Act does not exclude judgment
based on an employee’s “experience, skills, training, or position” from the definition
of independent judgment. See Public Serv. Co. of Colorado v. NLRB, 271 F.3d 1213,
1218-19 (10th Cir. 2001) (denying enforcement of Board’s order where Board held
that employees’ exercise of judgment related only to their “own responsibilities, [was]
based on their experience and technical expertise, [and did] not evidence any control
over personnel”). As with professional or technical skill or experience, one must
wonder “[w]hat supervisory judgment worth exercising . . . does not rest on” the
supervisor’s experience, skills, training, or position. Kentucky River, 121 S. Ct. at
1868.

      The Supreme Court’s rejection of the legal standard utilized by the Board
precludes us from enforcing the Board’s order. See Beverly Enters., 266 F.3d at 789.
The appropriate “method for determining the propriety of a remand,” described by the

                                         -7-
Supreme Court in Kentucky River and Heath Care, limits a remand to the Board to
cases in which the Board offers an alternative theory on which to uphold its decision.
Kentucky River, 121 S. Ct. at 1871; Health Care, 511 U.S. at 584. The Board has not
requested a remand as it did in Beverly Enters., and we do not choose to comb the
Board’s brief or the precedents it cites for possible alternative theories upon which
the Board might properly rely if the case were remanded to it.

     The petition for review is granted and the cross-petition for enforcement of the
Board’s order, except for that portion relating to the assignment editors, is denied.

BYE, Circuit Judge, with whom McMILLIAN, MURPHY, and MELLOY, Circuit
     Judges, join, dissenting.

      I agree with much of the court’s decision. The National Labor Relations Board
apparently reasoned that KSDK producers are not supervisors because their use of
independent judgment was limited to professional and technical aspects of their own
work. The Board’s attempt to eliminate professional and technical judgment from the
“independent judgment” calculus has now been rejected by the Supreme Court,
NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 713-20 (2001), and so, as
our court ably explains, we cannot approve the Board’s reasoning on its own terms.

       Appreciating this tension between the Board’s decision and Kentucky River,
the panel unearthed an independent basis for enforcing the Board’s order. The panel
held the Board’s order could be enforced on the alternative ground that “employees
[such as the KSDK producers] engaged in a largely collaborative enterprise do not
exercise ‘independent judgment’ of the type envisaged in the Act.” Multimedia
KSDK, Inc. v. NLRB, 271 F.3d 744, 751 (8th Cir. 2001). This collaboration theory
traces its lineage to several Board decisions and a Fifth Circuit decision, which held
that television station producers “do not function as supervisors, but are part of an
integrated production team, each member of which is independently capable of

                                         -8-
executing his assignment.” NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir.
1986) (quoting an earlier Board decision). Recent events have overtaken the thrust
of the panel opinion, however. In Beverly Enterprises-Minnesota, Inc. v. NLRB, 266
F.3d 785, 789 (8th Cir. 2001), we explained that a Board order may not be upheld on
an alternative ground, a decision that now precludes us from enforcing the Board’s
order in reliance on the collaboration theory.

        Though I agree with the en banc court that we may not enforce the Board’s
order on the strength of its own reasoning, I disagree that we should deny
enforcement at this juncture. Instead, I believe we should exercise our discretion to
remand this case to the Board for further review and consideration. The court’s
opinion seems to suggest we may not remand a case to the Board unless the Board
itself “offers an alternative theory on which to uphold its decision” or affirmatively
requests a remand. Ante at 8. The court cites Kentucky River and NLRB v. Health
Care & Retirement Corp. of Am., 511 U.S. 571, 584 (1994), to support this
proposition, but neither case strictly limits the power of federal courts in the manner
suggested. In both cases, the Supreme Court merely declined to exercise its
discretion to remand. The Court did not presume to lack the power to remand
altogether. Indeed, the Court has previously recognized federal courts’ discretion to
remand as circumstances and equity require. See NLRB v. Jones & Laughlin Steel
Corp., 331 U.S. 416, 428 (1947); Ford Motor Co. v. NLRB, 305 U.S. 364, 373-74
(1939).

       Though the court elects not to remand this case to the Board, I believe there are
two good reasons to do so. First, I harbor few doubts that the Board intended to rely
on the collaboration theory described above. A remand would permit the Board to
make its reliance explicit. The Board never disavowed the collaboration theory (and
in fact appeared to favor its application) in responding to the station’s petition for
rehearing en banc and at oral argument before the full court. The Board is entitled
to take the initial stab at reconciling its 29 U.S.C. § 152(11) jurisprudence with

                                          -9-
Kentucky River, since the Board, not federal courts, must delineate the “infinite
gradations” of workplace responsibility within a given industry. Schnuck Markets,
Inc. v. NLRB, 961 F.2d 700, 703 (8th Cir. 1992). It makes sense to offer the Board
a chance at reconciliation in this case, rather than waiting for fresh disputes to arise,
especially when the parties to this case are so well-equipped to assist the Board in
resolving the matter. Certainly we “may adjust [our] relief to the exigencies of the
case in accordance with the equitable principles governing judicial action.” Ford
Motor, 305 U.S. at 373.

       Second, counsel for the Board seemed to suggest at oral argument that
Kentucky River does not prefigure a sea-change in the Board’s approach to deciding
supervisor cases. I took this to mean the Board is receptive to the massive hint the
Supreme Court dropped in Kentucky River. The Court proposed that—in performing
the three-step analysis required by § 152(11)—the Board shift its traditional emphasis
away from the “independent judgment” component to allow more reasoned
development of the jurisprudence underpinning the “functions” component.

      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 distinction
      in the past, see, e.g., Providence Hospital, 320 N.L.R.B. 717, 729
      (1996).

Kentucky River, 532 U.S. at 720 (emphasis in original).

       In deciding supervisor cases, the Board infrequently devotes much attention to
the manner in which particular employees fulfill one or more of the twelve
enumerated tasks. The Board often assumes that employees perform one of those
tasks, only to decide the case based upon the employees’ exercise of independent


                                          -10-
judgment. See, e.g., Providence Hosp., 320 N.L.R.B. 717, 727 (1996) (“[W]e
conclude that whatever authority the charge nurses have to ‘assign’ RNs and other
staff members . . . is not authority that requires the use of independent judgment
within the meaning of Section 2(11). Accordingly, it is unnecessary to reach the issue
of the exact parameters of the term ‘assignment’ under Section 2(11).”); id. at 728
(“The Board has only rarely sought to define the parameters of ‘responsibly to direct.’
. . . Instead, the Board generally has treated ‘responsibly to direct’ in conjunction with
Section 2(11)’s qualifying language that the exercise of any statutory indicia ‘is not
of a merely routine or clerical nature, but requires the use of independent
judgment.’”).

       The Board’s practice of disregarding (or perhaps short-changing) one full step
of the § 152(11) analysis is regrettable. The enumerated tasks do make a difference,
as this case reflects. Much of the Board’s argument on appeal is really devoted to
proving that KSDK producers neither assign workers (because another manager sets
employee schedules), nor responsibly direct them (because, for example, producers
are not held accountable for writers’ lapses, that responsibility is the province of the
head writer). I find these arguments persuasive, but the Board did not make them in
issuing its order. A remand would afford the Board a much-needed opportunity to
reassess the importance of defining and interpreting the enumerated tasks in each
case, just as I read the Court’s opinion in Kentucky River to suggest.

      For these reasons, I would prefer to remand this case to the Board for further
consideration rather than refusing to enforce the Board’s order altogether. Despite
my agreement with much of the court’s opinion, I therefore respectfully dissent.




                                          -11-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -12-
