NLRB v. Aakash, Inc. ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 22-70002
BOARD,
Petitioner, NLRB No. 32-
CA-282957
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL
2015, OPINION
Intervenor,
v.
AAKASH, INC., DBA Park Central
Care and Rehabilitation Center,
Respondent.
AAKASH, INC., DBA Park Central No. 22-70008
Care and Rehabilitation Center,
Petitioner, NLRB No. 32-
CA-282957
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
2 NLRB V. AAKASH, INC.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted December 7, 2022
San Francisco, California
Filed January 27, 2023
Before: Susan P. Graber, Evan J. Wallach, * and Paul J.
Watford, Circuit Judges.
Opinion by Judge Graber
SUMMARY **
National Labor Relations Board
The panel granted a petition for enforcement brought by
the National Labor Relations Board (“the Board”), and
denied a cross-petition for review of an order of the Board,
issued against Aakash, Inc., which held that Aakash violated
Sections 8(a)(5) and (1) of the National Labor Relations Act,
by refusing to recognize and bargain with Service
Employees International Union, Local 215.
Aakash argued that the Board’s General Counsel,
Jennifer Abruzzo, lacked authority to prosecute the unfair
*
The Honorable Evan J. Wallach, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NLRB V. AAKASH, INC. 3
labor practice charge because the President could not remove
the Board’s previous General Counsel, Peter Robb, without
cause during the four-year term to which he had been
appointed, making his successor’s acts ultra vires and
void. The panel rejected Aakash’s contentions. The panel
held that the President may remove the Board’s General
Counsel at any time and for any reason. The panel held that
several canons of construction supported their
conclusion. Even if history mattered here, past
administrations have maintained that the General Counsel
was removable at will. Finally, neither of the established
two exceptions to the President’s plenary removal power
applied here. First, Congress can impose removal
restrictions on a group of principal officers serving as part of
a multimember body of experts who do not wield substantial
executive power, but that exception does not apply because
the General Counsel is a single officer with independent
functions. Second, Congress can remove restrictions on
inferior officers with limited duties and no policymaking or
administrative authority, but the exception does not apply
because the General Counsel exercised significant
administrative authority, and was not an inferior
officer. The panel noted that their decision was in accord
with the only other circuit precedent on this issue in Exela
Enter. Sols., Inc. v. NLRB, 32 F.4th 436, 443-44 (5th Cir.
2022).
Aakash contended that the certified bargaining unit was
inappropriate because the Registered Nurses (RNs) that it
included were statutory supervisors. The panel disagreed
with Aakash’s claims that the RNs were supervisors because
they held authority to assign, discipline, and responsibly
direct employees, and they exercised that authority using
independent judgment. First, Aakash failed to present
4 NLRB V. AAKASH, INC.
sufficient evidence to prove that the RNs assigned work
using independent judgment within the meaning of 29
U.S.C. § 152(11). The record suggested that they simply
paired nursing students to groups of patients using a
schedule created by the Director of Staff Development. Nor
did the RNs discipline employees. The power to issue verbal
reprimands or report to higher-ups did not suffice. Finally,
Aakash did not prove that the RNs responsibly directed other
employees using independent judgment.
The panel therefore concluded that General Counsel
Robb was lawfully removed, and the RNs were not statutory
supervisors under the National Labor Relations Act.
COUNSEL
Gail Ivens (argued), Gail Ivens Attorney at Law, Monterey,
California, for Defendant-Appellant.
Bram M. Alden (argued), Assistant United States Attorney,
Criminal Appeals Section Chief; Tracy L. Wilkison, United
States Attorney; Joseph D. Axelrad; Jeffrey M.
Chemerinsky, Department of Justice Office of the United
States Attorney, Los Angeles, California; Charles E. Fowler
Jr., Department of Justice United States Attorney’s Office,
Austin, Texas; Plaintiff-Appellee.
NLRB V. AAKASH, INC. 5
OPINION
GRABER, Circuit Judge:
The National Labor Relations Board (the Board)
petitions for enforcement of a final order issued against
Aakash, Inc. d/b/a Park Central Care and Rehabilitation
Center (Aakash). The Board ruled that Aakash had violated
Sections 8(a)(5) and (1) of the National Labor Relations Act
(the Act), 29 U.S.C. § 158(a)(5) and (1), by refusing to
recognize and bargain with Service Employees International
Union, Local 2015 (the Union). 1 Aakash cross-petitions,
admitting that it refused to bargain but asserting that we
should nonetheless vacate the Board’s order for two reasons.
First, Aakash argues that the Board’s General Counsel,
Jennifer Abruzzo, lacked authority to prosecute the unfair
labor practice charge because the President could not remove
the Board’s previous General Counsel, Peter Robb, without
cause during the four-year term to which he had been
appointed, making his successor’s acts ultra vires and void.
Second, Aakash contends that the certified bargaining unit is
inappropriate because the Registered Nurses (RNs) that it
includes are statutory supervisors. We reject both of
Aakash’s arguments and grant the Board’s petition for
enforcement of its order.
FACTUAL BACKGROUND
Aakash operates a skilled nursing facility in California,
providing round-the-clock care for both short-term
rehabilitation patients and long-term residents. The facility
has 99 beds. The senior management team includes the
1
The Union has intervened on behalf of the Board.
6 NLRB V. AAKASH, INC.
Administrator and a Director of Staff Development. The
Nursing Department’s management includes a Director of
Nursing, an Assistant Director of Nursing, and a supervisor
of Licensed Vocational Nurses (LVNs). About 90 nurses
work at the facility, including six RNs, 13 LVNs, and 60
nursing assistants.
The Director of Nursing and Assistant Director of
Nursing work standard daytime shifts, Monday through
Friday. The RNs and other nursing staff work in three shifts:
day, night, and overnight. The Director of Nursing sets the
work schedules for the RNs and LVNs, and the Director of
Staff Development sets the work schedule for the nursing
aides. At the start of each shift, an RN or an LVN fills out
an assignment sheet, pairing each scheduled nursing aide
with a group of patients.
Disciplinary action at the facility is rare. On one
occasion, an RN verbally warned a nursing assistant that
falling asleep on the job constituted misconduct. The RN
then wrote a note to the Director of Staff Development
explaining the misconduct that she had witnessed.
PROCEDURAL HISTORY
The dispute in this case arose when, in 2020, the union
representing Aakash’s nursing aides sought to add two
voting groups to its bargaining unit, one for the RNs and one
for the LVNs. Aakash challenged the RNs’ eligibility for
inclusion in the bargaining unit, asserting that the RNs are
statutory supervisors and thus ineligible for inclusion. The
Board’s Regional Director determined that Aakash did not
meet its burden of proving that the RNs are statutory
supervisors. The Regional Director then ordered a “self-
determination” election, which the Union won. The Board
NLRB V. AAKASH, INC. 7
denied Aakash’s request for review of the Regional
Director’s decision.
In March 2021, the Union requested that Aakash
recognize the new bargaining unit and agree to bargain with
it. When Aakash refused, the Union filed an unfair labor
practice charge. In October 2021, the Board’s General
Counsel issued a complaint against Aakash for its failure to
comply with § 8(a)(5) and (1) of the Act.
In January 2021, while the dispute between Aakash and
the Board was ongoing, President Biden took office and
immediately removed the Board’s then General Counsel,
Peter Robb. General Counsel Robb had originally assumed
office for a four-year term in November 2017. In February
2021, President Biden nominated Jennifer Abruzzo to
replace Robb. The Senate confirmed General Counsel
Abruzzo, and she assumed the role in July 2021.
In December 2021, the Board issued its decision, finding
that Aakash had refused to recognize and bargain with the
Union in violation of the Act. The Board also rejected
Aakash’s contention that General Counsel Abruzzo lacked
the authority to prosecute unfair labor practices because the
President had removed former General Counsel Robb
unlawfully.
DISCUSSION
A. The President May Remove the Board’s General
Counsel at Will.
Title 29 U.S.C. § 153(d) provides that the Board’s
General Counsel “shall be appointed by the President, by and
with the advice and consent of the Senate, for a term of four
years.” The statute contains no provision precluding
8 NLRB V. AAKASH, INC.
removal of the General Counsel or requiring cause for
removal.
Aakash argues that the existence of a term of office
implicitly carries with it a prohibition on removal without
cause during that term. The Supreme Court rejected that
argument 125 years ago in Parsons v. United States, 167 U.S.
324 (1897). There, the President appointed a United States
Attorney for the Northern District of Alabama to a four-year
term but removed him before that term ended. Id. at 327–
28. The Attorney argued that he was entitled to serve for the
entire four-year term to which he had been appointed. Id. at
327. The Court held that the President acted appropriately
in removing the Attorney before the end of his four-year
term because a statutory provision establishing a fixed four-
year term, without any additional limitation, does not affect
the President’s discretionary power of removal. Id. at 338–
39, 342–44; see also Shurtleff v. United States, 189 U.S. 311,
316 (1903) (The right of removal “does not exist by virtue
of the [statutory text], but it inheres in the right to appoint,
unless limited by constitution or statute. It requires plain
language to take it away.”). The Supreme Court has cited
Parsons for the proposition that fixed terms do not confer
removal protection. Myers v. United States, 272 U.S. 52,
142–43 (1926); see also Stanley v. Gonzales, 476 F.3d 653,
660 (9th Cir. 2007) (so holding with respect to “inferior
officers” such as a United States Trustee).
Contrary to Aakash’s contentions, Humphrey’s Executor
v. United States, 295 U.S. 602 (1935), and Wiener v. United
States, 357 U.S. 349 (1958), do not support its argument. In
Humphrey’s Executor, the Court held:
[T]he fixing of a definite term subject to
removal for cause, unless there be some
NLRB V. AAKASH, INC. 9
countervailing provision or circumstance
indicating the contrary, which here we are
unable to find, is enough to establish the
legislative intent that the term is not to be
curtailed in the absence of such cause.
295 U.S. at 623 (emphasis added). But the wording of the
fixed term of office in Humphrey’s Executor included an
express provision regarding for-cause removal. Id. at 620.
Here, the wording of the fixed term of office for the Board’s
General Counsel includes no removal restrictions. Thus,
Humphrey’s Executor is inapposite.
Aakash’s reliance on Wiener also is misplaced. There,
the Court inferred removal protections for members of the
War Claims Commission (the Commission), an adjudicative
body responsible for determining claims for compensation
arising out of injuries suffered in World War II. Wiener, 357
U.S. at 349–50. The Court held that Congress had created
the Commission to adjudicate claims “free from the control
or coercive influence” of the President or of the Congress
itself. Id. at 355 (citation omitted). For that reason, removal
protections were implied. Id. at 355–56. Wiener is
distinguishable because the General Counsel is not a
member of an adjudicative body. In Wiener, the Court
inferred removal restrictions because of the nature of the
Commission’s task: its responsibilities had an “intrinsic
judicial character.” Id. at 355. By contrast, Congress
explicitly granted all judicial or quasi-judicial functions to
the Board and gave the General Counsel investigative,
prosecutorial, and managerial responsibilities. 29 U.S.C.
§ 153(d); see NLRB v. United Food & Com. Workers
Union, Loc. 23, 484 U.S. 112, 124 (1987); Exela Enter.
Sols., Inc. v. NLRB, 32 F.4th 436, 443–44 (5th Cir. 2022).
10 NLRB V. AAKASH, INC.
In short, when Congress declared that the General
Counsel “shall be appointed . . . for a term of four years,” it
stipulated only the requirements of the initial appointment.
The President may not appoint a General Counsel for a one-
year probationary period or for ten years, for example, or
without the advice and consent of the Senate.
Contrary to Aakash’s arguments, several canons of
construction support our conclusion that the President may
remove the Board’s General Counsel at any time and for any
reason. Aakash contends that the provision pertaining to
Board Members and the provision pertaining to the General
Counsel, when read together, suggest that the General
Counsel may be removed for causes beyond those that can
justify removal of the Board Members. Section 153(a) states
that Board Members shall be appointed by the President,
with the advice and consent of the Senate, to a five-year
term. 29 U.S.C. § 153(a). Unlike the section pertaining to
the General Counsel, though, Section 153(a) provides that
Board Members “may be removed by the President, upon
notice and hearing, for neglect of duty or malfeasance in
office, but for no other cause.” Id. When Congress uses text
in one section of a statute but omits it from another section
of the same statute, we ordinarily presume that Congress
acted intentionally, and we give effect to the distinction.
Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021). Applying
that principle here, the statutory text shows that Congress
intended to constrain the President to specific reasons to
remove Board Members but placed no limit on the
President’s power of removal with respect to the General
NLRB V. AAKASH, INC. 11
Counsel. 2 Had Congress intended to limit the President’s
power to remove the General Counsel with a broadened
definition of cause, Congress would have added contrasting
wording in Section 153(d) concerning removal, such as the
General Counsel “may be removed by the President for
cause of any kind.” Instead, Section 153(d) is entirely silent
regarding cause for removal. 3
Another canon of construction comes into play as well.
If the mere statement of a term of office carried with it a
requirement for for-cause removal, as Aakash asserts, the
specification of cause in Section 153(a) would be
surplusage. We generally interpret a statute to avoid making
a part of it unnecessary. Corley v. United States, 556 U.S.
303, 314 (2009).
Moreover, Congress is presumed to “legislate[] against
the backdrop of existing law.” Parker Drilling Mgmt. Servs.,
Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (citation and
internal quotation marks omitted). That the President is
presumed to have unfettered discretion to remove an
executive officer is at this point settled law. See Myers, 272
U.S. at 119 (noting that “the grant of executive power to the
2
We need not and do not decide whether the limitation on removal of
Board Members is permissible. See Seila Law LLC v. CFPB, 140 S. Ct.
2183 (2020) (holding that for-cause removal restrictions on the
Consumer Financial Protection Bureau’s Director violated the separation
of powers); Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S.
477 (2010) (holding that dual-layer for-cause removal restrictions for
members of the Public Company Accounting Oversight Board were
unconstitutional).
3
Wiener, 357 U.S. at 350, is distinguishable on this ground, too. The
statute in question there was entirely silent, whereas here, Congress
created contrasting provisions in neighboring sections of the same
statute.
12 NLRB V. AAKASH, INC.
President . . . carr[ies] with it the power of removal”);
Shurtleff, 189 U.S. at 314–15 (recognizing that “the
President can, by virtue of his general power of appointment,
remove an officer”). Congress was aware of the Supreme
Court’s long line of precedent establishing the presumption
in favor of the President’s power of removal when it enacted
Section 153(d) without incorporating any constraint on that
power.
Aakash also relies on history, specifically, the fact that
the President’s removal of former General Counsel Robb is
the first formal removal of a General Counsel of the Board.
We question the relevance of that argument; the statute
either constrains the President’s discretion or it does not.
But even if we assume that history matters here, past
administrations have maintained that the General Counsel is
removable at will. See Memorandum from John Roberts,
Assoc. White House Counsel, to Fred Fielding, White House
Counsel (July 18, 1983), https://www.reaganlibrary.gov/pub
lic/digitallibrary/smof/counsel/roberts/box-033/40-485-690
8381-033-007-2017.pdf (memorandum written by current
Chief Justice John Roberts, then an attorney in the White
House Counsel’s Office, stating that the General Counsel of
the Board is removable at will, and noting that the
Eisenhower Administration took the same position in 1959);
96 Cong. Rec. App’x A7989 (1951) (extension of remarks
by Rep. Paul Shafer with excerpt of Robert N. Denham, And
So I Was Purged, THE SATURDAY EVENING POST, Dec. 30,
1950, which reported that former General Counsel Robert
Denham understood that he was “summarily fired” as
General Counsel of the Board and that “the President had
full authority to remove [him] at any time.”); Harry S.
Truman, The President’s News Conference of February 16,
1950, 1950 Pub. Papers 159, 163 (1950) (President Truman
NLRB V. AAKASH, INC. 13
noting, in response to a question as to whether he had the
power to fire General Counsel Denham, that “[i]f I have the
power to appoint, I have the power to dismiss, except if the
law provides that it can’t be done.”).
Finally, Aakash argues that, even if the statute does not
forbid dismissal without cause, during the General
Counsel’s four-year term, “the President has no
constitutional prerogative to remove” the General Counsel,
because the General Counsel “does not exercise substantial
executive power.” To be sure, the Court has established two
exceptions to the President’s plenary removal power, but
neither applies here.
First, Congress can impose removal restrictions on a
group of principal officers serving as part of a multimember
body of experts who do not wield substantial executive
power. Seila Law, 140 S. Ct. at 2199–2200. That exception
does not apply because the General Counsel is a single
officer with independent executive functions.
Second, Congress can impose removal restrictions on
inferior officers “with limited duties and no policymaking or
administrative authority.” Id. at 2200. That exception does
not apply either, because the General Counsel exercises
“significant administrative authority,” cf. Morrison v. Olson,
487 U.S. 654, 691 (1988), and is not an inferior officer. The
General Counsel supervises the officers and employees in
the regional offices, as well as all attorneys except for
administrative law judges and Board Members’ legal
assistants. 29 U.S.C. § 153(d). The General Counsel also
has final authority, on behalf of the Board, to investigate, to
issue complaints, and to prosecute unfair labor practice
charges. Id.; see Exela, 32 F.4th at 444 (stating that the
position of the General Counsel is “core to the executive
14 NLRB V. AAKASH, INC.
function”); see also id. at 445 (noting that removal
restrictions for the General Counsel could impede the
President’s performance of his Article II duties).
Accordingly, the President’s removal power remains plenary
in this case.
Our decision today accords with the only other circuit
precedent on this issue. We come to the same conclusion as,
and agree with, the Fifth Circuit’s opinion in Exela. There,
the Fifth Circuit held that the Act does not insulate the
General Counsel from removal because it is silent as to
tenure protections for the General Counsel. 32 F.4th at 441–
42, 445. We see no reason to part ways with our sister
circuit’s persuasive discussion.
B. The Board Permissibly Found that Aakash Failed to
Show that the RNs Are Supervisors.
As the party asserting that the RNs have supervisory
status, Aakash bears the burden of proving that status.
NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711–12
(2001). We “defer to the Board’s reasonably defensible
interpretation and application of the [Act].” Providence
Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 551 (9th Cir.
1997). The deference that we give the Board is particularly
strong here, “[b]ecause the Board has expertise in making
the subtle and complex distinctions between supervisors and
employees . . . .” Id. (citation and internal quotation marks
omitted).
The Act protects the right of employees to self-organize
and to bargain collectively, 29 U.S.C. § 157, but excludes
supervisors from its protection, 29 U.S.C. § 152(3). The Act
defines a supervisor as:
NLRB V. AAKASH, INC. 15
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, if in connection with
the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but
requires the use of independent judgment.
29 U.S.C. § 152(11). Employees are statutory supervisors if
“(1) they hold the authority to engage in any 1 of the 12
. . . supervisory functions [listed in § 152(11)], (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.”
Ky. River, 532 U.S. at 713 (citation and internal quotation
marks omitted).
Neither party disputes that the third factor—authority
held in the interest of the employer—applies here. The
parties dispute the applicability of the first and second
factors: authority to engage in supervisory functions and the
use of independent judgment. Aakash claims that the RNs
are supervisors because they hold authority to (1) assign, (2)
discipline, and (3) responsibly direct employees, and they
exercise that authority using independent judgment. We
disagree.
First, Aakash failed to present sufficient evidence to
prove that the RNs assign work using independent judgment
within the meaning of § 2(11). The record suggests that they
simply pair nursing assistants to groups of patients using a
schedule created by the Director of Staff Development. See
16 NLRB V. AAKASH, INC.
Providence, 121 F.3d at 552 (supporting the Board’s finding
that charge nurses who assign nurses to patients within the
parameters of the supervisory nurse’s monthly assignment
schedule do not assign employees using independent
judgment).
Nor do the RNs discipline employees. “[T]he exercise
of disciplinary authority must lead to personnel action
without independent investigation by upper management.”
Veolia Transp. Servs., Inc. & Amalgamated Transit Union,
Loc. 1637, 363 N.L.R.B. 902, 908 (2016). The power to
issue verbal reprimands or report to higher-ups does not
suffice. Id. Aakash cites evidence in the record of only one
instance in which an RN notified the Director of Staff
Development about an employee’s sleeping on the job. But
the RN specifically requested an investigation and review by
management personnel, by notifying the Director of Staff
Development of the incident. The fact that the RN also
chastised the sleeping employee does not, without more,
demonstrate independent authority to discipline. Thus, the
Board correctly concluded that Aakash had failed to provide
evidence sufficient to meet its burden on that point as well.
Finally, Aakash did not prove that the RNs responsibly
direct other employees using independent judgment. “An
employee responsibly directs others when the employee is
‘answerable’ to the employer for other employees’
‘discharge of a duty or obligation.’” Id. at 554 (quoting
Arizona Pub. Serv. Co. v. NLRB, 453 F.2d 228, 231 (9th
Cir. 1971)). The Board reasonably concluded that the RNs
do not direct the work of the nursing aides and are not held
accountable for the nursing aides’ work whether or not the
Director of Nursing or Assistant Director of Nursing is
present. See Providence, 121 F.3d at 555. Thus, they do not
responsibly direct the nursing aides.
NLRB V. AAKASH, INC. 17
C. Conclusion
In sum, we deny Aakash’s cross-petition for review and
grant the Board’s petition for enforcement. General Counsel
Robb was lawfully removed, and the RNs are not statutory
supervisors under the National Labor Relations Act.
PETITION FOR ENFORCEMENT GRANTED;
CROSS-PETITION DENIED.