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
 3

“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.
 4

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
 5

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.
 6

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
 7

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.
 8

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
 9

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
 10

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.”
 11

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
 12

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
 13

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].”).
 16

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
 17

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
 19

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
 20

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 . . .
 21

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.