Jochims v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2007 Decided March 23, 2007

No. 05-1455

LISA JOCHIMS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

WILSHIRE AT LAKEWOOD,

INTERVENOR

On Petition for Review of an Order of the

National Labor Relations Board

Harold Craig Becker argued the cause and filed the briefs

for petitioner.

Daniel A. Blitz, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief were

Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Meredith L. Jason, Supervisory

Attorney.

Jeffrey M. Place was on the brief for intervenor.

Before: ROGERS and KAVANAUGH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: The petition for review in

this case was filed by Lisa Jochims, a registered nurse who was

formerly employed by Wilshire at Lakewood (“Wilshire”), a

long-term care facility. In 2002, petitioner filed an unfair labor

practice charge with the National Labor Relations Board

(“NLRB” or “Board”), asserting that she had been unlawfully

discharged by Wilshire for engaging in protected activities. The

Board’s General Counsel issued a complaint, alleging that

Wilshire’s dismissal of petitioner was an unfair labor practice in

violation of § 8(a)(1) of the National Labor Relations Act

(“Act”), 29 U.S.C. § 158(a)(1). The matter was then heard by

an Administrative Law Judge (“ALJ”), who concluded that

petitioner was a “supervisor” within the meaning of § 2(11) of

the Act, 29 U.S.C. § 152(11), and therefore unprotected by the

Act. On September 30, 2004, the Board issued its initial

decision, holding that Jochims was not a supervisor and that her

discharge violated the Act. Wilshire at Lakewood, 343 N.L.R.B.

No. 23, 2004 WL 2235906 (Sept. 30, 2004) (“Initial Decision”),

reprinted in Deferred Appendix (“App.”) at 263-79. On

September 30, 2005, after reconsideration, the Board issued a

Supplemental Decision and Order, holding that Jochims was a

supervisor under the Act and, therefore, that her dismissal was

not an unfair labor practice. Wilshire at Lakewood, 345

N.L.R.B. No. 80, 2005 WL 2451996 (Sept. 30, 2005)

(“Supplemental Decision”), reprinted in App. at 280-86.

Jochims then petitioned for review in this court.

In concluding that petitioner was a supervisor, the Board

first explained that it was “unnecessary to pass” on the question

of whether Jochims had the authority “responsibly to direct”

employees, 29 U.S.C. § 152(11), pursuant to the Court’s

decision in NLRB v. Kentucky River Community Care, Inc., 532

U.S. 706 (2001). Rather, the Board found that petitioner

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“possessed supervisory authority apart from the issue of her

responsible direction of employees.” Supplemental Decision,

345 N.L.R.B. No. 80, slip op. at 1. The Board then cited four

factors upon which it rested its finding that petitioner was a

supervisor: (1) petitioner completed written reports concerning

employee misconduct; (2) petitioner sent two employees home

for gross misconduct after receiving directions from

management to do so; (3) petitioner permitted two employees to

leave work early to attend to family emergencies; and (4)

petitioner completed part of one evaluation of a probationary

employee. As petitioner points out, there are blatant flaws in the

Board’s decision. First, “Jochims’ completion of the written

reports of misconduct was not itself discipline.” Petitioner’s Br.

at 6. Furthermore, “[t]he Board expressly found that Jochims

sent two employee[s] home after observing obvious, gross

misconduct, only after being instructed to do so by

[management.]” Id. at 6-7. Moreover, Jochims did not exercise

independent judgment when she permitted two employees to

leave work early when their children were involved in medical

emergencies. Id. at 7. And, finally, there is “a long line of prior

Board precedent holding that evaluation alone, not leading

automatically to reward or punishment, is not evidence of

supervisory status.” Id. at 8. The record clearly supports

petitioner’s contentions.

The Board’s brief to this court argues that, because Wilshire

followed a “Progressive Disciplinary Action” system, codified

in an “Employee Handbook,” petitioner’s written reports on

employee misconduct must have constituted effective

recommendations of discipline, and that this demonstrates that

she was a supervisor. This argument is nothing more than post

hoc rationalization. The Board never purported to rest on any

alleged system of “progressive discipline” in holding that

petitioner was a supervisor, and the Employee Handbook is

never even mentioned in the Board’s Supplemental Decision.

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A Board decision must be set aside when, as here, it departs

from established precedent and the judgment is not supported by

substantial evidence. On the record here, it is plain that, in

holding that petitioner was a supervisor under the Act, the Board

completely deviated from its own precedent and issued a

judgment that is devoid of substantial evidence. We therefore

reverse the Board’s Supplemental Decision, grant the petition

for review, and remand the case to the Board.

I. BACKGROUND

A. The Facts

The facts have been thoroughly detailed in the Supplemental

Decision and Initial Decision, so there is no reason for us to

repeat all of the facts here. Rather, we will merely recite notable

portions of the Board’s statement of facts and briefly summarize

other facts relevant to our disposition of the petition for review.

The parties do not dispute that, if petitioner was an “employee,”

rather than a “supervisor,” Wilshire undeniably committed an

unfair labor practice in dismissing her for engaging in protected

activities. Initial Decision, 343 N.L.R.B. No. 23, slip op. at 1

n.4. Therefore, our principal focus here is on the facts that

determine whether the Board erred in holding that petitioner was

a supervisor.

* * * *

Wilshire is a long-term care nursing home providing

residential and skilled nursing care to its residents and patients.

During the period relevant to this case, Wilshire employed

between 110 and 120 employees, who were variously assigned

to work in four halls. The nursing staff included charge nurses,

registered nurses (“RNs”), licensed practical nurses (“LPNs”),

and certified nursing assistants (“CNAs”). CNAs typically

assisted patients with the basic needs of daily living such as

eating, bathing, dressing, and assistance with the toilet. RNs and

LPNs, who are highly skilled professional nurses, were

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responsible for providing more advanced and specialized care.

And charge nurses, typically RNs or LPNs, carried the

responsibility for the oversight of the CNAs assigned to a

particular hall and the overall care of the patients who were in

residence.

Wilshire hired petitioner in August 1999. She worked at the

nursing home facility until February 2002, when Wilshire fired

her for circulating a petition protesting the employer’s proposed

plan for “role reversal” assignments. Under the proposed plan,

RNs and LPNs would occasionally perform the duties of CNAs.

Before her dismissal,

[t]he record shows that Jochims, the [employer’s] “weekend

supervisor,” was primarily involved with patient care and

interaction with patients’ families. In addition, Jochims

attended management meetings and was paid more than the

[employer’s] charge nurses. Although Jochims was the

highest ranking employee at the facility on the weekend, the

[employer] provided the weekend staff with the telephone

numbers of various managers to contact in case of an

emergency.

The record further shows that Jochims would check to

see whether employees did their tasks correctly, and could

correct employees if they did something wrong. If there

was a gross infraction of residential care, Jochims – as well

as other nursing employees not alleged to be supervisors –

could write up the employee on a disciplinary form.

Jochims decided whether to document an employee’s

infraction on the disciplinary form. If she did so, the

completed disciplinary form would be subsequently

reviewed by the [employer’s] managerial officials –

Administrator Jim Harralson or Director of Nursing Wendy

Gibson. They would determine whether the infraction

warranted disciplinary action.

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On two occasions, Jochims made an oral report that an

employee was unfit for work. On one occasion, Jochims

called the [employer’s] administrator, Jim Harralson, and

reported that a licensed practical nurse (LPN) had come to

work intoxicated. On the other occasion, Jochims told the

[employer’s] assistant director of nursing, Sheila Littrell,

that a certified nursing assistant (CNA) was taking extended

breaks and was failing to respond to patient call lights. In

both instances, Jochims was instructed to send the

employee home.

In addition, on two occasions, employees came to

Jochims and expressed a need to leave work early because

of severe health problems experienced by their young

children. On both occasions, Jochims – without first

checking with her superiors – told the employees to leave

work early.

The record also reveals that, on one occasion, Jochims

prepared a performance evaluation of one employee. In this

particular circumstance, the [employer’s] director of

nursing, Wendy Gibson, asked Jochims to fill out an

employee’s 90-day evaluation, because Gibson was not

familiar with that employee. Jochims complied with

Gibson’s directive, and filled out the portions of the

evaluation form that reflected her own observations of that

employee. Jochims also signed the evaluation.

Initial Decision, 343 N.L.R.B. No. 23, slip op. at 2. The Board

did not modify these findings in its Supplemental Decision.

On February 1, 2002, responding to complaints by CNAs

who were assigned to work on weekends, Gibson and the

nursing home’s Administrator, Jim Harralson, called a meeting

of the RNs and LPNs. Petitioner, who was working the

weekend shift, attended the meeting. Apparently, because the

CNAs had voiced concerns with management that they were not

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adequately supported by the nurses, the purpose of the meeting

was to announce that management was considering the

implementation of the role-reversal plan. Following the

meeting, petitioner circulated a petition among the nurses to

garner support in protest of management’s plan to have them

“work the floor.” The assistant director of nursing learned of the

petition and reported her discovery to Gibson on February 18,

2002. Gibson informed Harralson of the petition and Harralson

instructed her to call petitioner at home and ask her to bring the

petition to work. After obtaining and reviewing the petition,

Harralson and Gibson consulted and decided to fire petitioner,

which they did on Friday, February 22, 2002. On the same day,

Harralson and Gibson called a meeting of the nurses on duty and

informed them that no final decision had been made concerning

the role-reversal plan. Harralson expressed displeasure that the

nurses apparently were unwilling to assist the CNAs and stated

that he was disappointed that those nurses who signed the

petition did not first come to him with their complaints.

B. Proceedings Below

Petitioner filed her original unfair labor practice charge with

the Board on February 25, 2002, and amended the charge on

April 9, 2002, and again on April 15, 2002. In response to

petitioner’s filings, the Board’s General Counsel filed a

complaint against Wilshire on April 9, 2002, and an amended

complaint on April 15, 2002, alleging that the employer had

violated § 8(a)(1) of the Act. The matter was heard by an ALJ,

who concluded that Wilshire engaged in certain unfair labor

practices by interrogating employees about the Jochims petition

and creating an impression that protected activities were under

surveillance. However, the ALJ rejected petitioner’s claims,

finding her to be “a statutory supervisor at the time that she

circulated the petition regarding nurses working the floor.”

Initial Decision, 343 N.L.R.B. No. 23, slip op. at 12.

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In its Initial Decision, the Board adopted the ALJ’s finding

that Wilshire violated § 8(a)(1) by interrogating employees and

creating the impression that it was monitoring protected

activities. However, the Board rejected the ALJ’s determination

that petitioner was a statutory supervisor and, to the contrary,

found the record insufficient to show that petitioner possessed

“the requisite authority to establish that she [was] a supervisor

within the meaning of Section 2(11) of the Act.” Id. at 4. In a

2-1 decision, the Board found that Wilshire violated the Act by

firing petitioner, an employee covered by the Act, for engaging

in protected activity. Wilshire appealed the Initial Decision to

the United States Court of Appeals for the Eighth Circuit.

Before the Initial Decision could be reviewed by the Eighth

Circuit, the Board decided, sua sponte, to reconsider the

complaint. Upon reconsideration, a new panel of the Board

issued a Supplemental Decision in which it held that petitioner

was a “supervisor” under the Act. The Board relied solely on

four factors in determining that petitioner was a supervisor:

“[I]f Jochims determined that an employee committed

a gross infraction of residential care, she could, at her

discretion, document the infraction on a disciplinary form.

This disciplinary writeup would initiate further review by

managerial officials, as well as a determination of whether

further disciplinary action against the employee was

warranted.” Supplemental Decision, 345 N.L.R.B. No. 80,

slip op. at 1.

“[O]n at least two occasions, Jochims orally reported

that an employee was unfit for work. In one of these

instances, Jochims reported to the Respondent’s

Administrator that a licensed practical nurse came to work

intoxicated, and in the other instance she reported to the

director of nursing that a certified nursing assistant was

taking extended breaks and was failing to respond to patient

call lights. In each of these discussions with the

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management officials, the decision was made by the

administrator to send these employees home, and Jochims

instructed the offending employees to leave.” Id. at 1-2.

“On two occasions, Jochims was presented with an

employee request to leave before the end of the shift to

attend to a family emergency. In both instances, Jochims

independently granted the requests.” Id. at 2.

“Jochims also evaluated an employee’s performance.”

Id.

The Board then concluded: “In view of the above facts, we find,

contrary to the Board’s original decision, that Jochims possessed

supervisory authority within the meaning of Section 2(11) of the

Act.” Id. Petitioner now seeks review and reversal of the

Supplemental Decision.

II. ANALYSIS

A. Standard of Review

“Judicial review of NLRB determinations in unfair labor

practice cases is generally limited, but not so deferential that the

court will merely act as a rubber stamp for the Board’s

conclusions.” Titanium Metals Corp. v. NLRB, 392 F.3d 439,

445 (D.C. Cir. 2004). A Board order will not survive review

when its factual determinations are not supported by substantial

evidence. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522

U.S. 359, 361 (1998). A Board’s decision will also be set aside

when it has no reasonable basis in law, fails to apply the proper

legal standards, or departs from established precedent without

reasoned justification. Titanium Metals Corp., 392 F.3d at 446.

At bottom, a reviewing court will uphold a Board decision

only if it is “rational and consistent with the Act,” and so long

as the Board’s reasoning is not “inadequate, irrational, or

arbitrary.” Allentown Mack, 522 U.S. at 364 (internal citations

and quotation marks omitted). In other words, we must uphold

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the judgment of the Board unless, upon reviewing the record as

a whole, we conclude that the Board’s findings are not

supported by “substantial evidence,” 29 U.S.C. § 160(f), or that

“the Board acted arbitrarily or otherwise erred in applying

established law to the facts of the case.” Int’l Union of

Electronic, Electrical, Salaried, Mach. & Furniture Workers v.

NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994) (internal quotation

marks omitted). For the reasons stated below, we conclude that

the Board’s Supplemental Decision is fatally flawed, because the

Board misapplied its own precedent and issued a judgment that

is devoid of substantial evidence.

B. The Meaning of “Supervisor” Under the Act

Section 2 of the Act, 29 U.S.C. § 152, defines “employee”

specifically to exclude “any individual employed as a

supervisor,” id. § 152(3), and defines a 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,” id. § 152(11). In order to be

considered a supervisor under the Act, an individual “must

possess at least one of the twelve types of authority set out in the

statute,” VIP Health Servs., Inc. v. NLRB, 164 F.3d 644, 648

(D.C. Cir. 1999), and “the exercise of such authority [cannot be]

of a merely routine or clerical nature, but requires the use of

independent judgment,” 29 U.S.C. § 152(11). As the Supreme

Court has noted:

The text of § 2(11) . . . sets forth a three-part test for

determining supervisory status. Employees are statutory

supervisors 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.”

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NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 712-13

(2001) (quoting NLRB v. Health Care & Ret. Corp. of Am., 511

U.S. 571, 573-74 (1994)).

“Because the issue of supervisory status is heavily

fact-dependent and job duties vary, per se rules designating

certain classes of jobs as always or never supervisory are

generally inappropriate.” Brusco Tug & Barge Co. v. NLRB,

247 F.3d 273, 276 (D.C. Cir. 2001). Moreover, “[b]ecause of

the serious consequences of an erroneous determination of

supervisory status, particular caution is warranted before

concluding that a worker is a supervisor despite the fact that the

purported supervisory authority has not been exercised.”

Beverly Enters.-Mass., Inc. v. NLRB, 165 F.3d 960, 963 (D.C.

Cir. 1999). In other words, supervisory authority is not

conferred on an employee merely by vesting her with a title. If

an employee has not actually exercised supervisory authority,

“there must be other affirmative indications of authority.

Statements by management purporting to confer authority do not

alone suffice.” Id. Finally, the burden of proving supervisory

status rests on the party who asserts it. Ky. River Cmty. Care,

532 U.S. at 710-12.

C. What This Case Is Not About

Before reviewing the Board’s Supplemental Decision, it is

important to be clear on what this case is not about. First, the

Board’s decision in this case does not rest on the Supreme

Court’s decision in Kentucky River Community Care. In that

case, the Board argued that, in applying the three-part test for

determining supervisory status under the Act, employees cannot

be seen to 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.” 532 U.S. at 713. The Supreme

Court rejected this interpretation of § 2(11), insofar as it

suggested that “the judgment even of employees who are

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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.” Id. at 714 (internal quotation marks omitted).

In its Initial Decision in this case, the Board stated:

Jochims also testified that employees would come to her

with complaints or problems, and she would “counsel

them” and give “some direction on how to handle the

situation.” This evidence of authority to “correct” is,

however, insufficient to satisfy the Respondent’s burden to

show that Jochims exercised independent judgment to

responsibly direct employees in the performance of their

duties, as required by Section 2(11).[FN 6]

[FN 6] Thus, we find that supervisory status has not

been established under any interpretation of NLRB v.

Kentucky River Community Care . . . .

Initial Decision, 343 N.L.R.B. No. 23, slip op. at 2. In its

Supplemental Decision, however, the Board expressly retreated

from any discussion of or reliance on NLRB v. Kentucky River

Community Care:

At the outset, we note that the Board’s original decision

found the record evidence insufficient to establish that

Jochims exercised independent judgment to responsibly

direct employees “under any interpretation of NLRB v.

Kentucky River Community Care,” 532 U.S. 706 (2001).

We recognize that this finding, without further explanation,

could raise a substantial issue . . . as to whether there is a

clearly articulated rationale for the finding that Jochims is

not a supervisor. However, after reconsidering the record,

we find it unnecessary to pass on that issue, because we

find, as explained below, that Jochims possessed

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supervisory authority apart from the issue of her responsible

direction of employees.

Supplemental Decision, 345 N.L.R.B. No. 80, slip op. at 1

(internal citation omitted). It is therefore clear that the Board’s

holding that petitioner was a supervisor does not rest on a

determination that Jochims had the authority to “responsibly

direct” other employees “in the interest of the employer.”

During oral argument, Board counsel confirmed that the

NLRB’s position did not rest on the “responsibly direct” portion

of § 2(11) of the Act.

Second, this case is not about petitioner’s involvement in a

“system” of progressive discipline. As noted above, the Board’s

brief to this court argues that petitioner’s written reports on

employee misconduct constituted the first step in Wilshire’s

“Progressive Disciplinary Action” system which is described in

an “Employee Handbook.” This, according to Board counsel,

confirms that petitioner was a supervisor. This is a specious

argument. The Board’s Supplemental Decision nowhere

concludes that petitioner acted pursuant to a Progressive

Disciplinary Action system; nor does the Board’s decision even

mention an Employee Handbook in support of its holding that

petitioner was a supervisor. The progressive

discipline/employee handbook argument is nothing more than

counsel’s post hoc rationalization, which of course we will not

credit in our review of the Board’s Supplemental Decision. See

Point Park Univ. v. NLRB, 457 F.3d 42, 50 (D.C. Cir. 2006)

(“We can only look to the Board’s stated rationale. We cannot

sustain its action on some other basis the Board did not

mention.”).

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D. The Board’s Flawed Supplemental Decision

In justifying its holding that petitioner was a supervisor, the

Board relied solely on four factors. As we show below, under

clearly established case law and agency precedent, none of these

factors supports a finding of supervisory status under the Act.

Absent this factual support, there is nothing to justify the

conclusion reached in the Board’s Supplemental Decision. In

other words, the Board’s judgment lacks both reasoned

decisionmaking and substantial evidence.

1. Preparing Written Reports Concerning Employee

Misconduct

It is undisputed that petitioner had the authority to “write

up” employees who violated work rules. The record indicates

that, on nine occasions, petitioner completed forms – variously

described as “Employee Incident/Accident Report,” “Employee

Counseling Form,” or “Employee Disciplinary Form” –

detailing employee misdeeds. These forms reported such

transgressions as failing to complete patient treatments, arriving

late to work, and sleeping on duty. Petitioner signed the forms

as “supervisor” or “immediate supervisor.” Whenever petitioner

completed a form, it was placed in the employee’s personnel

file. The writeups were not considered to be discipline. Rather,

as the Board found, a writeup might later be used for “possible

discipline.” Supplemental Decision, 345 N.L.R.B. No. 80, slip

op. at 2.

In support of its claim that petitioner’s authority to write up

employees is proof that she had the “discretion to initiate the

disciplinary process against an employee,” the Board advances

a strange argument: “[I]f Jochims exercised her discretion not

to write up an employee, there would be no discipline against

that employee.” Board’s Br. at 27. There is absolutely nothing

in the record to support this assertion. Indeed, at oral argument,

counsel acknowledged that an employee could be disciplined by

15

management whether or not petitioner had submitted a writeup.

Furthermore, there is nothing to indicate that petitioner’s

writeups were deemed final and authoritative by management.

A decision to discipline an employee rested with Wilshire

management, not with petitioner.

The case law makes it clear that petitioner’s bare authority

as a charging nurse to write up employee infractions cannot,

without more, be viewed as creditable evidence of supervisory

status:

[T]he issuance of written warnings that do not alone affect

job status or tenure do not constitute supervisory authority.

....

[F]or the issuance of reprimands or warnings to constitute

statutory supervisory authority, the warning must not only

initiate, or be considered in determining future disciplinary

action, but also it must be the basis of later personnel action

without independent investigation or review by other

supervisors.

Phelps Cmty. Med. Ctr., 295 N.L.R.B. 486, 490 (1989) (citation

omitted). A long line of Board precedent, dealing specifically

with nursing homes, establishes that written reprimands do not,

in and of themselves, constitute discipline or serve as evidence

of supervisory authority. See, e.g., Ohio Masonic Home, 295

N.L.R.B. 390, 393 (1989) (“Although these documents are

placed in an employee’s personnel file, the record does not

establish that these warnings automatically lead to any further

discipline or adverse action against an employee.”); Hausner

Hard-Chrome of Ky., Inc., 326 N.L.R.B. 426, 427 (1998)

(holding that written reprimands do not constitute disciplinary

authority where the “actual disciplinary action” was taken by an

administrator and the record contained no evidence that “job

affecting discipline (such as a suspension) had been imposed on

the basis of [the reprimand].”).

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Actually, it is of little moment that petitioner had “[t]he

authority to . . . write up warnings on forms retained in the

employee’s personnel file.” Ten Broeck Commons, 320

N.L.R.B. 806, 812 (1996). This is “typical in cases involving

nursing-home charge nurses.” Id. Under Board precedent, such

authority is not supervisory unless it results in “personnel action

. . . taken without independent investigation or review by

others.” Id. There is no evidence in this case that petitioner’s

authority to write up an employee was a prerequisite to

discipline, or that it routinely resulted in discipline against an

employee, or that it inevitably resulted in the initiation of

discipline. A writeup created the “possibility” of discipline,

nothing more. Under established case law, this is not enough to

show supervisory status. Compare Franklin Home Health

Agency, 337 N.L.R.B. 826, 830 (2002) (“Reporting on incidents

of employee misconduct is not supervisory if the reports do not

always lead to discipline, and do not contain disciplinary

recommendations.”), with Progressive Transp. Servs., Inc., 340

N.L.R.B. 1044, 1045 (2003) (“The 33 disciplinary notices in the

record signed by Yozzo establish that . . . when Yozzo decides

that a potential disciplinary issue should be brought to [her

supervisor’s] attention, discipline ensues.”).

2. Sending Two Employees Home for Gross Misconduct

After Receiving Directions from Management To Do

So

The Board also argues that “Jochims’ authority to discipline

employees is further evident from her orally reporting that two

employees were unfit for work.” Board’s Br. at 33. The

Board’s description of these two incidents, without more, makes

it clear that they give no evidence that petitioner acted as a

supervisor:

On one occasion, Jochims saw that an employee was

slumped over, with her head resting on the counter of the

nurses station. Jochims investigated the matter by asking

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an LPN what was going on. The LPN informed Jochims

that the employee was drunk and smelled of alcohol.

Jochims called Administrator Harralson to inform him

about this, and Harralson told Jochims that she should

collect a urine sample from the employee and send her

home. The LPN provided a urine sample to Jochims and

went home.

On another occasion, Jochims noticed that CNA Sue

Brisbin was eating breakfast behind the nurses station, and

was failing to answer residents’ call lights in violation of

the Home’s policies. A charge nurse approached Jochims

and told her that Brisbin was taking numerous breaks and

had left the facility without telling the charge nurse that she

was leaving. Jochims called Assistant Director of Nursing

Littrell to tell her about Brisbin’s actions, and the nurses’

frustration about her behavior. Littrell told Jochims “to go

ahead and send [Brisbin] home.”

Board’s Br. at 34 (internal citations omitted). What is

noteworthy about this statement of the facts is the Board’s

acknowledgment that petitioner neither made the decision to

send the employees home nor recommended any such action.

The Board attempted to discount these facts by arguing that

“Jochims exercised independent judgment in initiating the

process that led to the employees being sent home.”

Supplemental Decision, 345 N.L.R.B. No. 80, slip op. at 3. This

surely is not enough under the case law to establish supervisory

status.

In Phelps Community Medical Center, the Board held that

a nurse was not a supervisor in a situation in which it was “clear

from the director of nursing’s testimony that the LPN called the

director of nursing before sending the aide home.” 295

N.L.R.B. at 489. The Board held that the mere call to higher

management precluded a finding of supervisory status, because

“[w]hether the call was to obtain permission or simply to inform

18

the LPN’s superior, the fact remains that the director of nursing

was afforded an opportunity to review the proposed action and

either approve or countermand it.” Id. at 492. Once petitioner

was instructed by management to release an employee, her

execution of those instructions was a routine task that did not

involve independent judgment. See VIP Health Servs., 164 F.3d

at 649.

Moreover, “even if Jochims had herself sent employees

home on rare occasions for obvious violations of the rules, it did

not require independent judgment.” Petitioner’s Br. at 32. The

case law plainly supports this point. See, e.g., Vencor Hosp. -

L.A., 328 N.L.R.B. 1136, 1139 (1999) (“Although there was

testimony that the RN team leaders have the authority to send an

employee home, such authority is limited to situations involving

egregious misconduct, i.e., behavior which endangers the health

or safety of the patients. Such authority when limited to flagrant

employee conduct is typically found by the Board not to

constitute statutory supervisor authority.”); Northcrest Nursing

Home, 313 N.L.R.B. 491, 497 (1993) (“[M]any cases indicate

that charge nurses have authority to suspend employees for

flagrant violations such as drunkenness or abuse of patients.

The Board has not found this an indicium of supervisory status

because no independent judgment is involved; the offenses are

obvious violations of the employers’ policies and speak for

themselves.”); Phelps, 295 N.L.R.B. at 492 (regarding “extreme

circumstances” discipline, “the Board has long held that

authority that is limited to taking action in response to flagrant

violation of common working conditions, such as being drunk,

is insufficient by itself to establish supervisory status”) (internal

quotation marks omitted); Waverly-Cedar Falls Health Care,

297 N.L.R.B. 390, 393 (1989) (“The Board has held that

authority that is limited to taking action in response to flagrant

violations, such as being drunk, is insufficient by itself to

establish supervisory status.”); Loffland Bros., 243 N.L.R.B. 74,

75 n.4 (1979) (“[T]he Board has consistently held that authority

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to discharge which is limited to flagrant violation of common

working conditions, such as being drunk, is insufficient by itself

to establish supervisory status.”).

3. Acknowledging Two Employees’ Requests To Leave

Work To Attend to Family Emergencies

In a further attempt to support its conclusion that petitioner

was a supervisor, the Board points to evidence that, on two

occasions, petitioner allowed employees to leave work early to

attend to personal matters. Board’s Br. at 17. “The first time,

a nursing assistant approached Jochims and told Jochims that

her son’s daycare had informed her that her son had hurt his

head, and that he probably needed to be taken to an emergency

room.” Id. “On the second occasion, a CNA approached

Jochims and told her that she had been informed that her young

son was having an asthma attack, and that she needed to leave.”

Id. The Board argues that these incidents show that petitioner

acted as a supervisor, because she “did not consult with any

managerial officials” before allowing the employees to go home.

Id. The record and applicable precedent paint a very different

picture.

The Board found in its Initial Decision that “[t]hese isolated

and exigent circumstances, involving compelling medical

emergencies, show nothing more than the mere acquiescence by

Jochims in the obvious need of these employees to go home.”

343 N.L.R.B. No. 23, slip op. at 3. Moreover, petitioner

correctly notes that she “testified that she did not grant any

requests to leave early, but merely acknowledged that the

employees were leaving early out of necessity.” Petitioner’s Br.

at 36. Petitioner also contends that “[i]n neither of the two cases

cited by the Board did Jochims grant a request to leave work

early. Rather, she simply acknowledged that the situations were

emergencies and that the employees had to leave.” Id. And

petitioner presses the point that she “testified repeatedly that she

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did not have authority to allow employees to leave work early.”

Id.

It really does not matter whether petitioner granted the

employees permission to leave the facility or merely

acknowledged that they were leaving to care for their sick

children. Board precedent makes clear that supervisory

authority does not necessarily lie where “authority to let

employees leave early [] was limited to emergency situations

that did not require the exercise of independent judgment, e.g.,

if someone were sick or had to deal with a family crisis.” K.W.

Elec. Inc. & Int’l Bhd. of Elec. Workers, 342 N.L.R.B. 1231,

1235-36 (2004) (emphasis added). In other words, even if

petitioner had the authority to allow employees to go home in an

emergency, this alone would not prove supervisory status.

“[P]ermitting an employee to leave early due to illness is a duty

accomplished in a perfunctory manner not requiring the exercise

of any discretion.” Eventide South, 239 N.L.R.B. 287, 288

(1978) (internal quotation marks omitted); see also Alois Box

Co., 326 N.L.R.B. 1177, 1177-78 (1998), enf’d, 216 F.3d 69

(D.C. Cir. 2000); Hydro Conduit Corp., 254 N.L.R.B. 433, 439

(1981); Pinecrest Convalescent Home, Inc., 222 N.L.R.B. 13, 13

(1976).

4. Completing Part of One Employee’s Evaluation When

Requested by Management To Do So

Finally, the Board asserts that petitioner exercised

supervisory authority when, on one occasion, she partially filled

out a performance evaluation form on a probationary employee.

This argument borders on frivolous, for it is clear that an

evaluation does not indicate supervisory authority unless it

effectively recommends discipline or directly affects an

employee’s job status. See Lakeview Health Ctr., 308 N.L.R.B.

75, 78 (1992); see also Franklin Home Health, 337 N.L.R.B. at

831 (finding no supervisory authority where employer “ha[d]

not identified or documented any specific instances in which . . .

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evaluations had . . . an effect [on wages or job status].”). As

with its unsuccessful attempt to show supervisory authority by

virtue of written reports on employee misconduct, the Board has

“failed to establish the crucial link between evaluations and an

effect on employee job status.” Crittenton Hosp., 328 N.L.R.B.

879, 879 (1999).

5. Secondary Indicia of Supervisory Authority

The Board additionally points to “secondary indicia” of

petitioner’s purported supervisory authority – such as facts that

petitioner was often the senior and most highly compensated

employee at the Wilshire nursing home, and that she held the

title of “weekend supervisor” – to support the judgment reached

in the Supplemental Decision. This resort to secondary indicia

of supervisory authority cannot rescue the Board’s flawed

reasoning. “It is settled that secondary indicia, including the

individual’s job title or designation as supervisor, as well as the

perception of others that the individual is a supervisor may be

used in making supervisory determinations when evidence of

primary indicia is present.” Avante at Wilson, Inc., 348

N.L.R.B. No. 71, at 6, 2006 WL 3146785, *10 (2006) (emphasis

added); see also VIP Health Servs., 164 F.3d at 648 (stating that

an employee “must possess at least one of the twelve types of

authority set out in the statute” in order to have supervisory

status).

Apart from being only secondary evidence, and thus not

creditable without primary indicia of supervisory status, the

evidence cited by the Board falls on its own terms. First, it is

clear that “[i]f the persons whom the Employer contends are in

charge do not possess Section 2(11) supervisory authority, then

the absence of anyone else with such authority does not then

automatically confer it upon [those persons].” Id. at 649-50.

Furthermore, “[i]t is well settled that ‘the status of a supervisor

under the Act is determined by an individual’s duties, not by

[her] title or job classification.’” Dole Fresh Vegetables, Inc.,

22

339 N.L.R.B. 785, 785 (2003) (quoting T.K. Harvin & Sons, 316

N.L.R.B. 510, 530 (1995)).

III. CONCLUSION

The evidence cited by the Board does not support the

conclusion that petitioner was a supervisor under the Act.

Therefore, the Board’s judgment in this case rests on nothing.

Obviously, such a judgment must fail both for want of reasoned

decisionmaking and a lack of substantial evidence.

Accordingly, for the reasons indicated above, we reverse the

Board’s Supplemental Decision, grant the petition for review,

and remand the case to the Board.