Nat'l Labor Relations Bd. v. Aakash, Inc.
| Citation | 58 F.4th 1099 |
| Decision Date | 27 January 2023 |
| Docket Number | 22-70002, No. 22-70008 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, Service Employees International Union Local 2015, Intervenor, v. AAKASH, INC., dba Park Central Care and Rehabilitation Center, Respondent. Aakash, Inc., dba Park Central Care and Rehabilitation Center, Petitioner, v. National Labor Relations Board, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Heather S. Beard (argued), Senior Attorney; Elizabeth A. Heaney and Meredith L. Jason, Supervisory Attorneys; David Habenstreit, Assistant General Counsel; Ruth E. Burdick, Deputy Associate General Counsel; Peter Sung Ohr, Deputy General Counsel; Jennifer A. Abruzzo, General Counsel; National Labor Relations Board; Washington, D.C.; Benjamin M. Shultz (argued) and Scott R. Mcintosh, Attorneys, Appellate Staff; Brian M. Boynton, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Petitioner.
David A. Rosenfeld and Manuel A. Boigues, Weinberg Roger & Rosenfeld, Emeryville, California, for Intervenor.
Dylan B. Carp (argued), Jackson Lewis PC, San Francisco, California; Louis J. Cannon, Jackson Lewis PC, Baltimore, Maryland; for Respondent.
Before: Susan P. Graber, Evan J. Wallach,* and Paul J. Watford, Circuit Judges.
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.
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 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.
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 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.
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 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, 17 S.Ct. 880, 42 L.Ed. 185 (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, 17 S.Ct. 880. The Attorney argued that he was entitled to serve for the entire four-year term to which he had been appointed. Id. at 327, 17 S.Ct. 880. 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, 17 S.Ct. 880 ; see also Shurtleff v. United States, 189 U.S. 311, 316, 23 S.Ct. 535, 47 L.Ed. 828 (1903) ). 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, 47 S.Ct. 21, 71 L.Ed. 160 (1926) ; see also Stanley v. Gonzales, 476 F.3d 653, 660 (9th Cir. 2007) ().
Contrary to Aakash's contentions, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (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 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, 55 S.Ct. 869 (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, 55 S.Ct. 869. 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, 78 S.Ct. 1275. 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, 78 S.Ct. 1275 (citation omitted). For that reason, removal protections were implied. Id. at 355–56, 78 S.Ct. 1275. 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, 78 S.Ct. 1275. 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, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987) ; Exela Enter. Sols., Inc. v. NLRB, 32 F.4th 436, 443–44 (5th Cir. 2022).
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...
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