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Nurse was not "supervisor" under NLRA
March 25, 2007 by Ross Runkel at LawMemo
The battle continues over the line between "supervisor" and "employee," and the DC Circuit just reversed the NLRB's decision that a registered nurse was a supervisor. The opinion was written by Senior Judge Harry Edwards - a recognized expert on labor law.
Jochims v. NLRB (DC Cir 03/23/2007), reversing Wilshire at Lakewood, 345 NLRB No. 80 (2005) (2-1).
Lisa Jochims filed an unfair labor practice charge against the employer asserting unlawful discharge for engaging in protected activities. The parties agreed that if Jochims was an "employee" and not a "supervisor" under the National Labor Relations Act (NLRA), the employer committed an unfair labor practice. The National Labor Relations Board's (NLRB) initial decision found that Jochims was an "employee" and the supplemental decision found that Jochims was a "supervisor." The DC Circuit reversed the NLRB's supplemental decision.
The NLRB cited four factors in finding Jochims was a supervisor: (1) she completed written reports of employee misconduct; (2) she sent two employees home for misconduct as directed by management; (3) she let two employees leave work for family emergencies; and (4) she completed part of one evaluation of a probationary employer.
The NLRA 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." Under the three part test, 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.
The court stated that this case did not rest on the "responsibly direct" portion of the definition of "supervisor," and was not about Jochims involvement in a "system" of progressive discipline.
In response to the NLRB's four factors finding Jochims had supervisory authority, the court found: (1) there was insufficient evidence to show supervisory status where no evidence was produced showing that Jochims' 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; (2) Jochims neither made the decision to send the employees home nor recommended any such action; (3) NLRB precedent made clear that supervisory authority did not necessarily lie where authority to let employees leave early was limited to emergency situations; and (4) an evaluation did not indicate supervisory authority unless it effectively recommended discipline or directly affected an employee's job status.
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