NLRB V. AAKASH, INC., No. 22-70002 (9th Cir. 2023)
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The National Labor Relations Board (the Board) petitioned 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. Section 158(a)(5) and (1), by refusing to recognize and bargain with Service Employees International Union, Local 2015 (the Union). Aakash cross-petitioned, admitting that it refused to bargain but asserted that the court should nonetheless vacate the Board’s order.
The Ninth Circuit granted the Board’s petition for enforcement. 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. The panel disagreed with Aakash’s claims that the RNs were supervisors because they held the authority to assign, discipline, and responsibly direct employees, and they exercised that authority using independent judgment. First, Aakash failed to present sufficient evidence to prove that the RNs assigned work using independent judgment within the meaning of 29 U.S.C. Section 152(11). 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 the RNs were not statutory supervisors under the National Labor Relations Act.
Court Description: 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. 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.
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