In a recent District of Columbia Circuit Court decision, Jochims v. NLRB, 2007 WL 860854 (D.C. Cir. Mar. 23, 2007), the court reversed the National Labor Relations Board’s (“NLRB”) decision that a registered nurse who worked as a “weekend supervisor” at a Missouri nursing home was a supervisor under the National Labor Relations Act (“NLRA”). Because she was not a supervisor as defined by the NLRA, the nurse was legally protected from discharge because of her opposition to management’s actions.
The case stems from an NLRB unfair labor practice charge filed by Lisa Jochims, a registered nurse whose employment was terminated for circulating a petition protesting a management proposal regarding a change in work conditions. The NLRB initially determined that Jochims was not a supervisor and that the nursing home violated the NLRA by terminating her employment. Prior to appellate review, the NLRB reconsidered its initial opinion and issued a supplemental decision, finding that Jochims was a supervisor as defined by the NLRA. Jochims appealed the NLRB’s supplemental decision.
Under the NLRA, the definition of an “employee” covered by the Act specifically excludes “any individual employed as a supervisor.” The Act defines a “supervisor” as “any individual having authority, in the interest of the employer” to, among other types of authority, hire, transfer, suspend, discharge or discipline “other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action.” To be considered a supervisor, the individual must possess at least one of the types of authority listed, and her exercise of such authority must require the use of independent judgment.
On review, the District of Columbia Circuit Court disagreed with each of the four bases for the NLRB’s decision that Jochim was a supervisor. First, the Court found that Jochim’s authority to issue written reports about other employees’ misconduct did not give her supervisory authority. The Court cited NLRB precedent establishing that written reprimands do not, in and of themselves, serve as evidence of supervisory authority. The Court found no evidence that Jochim’s write-ups were a prerequisite to employee discipline or inevitably resulted in the initiation of discipline.
Second, the Court disagreed with the NLRB’s finding that Jochim’s authority to send employees home for gross misconduct established supervisory authority. On both occasions where Jochim sent an employee home, she first consulted with management. The Court found that Jochim neither made the decision nor recommended such action. She simply executed management’s instructions, which amounted to a routine task not involving independent judgment. Third, the Court disagreed that Jochim’s decision to allow two employees to leave early due to family emergencies amounted to supervisory authority. The Court cited NLRB precedent holding that an employee’s limited authority to excuse employees for emergencies, as exercised by Jochim, did not constitute supervisory authority.
Fourth, the Court held that Jochim’s partial completion of a probationary employee’s performance evaluation at the request of management did not render her a supervisor. The Court noted that such action does not indicate supervisory authority unless it effectively recommends discipline or directly affects the employee’s job status.
Finally, the Court rejected the idea that “secondary indicia” such as Jochim’s title as “weekend supervisor” or her status as the highest ranking employee present on the weekends were sufficient to render her a supervisor, particularly in light of the lack of primary evidence of supervisory authority.