Wilshire at Lakewood

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1050 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 80
1050
Wilshire at Lakewood and Lisa Jochims. Case 17–
CA–21564
September 30, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 30, 2004, the National Labor Relations
Board issued a Decision and Order1 in this proceeding.
Reversing the Administrative Law Judge’s findings, the
Board found in relevant part that registered nurse (RN)
Lisa Jochims was not a statutory supervisor within the
meaning of Section 2(11) of the Act and, therefore, the
Respondent’s termination of, and other conduct towards,
Jochims for circulating a petition protesting a change in
working conditions violated Section 8(a)(1) of the Act as
alleged.2
Thereafter, on October 14, 2004, the Respondent filed
a petition for review of the Board’s Order with the
United States Court of Appeals for the Eighth Circuit.
Subsequently, the Board informed the parties and the
court that it had decided, sua sponte, to reconsider its
Decision and Order.
After reconsideration, and for the reasons set forth be-
low, we have decided to reverse our prior finding that
Jochims is not a statutory supervisor within the meaning
of Section 2(11) of the Act. We find that she is a super-
visor, and we will therefore dismiss the 8(a)(1) allega-
tions that are dependent upon a finding that Jochims is a
statutory employee. Accordingly, we shall vacate the
Board’s original order in this proceeding and issue a new
order as modified and set forth in full below.3
At the outset, we note that the Board’s original deci-
sion found the record evidence insufficient to establish
that Jochims exercised independent judgment to respon-
sibly direct employees “under any interpretation” of

1 343 NLRB 141 (2004). Chairman Battista dissented to these find-
ings. Member Schaumber did not participate in that decision.
2 Specifically, in addition to finding that Jochims’ termination was
unlawful, the Board found that the Respondent violated Sec. 8(a)(1) by
(a) terminating Jochims for circulating a petition protesting a proposed
change in working conditions; (b) telling Jochims that she was termi-
nated for circulating the petition; (c) disparately prohibiting Jochims
from telephoning nurses at the facility; (d) asking Jochims about the
petition and thereby creating the impression of surveillance; and (e)
disparately enforcing a no-solicitation, no-distribution rule against
Jochims. The Board found that all of these findings turned on whether
Jochims was a supervisor excluded from the Act’s protections.
3 In all other respects, however, we reaffirm the Board’s findings in
the original decision.
In addition to modifying the original order consistent with our find-
ings herein, we shall also include in the new order the appropriate re-
medial language for the findings that the Respondent violated Sec.
8(a)(1) by maintaining certain unlawful handbook rules. See Guards-
mark, LLC, 344 NLRB No. 97 (2005).
NLRB v. Kentucky River Community Care,” 532 U.S.
706 (2001). We recognize that this finding, without fur-
ther explanation, could raise a substantial issue before
the Eighth Circuit as to whether there is a clearly articu-
lated rationale for the finding that Jochims is not a super-
visor. See Multimedia KSDK, Inc. v. NLRB, 303 F.3d
896, 899 (8th Cir. 2002) (“The brevity of the Board’s
one-paragraph decision makes it somewhat difficult to
determine what theory the Board used as the basis of its
order.”). However, after reconsidering the record, we
find it unnecessary to pass on that issue, because we find,
as explained below, that Jochims possessed supervisory
authority apart from the issue of her responsible direction
of employees.4
The pertinent facts relating to Jochims’ supervisory
status, set forth in full in the underlying Decision and
Order, are as follows: RN Lisa Jochims was the Re-
spondent’s “weekend supervisor” and, as such, was the
highest ranking and highest paid person on the Respon-
dent’s weekend staff. Although responsible for patient
care and interaction with patients’ families, Jochims also
attended managerial meetings and was responsible for
assuring proper employee staffing, time, and attendance.
In addition, Jochims’ duties included checking to see
whether employees performed their tasks correctly, and
correcting employees if they did something wrong. In so
doing, if Jochims determined that an employee commit-
ted 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 em-
ployee was warranted.
In addition, on 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
management officials, the decision was made by the ad-
ministrator to send these employees home, and Jochims
instructed the offending employees to leave.
Jochims has also granted employee requests to leave
work early. On two occasions, Jochims was presented

4 The dissent mischaracterizes our decision to not pass on this issue
as one of avoidance, even though it is clear that our resolution of the
Kentucky River issue here would have no effect on our finding that
Jochims is a supervisor, and would only serve to unnecessarily delay
this decision pending the Board’s resolution of the issue left open by
the Supreme Court’s decision.
WILSHIRE AT LAKEWOOD 1051
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.
Jochims also evaluated an employee’s performance.
As a result of this evaluation, the employee was deter-
mined to have successfully completed her 90-day proba-
tionary period.
In view of the above facts, we find, contrary to the
Board’s original decision, that Jochims possessed super-
visory authority within the meaning of Section 2(11) of
the Act. First, with respect to employee discipline,
Jochims’ authority to correct employee infractions in-
cluded the ability to issue, at her discretion, a discipli-
nary writeup of the infraction. These writeups, placed in
the employee’s personnel file, constitute the first step in
the process for possible discipline. While the Board’s
original decision found little significance to these write-
ups insofar as they did not necessarily lead to further
disciplinary action in every instance, the fact remains that
these writeups play a significant role in the disciplinary
process, and they are initiated by Jochims’ independent
determination that the committed infraction is egregious
enough to warrant the writeup. In these circumstances,
the writeups clearly evince Jochims’ supervisory status.5
In addition, the record establishes that Jochims exer-
cised independent judgment in sending employees home.
As noted above, on two occasions Jochims independently
initiated discussions with managerial officials after ob-
serving employee misconduct, and these discussions led
to Jochims sending the employees home. Further, on
two other occasions Jochims independently granted em-
ployee requests to leave early to attend to personal mat-
ters. In each of these incidents, it was Jochims’ exercise
of independent judgment that led to the early departure
of the employee. Thus, we find that the Board’s original
decision erred in finding that these acts do not demon-
strate the existence of supervisory authority.6 Finally,

5 We thus find, contrary to the dissent’s contention, that the Board’s
reliance in its original decision on Asuza Ranch Market, 321 NLRB
811, 812–813 (1996), and Passavant Health Center, 284 NLRB 887,
889 (1987), is unavailing. There was no finding in those cases, as here,
that the disciplinary writeups played any significant role in the discipli-
nary process. In addition, we find, without passing on whether they
were correctly decided, that Ken-Crest Services, 335 NLRB 777
(2001), and Fleming Cos., 330 NLRB 277 (1999), cited in the Board’s
original decision, are distinguishable. In Ken-Crest Services, the Board
found that the verbal warnings at issue there had “no clear connection
of any kind to other disciplinary measures.” 335 NLRB at 778. In
Fleming Cos., the Board found that the issuance of the subject discipli-
nary warnings for attendance violations did not involve the exercise of
any discretion. 330 NLRB 277 at fn. 1.
6 We find that Alois Box Co., 326 NLRB 1177, 1177–1178 (1998),
enfd. 216 F. 3d 69 (D.C. Cir. 2000), cited in support by the majority in
the original decision, is distinguishable, as the person whose supervi-
sory status was at issue did not have authority to make independent
Jochims’ evaluation of an employee’s performance lends
further support to the conclusion that Jochims is a super-
visor.
Jochims also possesses secondary indicia of supervi-
sory authority (i.e., her supervisory title, the fact that she
is the highest ranking and highest paid person at the fa-
cility on the weekends, and her attendance at managerial
meetings). These indicia constitute further evidence of
her supervisory status. Although the Board’s decision
found little significance to these facts because they were
insufficient to confer supervisory status standing on their
own, we find that—considered together with the other
instances of supervisory authority discussed above—they
provide corroborating evidence of Jochims’ supervisory
status.
Our dissenting colleague adheres to the underlying ma-
jority decision which found that Jochims was not a su-
pervisor. In so doing, the dissent contends that (a) the
evidence of Jochims’ issuance of disciplinary writeups,
of sending employees home, and of preparing an em-
ployee’s performance evaluation demonstrates nothing
more than a reportorial function; and (b) the evidence of
Jochims allowing employees to leave early constitutes
nothing more than “isolated and exigent circumstances.”
As explained below, we find no merit to our colleague’s
contentions.
Our colleague accuses us of ignoring the precedent
that a mere reporting of facts, without a recommendation,
does not establish supervisory status. We agree with that
precedent, and we do not ignore it. We simply conclude
that the instant case involves far more authority than the
mere reporting of facts. In the first place, Jochims exer-
cised independent judgment in deciding whether to
writeup an employee at all for a particular infraction. If
Jochims chose not to, there would be no discipline. Sec-
ondly, if she chose to do so, her submission of the report
triggered a disciplinary process.
The cases on which the dissent relies are unavailing.
Ohio Masonic Home, 295 NLRB 390 (1989), is clearly

decisions affecting other employees, but rather only served as a “con-
duit for management instructions.” Here, as shown above, it is
Jochims’ exercise of independent judgment that caused two employees
to be sent home for disciplinary reasons, and she independently granted
two other employees permission to go home early.
We similarly find unavailing the dissent’s reliance on NLRB v. St.
Clair Die Casting, LLC, 423 F.3d 843 (8th Cir. 2005). In that case, the
employer argued that four “setup specialists” were supervisors—in
part—because of their authority to issue “secondary disciplinary warn-
ing forms” to report employee rule violations. The employer’s argu-
ment was found to have no merit because the record showed that (a)
these warning forms were not part of the employer’s formal discipli-
nary system, (b) not all of the setup specialists were even aware of the
existence of such a form, and (c) only one of the setup specialists had
actually ever filled out or signed such a form.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1052
distinguishable. In that case, the disciplinary warnings
were not issued by the subject nurses until after the
nurses contacted their supervisor about the particular
infraction. Here, the record shows that Jochims did not
contact her superior prior to issuing the writeups; the
decisions to issue the writeups were completely hers.
Similarly, Vencor Hospital—Los Angeles, 328 NLRB
1136, 1139 (1999), is distinguishable inasmuch as the
Board found no evidence that the issuance of written
warnings involved the exercise of any independent judg-
ment.
In addition, the dissent erroneously contends that our
decision today is somehow at odds with our recent deci-
sion in Mountaineer Park, Inc., 343 NLRB 1473 (2004),
where we found that the issuance of disciplinary writeups
evinced supervisory status. According to the dissent,
because we found that the writeups in Mountaineer Park
included an effective recommendation of discipline, our
finding here is inconsistent with that decision. The sim-
ple answer is that the writeup in Mountaineer Park in-
volved an effective recommendation of discipline, and
Jochims’ writeups were more than a recommendation;
the decision to issue a writeup actually initiated the dis-
ciplinary process. Contrary to our colleague’s conten-
tion, the exercise of independent judgment in initiating
an employer’s disciplinary process constitutes a substan-
tial role in the decision to discipline, and is indeed in-
dicative of supervisory authority. See Progressive
Transportation Services, 340 NLRB 1044, 1046 (2003)
(individual, found to be supervisor, “use[d] independent
judgment in deciding whether to initiate disciplinary
process”);7 Mountaineer Park, Inc., supra at 1475 (indi-
viduals found to be supervisors had the authority “to de-
cide whether to trigger the disciplinary process”).
Our colleague apparently believes that the powers
listed in Section 2(11) are supervisory only if they are
exercised in an affirmative way. That is, a decision to
discipline is supervisory, but a decision not to do so is
not. We do not read Section 2(11) in that limited way.
For example, a decision to deny a wage increase or to
deny a grievance clearly affects the terms and conditions
of employees. Reasonably read, 2(11) deals with the
authority to decide whether to take the actions listed
therein. As shown, Jochims had the power to decide not
to initiate the disciplinary process.
Our colleague also asserts that, under our decision to-
day, “we soon [will] have no employees, only supervi-

7 Our colleague says that the Board, in Progressive, relied “exclu-
sively” on the authority to effectively recommend discipline and the
absence of an independent investigation by the superior. However, the
fact is that the Board explicitly relied, in part, on the use of “independ-
ent judgment in deciding whether to initiate the discipline process.”
sors” because any employee would become a supervisor
whenever the employee decided to report a coworker’s
infraction. This assertion, is at odds with the circum-
stances presented here, i.e., Jochims was specifically
vested with the authority to exercise independent judg-
ment in deciding whether to initiate the Respondent’s
formal disciplinary process. This is completely distin-
guishable from a situation involving an employee—
vested with no such authority—who decides on his or her
own to report misconduct.8
Similarly, with respect to the evidence of Jochims
sending two employees home for misconduct, the dissent
erroneously focuses only on whether there was a recom-
mendation for discipline, and not on the fact that Jochims
exercised independent judgment in initiating the process
that led to the employees being sent home.
As to Jochims’ granting permission for employees to
leave work early, the dissent characterizes these incidents
as exigent circumstances that did not require Jochims’
approval. However, the evidence shows otherwise, as
the employees sought Jochims’ permission to leave early,
Jochims exercised independent judgment in granting the
employees’ request, and the employees left work only
after permission was granted by Jochims.
Finally, with respect to Jochims’ preparation of an
evaluation, the dissent claims that this single incident is
not sufficient to confer supervisory status. Were this the
only evidence of Jochims’ supervisory status, we might
agree. However, when considered together with the
other evidence of supervisory status discussed above, the
evaluation constitutes further support for the supervisory
finding.
In sum, Jochims’ exercise of independent judgment in
issuing disciplinary writeups, in sending employees
home early and in preparing an employee evaluation,
together with her possession of secondary indicia, estab-
lish that Jochims was a statutory supervisor. Conse-
quently, her conduct was not protected by the Act.
Therefore, the Respondent’s conduct, taken in response
to her circulation of a petition, including her termination,
did not violate Section 8(a)(1) of the Act as alleged. Ac-
cordingly, we shall vacate the Board’s original order and
dismiss the complaint allegations relating to the Respon-
dent’s termination of Jochims and the other conduct en-
gaged in as a result of Jochims’ unprotected activity.

8 Contrary to our colleague’s assertion, we do not say that the au-
thority to decide whether to report an infraction makes a person a su-
pervisor. Rather, we say that a person who is responsible for deciding
whether to report an infraction, which report will initiate a disciplinary
process, has supervisory authority.
WILSHIRE AT LAKEWOOD 1053
ORDER
The National Labor Relations Board orders that the
Respondent, Wilshire at Lakewood, Lee’s Summit, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their own or
others’ protected concerted activities.
(b) Creating an impression among its employees that
their protected concerted activities are under surveil-
lance.
(c) Maintaining in its employee handbook a discipli-
nary rule prohibiting the misrepresentation of a material
fact in an attempt to obtain a benefit or advantage.
(d) Maintaining in its employee handbook a discipli-
nary rule prohibiting making a false or malicious state-
ment about a resident, employee, supervisor, or the
Company.
(e) Maintaining in its employee handbook a discipli-
nary rule prohibiting paycheck disclosure.
(f) Maintaining in its employee handbook a discipli-
nary rule that prohibits soliciting or distributing material
during working time or in any work area or resident care
area.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the disciplinary rules quoted above.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the
unlawful rules have been rescinded, or (2) provide the
language of lawful rules; or publish and distribute re-
vised handbooks that (1) do not contain the unlawful
rules, or (2) provide the language of the lawful rules.
(c) Within 14 days after service by the Region, post at
its Lee’s Summit, Missouri facility copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 22, 2002.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the Board’s Order re-
ported at 343 NLRB 141 is vacated.
IT IS FURTHER ORDERED that in all other respects the
complaint is dismissed.
MEMBER LIEBMAN, dissenting.
“Filling out forms related to performance issues, with-
out more, does not qualify employees for supervisory
status.”1 The majority, in reconsidering the Board’s ear-
lier finding that Lisa Jochims is not a statutory supervi-
sor, reverses our prior decision on facts that essentially
show no more than that Jochims reports information to
management officials, who themselves determine what
further steps to take with respect to discipline and per-
formance issues. Such bare reporting of information has
never provided the basis for finding supervisory status—
until now. The language of Section 2(11) of the Act de-
fining supervisory status requires that the person be
shown to have authority to act in discrete areas of re-
sponsibility, or to make “effective recommendations” on
these matters. The reports provided by Jochims, now
relied on by the majority, clearly contain no recommen-
dations whatsoever and they do not themselves represent
adverse action. Nor do they lead with any predictability
to discipline. Significantly, the majority never concludes
that Jochims effectively recommends discipline. Ac-
cordingly, the majority has no basis to reverse the
Board’s prior decision.
I.
The majority accurately depicts the nature of Jochims’
reporting responsibility. She is responsible for checking
on employees’ performance when she works as the sole
RN on weekends at the Respondent’s nursing facility,
and can correct employees if they do something wrong.
If she determines that an employee has committed a
gross infraction of residential care, she may choose to
document the matter on a form.2 The forms in evidence

1 Hospital General Menonita v. NLRB, 393 F.3d 263, 267 (1st Cir.
2004), enfd. 340 NLRB 1050 (2003).
2 The majority characterizes the form as a “disciplinary form.” Only
one form submitted by Jochims was labeled an employee disciplinary
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1054
contain no recommendations as to discipline. These
writeups initiate further review by managerial officials,
as well as a determination of whether any disciplinary
action is warranted. The record does not clarify the na-
ture of this review, although there is no evidence that
Jochims is involved after the reporting document is for-
warded. Several of the forms submitted by Jochims
make no reference to there being any subsequent correc-
tive or disciplinary action, and the relevant testimony
fails to clarify what followed from this review by man-
agement.
The second type of reporting that Jochims provided to
higher management was her oral report of her observa-
tions of an employee’s fitness for work. In one instance
she reported that an employee came to work intoxicated,
and in another instance she reported that an employee
was taking extended breaks and was failing to respond to
patient call lights. There is no evidence that in forward-
ing this information to management officials, she ever
made recommendations as to discipline, nor is there evi-
dence to show that it was Jochims who made the deter-
mination as to what further steps to take.3 The record
shows no more than that Jochims was later the conduit
for relaying decisions made by higher management.
The majority errs by placing determinative importance
on its view that these reports “play a significant role in
the disciplinary process.” Such an ambiguous charac-
terization fails to even begin to comport with the statu-
tory requirement that there be evidence of at least an “ef-
fective recommendation.”
To the contrary, the reporting function in this case is
essentially identical to that described in Ohio Masonic
Home, 295 NLRB 390 (1989), where the Board found no
supervisory status under the following facts:
The record shows that nurses do play a role in the Em-
ployer’s disciplinary system by issuing oral reprimands
and written warnings. These warnings consist of fac-
tual accounts of alleged incidents of misconduct, but in
no way do they include any recommendation for disci-
plinary action. Although these documents are placed in
an employee’s personnel file, the record does not estab-
lish that these warnings automatically lead to any fur-
ther discipline or adverse action against an employee.
Rather, the director of nursing independently decides

form. All of the other eight forms in evidence are entitled either “em-
ployee incident/accident report” or “employee counseling form.”
3 The absence of any indication that Jochims was involved in the de-
termination of discipline represents a failure of proof regarding an issue
for which the Respondent bore the burden of proof, as it was the party
asserting Jochims’ supervisory status. See Dean & Deluca New York,
Inc., 338 NLRB 1046, 1047 (2003).
when further disciplinary action should be taken. [295
NLRB at 393.]4
Under this controlling authority,5 the mere fact that Jochims
submitted descriptive reports of misconduct is of no particu-
lar significance, nor is her purported exercise of discretion
in deciding to do so, where no recommendation was ever
made as to disciplinary consequences. Thus, the Board’s
original application of Asuza Ranch Market, 321 NLRB 811
(1996), and Passavant Health Center, 284 NLRB 887
(1987), remains appropriate.6
The majority’s position is also in tension with Moun-
taineer Park, Inc., 343 NLRB 1473 (2004), where the
same majority grounded its finding of supervisory status
on there being disciplinary recommendations from the
alleged supervisor who had filed the reports of employee
misconduct, which they concluded were “effective rec-
ommendations” under Section 2(11). The majority in
Mountaineer Park inferred that the disciplinary recom-
mendations made by the alleged supervisor were “effec-
tive recommendations” based on the absence of affirma-
tive evidence of an independent investigation7 by the
management official who reviewed the report filed by the
alleged supervisor. In the present case, there are simply
no facts from which to infer that a recommendation was
effective, for the simple reason that there was no recom-
mendation at all. If the majority’s rationale in the pre-
sent case is controlling, the protracted discussion in
Mountaineer Park as to “effective recommendations”
clearly was unnecessary because the write-ups, in any

4 The majority attempts to distinguish Ohio Masonic Home on its
facts, by observing that the nurses there did not prepare written ac-
counts of alleged incidents of misconduct until after some contact with
their supervisors. But that fact is irrelevant to the clear holding of the
decision: that merely reporting such incidents does not constitute effec-
tive recommendation of discipline.
5 See also Vencor Hospital—Los Angeles, 328 NLRB 1136, 1139
(1999) (emphasizing lack of any recommendation in reports of miscon-
duct submitted to higher management and lack of evidence that reports
automatically led to discipline). Contrary to the majority’s attempt to
re-rationalize the decision, Vencor’s statement of the law fully supports
my position here.
6 The Board’s earlier, related reliance on Ken-Crest Services, 335
NLRB 777 (2001)(program managers’ “limited role in the disciplinary
process is nothing more than reportorial”), and Fleming Cos., 330
NLRB 277 (1999) (no supervisory status where employee communi-
cated discipline of employee Stanley Jones only pursuant to manage-
ment’s directive; employee’s role as a “mere conduit” for management
was insufficient evidence of independent judgment), likewise remain
appropriate authority for the conclusion that Jochims is not a supervi-
sor. Accord: NLRB v. St. Clair Die Casting, LLC, 423 F.3d 843 (8th
Cir. 2005).
7 The significance of the absence of evidence of an independent in-
vestigation formed the basis for Member Walsh’s dissenting opinion in
Mountaineer Park.
WILSHIRE AT LAKEWOOD 1055
event, would have also “played a significant role in the
disciplinary process.”8
The majority has not attempted to reconcile these deci-
sions other than to assert that “Jochims’ writeups were
more than a recommendation; the decision to issue a
writeup actually initiated the disciplinary process.” As
explained, of course, the writeups were not direct evi-
dence of discipline themselves, and the Respondent has
failed to show how the writeup forms in evidence would
lead to discipline after being submitted. If the majority’s
view that it need only be shown that the writeup “initi-
ated the disciplinary process” were the law, then the
statutory requirement for there to be at least “effective
recommendation” would be eliminated. And, if exercis-
ing independent judgment in taking action that “initiates”
the process that leads to discipline were enough to create
supervisory status, there would be no end to the type of
employee actions that might be deemed supervisory. For
example, any time employees had the discretion to report
co-workers’ infractions to management and did so, lead-
ing to discipline, the reporting employee arguably would
have become a supervisor. Under such an approach, we
soon would have no employees, only supervisors. Tell-
ingly, the majority fails to cite any precedent for its
novel, ambiguous, and evidently expansive, criterion for
determining supervisory status.9

8 Similarly, the majority’s reliance on the Board’s divided decision
in Progressive Transportation Services, 340 NLRB 1044 (2003), is
misplaced. Contrary to the majority, the Board there did not merely
focus on the alleged supervisor’s role in “initiating” the disciplinary
process. Rather, the finding of supervisory status was premised on the
express conclusion that the supervisor effectively recommended disci-
pline. The Board explained that “the record shows that when [the su-
pervisor] makes a disciplinary recommendation to [her superior], disci-
pline ensues” and that the superior did not conduct independent investi-
gations. Id at 1045. Those two facts were specifically, and exclusively,
relied upon in rejecting the dissent’s view that the supervisor’s author-
ity was “merely reportorial.” Id. at 1046.
9 The majority faults me for focusing on whether there was a rec-
ommendation for discipline rather than on whether Jochims exercised
independent judgment. If the action taken, however, is not one of the
actions listed in Sec. 2(11) of the Act—here an effective recommenda-
tion to discipline other employees—it makes no difference whatsoever
whether the action involved an exercise of independent judgment: the
action is simply not an indicium of supervisory status. The majority
confuses matters by asserting that the dispute between us is over
whether authority must be “exercised in an affirmative way” in order
for it to be supervisory authority under Sec. 2(11). My view is that the
authority merely to exercise independent judgment in deciding whether
to report, or not report, other employees’ rules infractions, without
more, is not 2(11) authority.
The majority asserts that I ignore that Jochims “was specifically
vested with the authority to exercise independent judgment in deciding
whether to initiate the Respondent’s formal disciplinary process.”
Whatever “specific vesting” the majority may be referring to, it appears
that they are suggesting that the authority to exercise independent
judgment in deciding whether or not to report other employees’ rules
II.
The evidence also shows that Jochims filled out part of
a probationary employee’s evaluation—a task which she
did not normally do, but which she fulfilled in one in-
stance on request. Although she reported on her observa-
tions of the specific employee, and entered a numerical
score at the appropriate locations on the form, as re-
quested, she did not make any specific recommendation.
This evidence fails to indicate supervisory status, not
only on the basis that there was no showing that Jochims
provided any recommendation associated with the
evaluation, but also on the basis that the record shows
that filling out employee evaluations was not part of her
established responsibilities. That fact that she was re-
quested on a single occasion to perform this task outside
the scope of her normal responsibilities is inadequate to
support a supervisory finding.
III.
The final basis relied on by the majority for finding
Jochims to be a supervisor is evidence that she permitted
employees to go home early on two occasions. The ma-
jority appropriately describes each instance as involving
a “family emergency,” but it erroneously characterizes
Jochims’ acceptance of the early departure of these em-
ployees in those circumstances as the exercise of super-
visory responsibility.
As stated in the original decision, the first instance in-
volved an employee who had informed Jochims that the
employee’s child had fallen on his head and probably
needed to go to the emergency room. The other instance
involved an employee who informed Jochims that she
had to leave because her child was having an asthma
attack. The Board in its original decision appropriately
described these as isolated and exigent circumstances
involving compelling medical emergencies. The Board
appropriately found that the employees’ early departure,
obviously compelled, was not dependent upon Jochims’
approval. The Board did not err in finding this not to be
evidence of supervisory responsibility.
IV.
In the absence of any evidence of supervisory respon-
sibility under the primary indicia listed in Section 2(11),
the Board in the original decision also correctly found
that the secondary indicia of supervisory status, such as
Jochims’ title or her attendance at management meetings,
was not determinative of her status.

infractions by itself is sufficient to constitute supervisory authority. If
this were the case an employer could instantly covert all of its employ-
ees into supervisors by issuing a memo stating that all employees are
expected to exercise independent judgment in reporting their fellow
employees’ rules infractions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1056
V.
The majority’s opinion avoids deciding whether
Jochims exercised independent judgment to responsibly
direct employees and thus need not resolve the issue left
open by NLRB v. Kentucky River Community Care, 532
U.S. 706 (2001). To avoid this issue, however, the ma-
jority departs from Board precedent governing the super-
visory criteria that it does rely on. That step is unwise—
as is the majority’s sua sponte reversal of the Board’s
original decision in this case. Accordingly, I dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you concerning your own or
others’ protected concerted activities.
WE WILL NOT create the impression that your protected
concerted activities are under surveillance.
WE WILL NOT maintain in our employee handbook a
disciplinary rule that prohibits the misrepresentation of a
material fact in an attempt to obtain a benefit or advan-
tage.
WE WILL NOT maintain in our employee handbook a
disciplinary rule prohibiting making a false or malicious
statement about a resident, employee, supervisor, or the
Company.
WE WILL NOT maintain in our employee handbook a
disciplinary rule that prohibits paycheck disclosure.
WE WILL NOT maintain in our employee handbook a
disciplinary rule that prohibits soliciting or distributing
material during working time or in any work area or resi-
dent care area.
WE WILL NOT in any like or related manner interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the disciplinary rules quoted above.
WE WILL supply all of you with inserts for the current
employee handbook that (1) advise you that the unlawful
rules have been rescinded or (2) provide the language of
lawful rules; or WE WILL publish and distribute revised
handbooks that (1) do not contain the unlawful rules or
(2) provide the language of lawful rules.
WILSHIRE AT LAKEWOOD