National Labor Relations Board v. New Vista Nursing & Rehabilitation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3440

_____________

NATIONAL LABOR RELATIONS BOARD,

Petitioner

1199 SEIU UNITED HEALTHCARE WORKERS EAST,

N.J. REGION,

Intervenor

v.

NEW VISTA NURSING AND REHABILITATION,

Respondent

______________

Nos. 12-1027 & 12-1936

_____________

NEW VISTA NURSING AND REHABILITATION, LLC,

Petitioner

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent

1199 SEIU UNITED HEALTHCARE WORKERS EAST,

N.J. REGION,

Intervenor

_______________________

On Application for Enforcement of an Order of the

National Labor Relations Board &

Cross-Petitions for Review

(NLRB-22-CA-29988)

____________________________________

Submitted Under Third Circuit L.A.R. 34.1(a)

After Remand to the NLRB and Supplemental Briefing

on May 6, 2016

Before: SMITH, Chief Judge, GREENAWAY, JR., and

FISHER, Circuit Judges

(Filed: August 29, 2017)

Beth S. Brinkmann

Melissa N. Patterson

United States Department of Justice

Civil Division

Room 3135

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Julie B. Broido

Linda Dreeben

Milakshmi V. Rajapakse

National Labor Relations Board

2

1015 Half Street SE

Washington, DC 20570

Scott R. McIntosh

United States Department of Justice

Civil Division

Room 7259

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Benjamin M. Shultz

United States Department of Justice

Civil Division

Room 7211

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

William S. Massey

Gladstein Reif & Meginniss

817 Broadway

6th Floor

New York, NY 10003

Counsel for Petitioner

Louis J. Capozzi, Jr.

Capozzi Adler

1200 Camp Hill Bypass

Camp Hill, PA 17011

Morris Tuchman

2nd Floor

3

134 Lexington Avenue

New York, NY 10016

Counsel for Respondent

Victor Williams

Catholic University of America

School of Law

Faculty Suite 480

3600 John McCormack Road, N.E.

Washington, DC 20064

Counsel for Amicus-petitioner

________________

OPINION

________________

SMITH, Chief Judge.

Respondent-Petitioner New Vista Nursing and

Rehabilitation, LLC (“New Vista”), contends that the licensed

practical nurses (“LPNs”) employed at its nursing home could

not unionize because they were “supervisors.” The LPNs are

supervisors, New Vista argues, because they have the

“authority” to “discipline other employees[] . . . or effectively

to recommend such action.” 29 U.S.C. § 152(11). New Vista

explains that the LPNs had such authority because their duties

included filling out forms known as “Employee Warning

Notices” or “Notices of Corrective Action,” which

4

recommended discipline for certified nursing assistants

(“CNAs”).

After New Vista refused to bargain with the LPNs’

union, the National Labor Relations Board (the “Board”) held

that New Vista’s refusal to bargain was unlawful because,

among other things, the nurses did not have the authority to

effectively recommend discipline. To determine whether the

LPNs had such authority, the Board applied a four-part test

squarely at odds with our controlling precedent—specifically

NLRB v. Attleboro Associates, Ltd., 176 F.3d 154 (3d Cir.

1999). Therefore, we will deny the Board’s petition for

enforcement and grant New Vista’s cross-petitions for

review. In doing so, we will remand this case to the Board to

allow it to determine whether the LPNs have the authority to

effectively recommend discipline under Attleboro.

Before we can move to the analysis by which the

Board should determine whether the LPNs are statutory

supervisors, we will first address the sundry procedural

arguments advanced by New Vista. After the Supreme

Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550

(2014), and our post–Noel Canning remand to the Board to

clear up procedural and jurisdictional issues, we conclude that

New Vista’s procedural arguments are meritless.

BACKGROUND

There are three levels of nursing staff at the New Vista

home who are supervised by the Director of Nursing: (1) the

5

“nursing supervisor” during the evening shift or “unit

manager” during the morning shift; (2) LPNs 1; and

(3) “Certified Nurse Aides” also known as “certified nursing

assistants” or “CNAs.” See New Vista Nursing & Rehab.,

LLC, 357 N.L.R.B. 714, 715 (2011); JA0073–75; JA0079;

JA0881. In January 2011, 1199 SEIU United Healthcare

Workers East (the “Union”) filed a petition to represent the

LPNs. 2

The Board approved the bargaining unit and required

that an election be held to determine whether the Union

1

Registered nurses or “RNs” interchangeably occupy the

same position as the LPNs. See, e.g., New Vista Nursing &

Rehab., LLC, Case No. 22-RC-13204, slip op. at 4 (Mar. 9,

2011) (regional director’s decision) (“One nurse (either an

RN or an LPN) is assigned to each unit on the floor . . . .”),

available at

http://apps.nlrb.gov/link/document.aspx/09031d458045c16b,

request for review denied (Apr. 8, 2011), available at

http://apps.nlrb.gov/link/document.aspx/09031d4580471

8e4; JA0074 (“They could be an RN or an LPN.”). We

use record citations for Regional Director J. Michael

Lightner’s order, JA0848–80; New Vista Nursing &

Rehab., LLC, No. 22-RC-13204 (Mar. 9, 2011). A copy

of the order and the denial of the request for review can

be accessed at the above URLs.

2

The CNAs are already represented by the Union. See,

e.g., JA0180.

6

would serve as the LPNs’ bargaining representative.

JA0848–50, 0878–79. The bargaining unit was defined to

include “[a]ll full-time and regular part-time Licensed

Practical Nurses employed by the Employer at its Newark,

New Jersey facility, excluding all other employees, guards,

and supervisors as defined by the Act.” JA0849–50.

One of New Vista’s main objections to the bargaining

unit was that the LPNs were supervisors under 29 U.S.C.

§ 152(11) because they have the “authority” to “discipline

other employees[] . . . or effectively to recommend such

action.” If they were supervisors, the LPNs would not have a

statutory right to be represented in collective bargaining. See

29 U.S.C. § 152(3) (“The term ‘employee’ . . . shall not

include . . . any individual employed as a supervisor . . . .”);

see also NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706,

718 (2001) (“The Labor Management Relations Act, 1947

(Taft-Hartley Act) expressly excluded ‘supervisors’ from the

definition of ‘employees’ and thereby from the protections of

the Act.”). To determine whether an individual is a

supervisor, the Supreme Court has provided a three-part test:

Employees are statutory supervisors if (1) they

hold the authority to engage in any 1 of the 12

listed supervisory functions [in 29 U.S.C.

§ 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.”

7

Ky. River, 532 U.S. at 713 (quoting NLRB v. Health Care &

Ret. Corp. of Am., 511 U.S. 571, 573–74 (1994)). One of the

twelve listed supervisory functions is “disciplin[ing] other

employees.” 29 U.S.C. § 152(11).

New Vista argued that it showed that the LPNs

effectively have the power to discipline other employees

because LPNs submitted disciplinary forms known as a

“Notice of Corrective Action” or “Employee Warning

Notice.” E.g., JA0872–73, JA0884–86.

The facts surrounding these forms were fiercely

contested. See JA0856–0862. Some testimony suggested

LPNs did not use the forms to effectively recommend

discipline. One of the nurses had never seen the Employee

Warning Notice until just prior to her testimony. See JA0276;

see also JA0329. Similarly, testimony by another nurse was

that LPNs rarely (if ever) recommended a specific kind of

discipline. See JA0330.

There was, however, countervailing evidence that

supported New Vista’s position. Most notably, Director of

Nursing Victoria Alfeche testified that LPNs, in the exercise

of their own discretion, frequently filled out these forms.

Further, Alfeche explained that LPNs could recommend a

specific type of discipline and that she acted on the forms as a

matter of course. See JA0098–99, 0148.

In his March 9, 2011 order, NLRB Regional Director

J. Michael Lightner rejected New Vista’s argument, applying

a four-part test based on a vacated NLRB opinion: “To

prevail, the Employer must prove that: (a) LPNs submit

8

actual recommendations, and not merely anecdotal reports,

(b) their recommendations are followed on a regular basis, (c)

the triggering disciplinary incidents are not independently

investigated by superiors, and (d) the recommendations result

from the LPNs’ own independent judgment.” JA873 (citing

ITT Lighting Fixtures, 265 N.L.R.B. 1480, 1481 (1982),

vacated on other grounds sub nom. ITT Lighting Fixtures,

Div. of ITT Corp. v. NLRB, 712 F.2d 40 (2d Cir. 1983)).

Director Lightner’s conclusion rested heavily on his finding

that LPNs “simply report[ed] factual findings to their

superiors without any specific recommendation for

disciplinary action” and that the “higher authorities” at New

Vista proceeded with independent investigations upon

receiving the forms. See JA0873–74. Director Lightner also

noted that there were very few examples in the record of

LPNs who filled out the forms other than Grace Tumamak.

See JA0875. Director Lightner further found that forms filled

out by Ms. Tumamak could not show the authority of other

LPNs because Ms. Tumamak served as the unit manager on

one shift and as an LPN on another. See JA0850.

The election to determine whether the Union would

serve as the LPNs’ bargaining representative was held on

April 8, 2011. See JA0039. A majority of LPNs voted to be

represented by the Union by a vote of 26 to 7. See id. Four

additional votes were challenged. See id.

That same day, the Board denied New Vista’s request

for review of Director Lightner’s order that directed the

election would occur. See JA0911, available at

http://apps.nlrb.gov/link/document.aspx/09031d45804718e4.

9

Because such denials are nonreviewable, New Vista

pursued the standard course of testing the Union’s

certification by refusing to bargain. See NLRB v. FedEx

Freight, Inc., 832 F.3d 432, 435 n.1 (3d Cir. 2016); JA0021;

JA0042 (“Dear All; We are testing the certification and will

not be bargaining.”). New Vista asserted that the LPNs were

statutory supervisors and, even if they had not been prior to

the certification, they were as of March 25, 2011, because of

a change in the LPNs’ duties. See JA0049, 0053.

In a decision and order dated August 26, 2011, the

Board (Liebman, Becker, Hayes) 3 unanimously granted

summary judgment in favor of the Union and against New

Vista. See New Vista Nursing & Rehab., LLC, 357 N.L.R.B.

714.

The Board’s order granting summary judgment on the

refusal to bargain charge and many of its subsequent orders

denying New Vista’s motions for reconsideration took place

during what may fairly be described as unusual times for the

3

Member Pearce recused. See New Vista Nursing &

Rehab., LLC, 357 N.L.R.B. 714, 714 n.1 (2011).

Throughout this opinion, we frequently note which Board

members voted on particular orders. We do so because

many of New Vista’s challenges go to whether certain

members had already resigned, were illegally appointed,

or should have recused from a particular decision—not

because the identity of the Board is of significance for

any other reason.

10

Board. The political branches had not filled many of the

vacancies on the Board. This led then-President Obama to

make a series of recess appointments to fill the vacancies.

See NLRB v. Noel Canning, 134 S. Ct. 2550, 2557–58 (2014)

(describing the recess appointments); id. at 2557 (“As of

January 2012, Flynn’s nomination had been pending in the

Senate awaiting confirmation for approximately a year.”). As

is relevant here, there were two different sets of recess

appointments: (1) Craig Becker was recess appointed to the

Board in 2010, and (2) Sharon Block, Terence Flynn, and

Robert Griffin were all recess appointed in 2012. See NLRB

v. New Vista Nursing & Rehab., 719 F.3d 203, 213 (3d Cir.

2013), abrogated by Noel Canning, 134 S. Ct. 2550; id. at

244–45 (Greenaway, Jr., J., dissenting).

As described below, if there are an insufficient number

of Board Members, the Board will be unable to muster a

quorum. Without a quorum, the Board cannot issue legally

enforceable orders. The National Labor Relations Act

(“NLRA”) provides that the Board shall have five members.

29 U.S.C. § 153(a). As the Supreme Court has held, there are

three Board quorums, of which the first and third must exist

for any given NLRB decision to be valid under 29 U.S.C.

§ 153(b). See generally New Process Steel, L.P. v. NLRB,

560 U.S. 674 (2010). First, three members of the Board

constitute a quorum of the entire Board. See 29 U.S.C.

§ 153(b) (“[T]hree members of the Board shall, at all times,

constitute a quorum of the Board . . . .”); New Process Steel,

560 U.S. at 680 (“Interpreting the statute to require the

Board’s powers to be vested at all times in a group of at least

three members is consonant with the Board quorum

11

requirement, which requires three participating members ‘at

all times’ for the Board to act.” (quoting 29 U.S.C. § 153(b)).

Second, the Board may delegate its power to a three-member

group. See 29 U.S.C. § 153(b) (“The Board is authorized to

delegate to any group of three or more members any or all of

the powers which it may itself exercise.”); New Process Steel,

560 U.S. at 679 (“The first sentence of § 3(b), which we will

call the delegation clause, provides that the Board may

delegate its powers only to a ‘group of three or more

members.’” (quoting Labor Management Relations Act, 1947,

§ 3(b), Pub. L. No. 80-101, 61 Stat. 136, 139 (codified as

amended at 29 U.S.C. § 153(b))). Third, two members of any

three-member group constitute a quorum of a three-member

group. See 29 U.S.C. § 153(b) (“[T]wo members shall

constitute a quorum of any group designated pursuant to the

first sentence hereof.”); New Process Steel, 560 U.S. at 681

(“[T]he group quorum provision, which still operates to

authorize a three-member delegee group to issue a decision

with only two members participating, so long as the delegee

group was properly constituted.”). The two-member quorum

of a three-member group ceases to exist as a viable quorum

when the Board has fewer than two members. See New

Process Steel, 560 U.S. at 679.

On September 7, 2011, New Vista began filing the first

of what would ultimately be five motions for reconsideration,

arguing that the Board acted ultra vires because it had too few

Members either serving or involved in a particular decision.

In its First Motion for Reconsideration, New Vista

argued that the August 26, 2011 order was ultra vires because

12

it was posted on the Board’s website after the expiration of

the term of one of its signing members—then-Chairman

Wilma Liebman. According to New Vista, if Chairman

Liebman had not legally participated in the August 26, 2011

order, the delegee group only consisted of two members in

violation of 29 U.S.C. § 153(b). See JA0051. New Vista also

argued it was entitled to a hearing to investigate changed

circumstances in the LPNs’ authority to supervise, pursuant to

Frito-Lay, Inc., 177 N.L.R.B. 820 (1969).

On September 13, 2011, the Board filed an application

for enforcement of its August 26, 2011 order with this Court.

See JA0001.

On December 30, 2011, the Board (Becker, Hayes)

denied New Vista’s First Motion for Reconsideration. As to

Chairman Liebman, the Board explained that the August 26,

2011 order was made final prior to the August 27 end of

Chairman Liebman’s term and that the Board’s subsequent

acts with regard to the August 26, 2011 order were

ministerial. See JA0012–14. With regard to the Frito-Lay

argument, the Board rejected it “[f]or the reasons set forth in

the Board’s August 26, 2011 Decision and Order.” JA0014.

On January 3, 2012, New Vista filed its Second

Motion for Reconsideration. The Second Motion argued that

the December 30, 2011 order denying the First Motion for

Reconsideration was not decided by a “proper quorum”

because one of the three members of the panel, Chairman

Pearce, had recused. See JA0055–57. Because the panel

consisted only of Members Becker and Hayes, it was,

according to New Vista, improperly constituted.

13

On January 9, 2012, New Vista filed a petition for

review of the December 30 order with this Court. See

JA0002–03. We have treated this petition as a cross-petition

for review opposing the Board’s petition for enforcement of

the August 26, 2011 order.

On March 14, 2012, New Vista filed its Third Motion

for Reconsideration. New Vista argued that the Board’s

December 30, 2011 order denying the First Motion for

Reconsideration was ultra vires because Member Becker’s

recess appointment ended on December 17, 2011. According

to New Vista, the Board (Becker, Hayes) lacked a two-person

quorum to issue its December 30, 2011 order. See JA0058–

59.

On March 15, 2012, the Board (Hayes, Griffin, Block)

denied New Vista’s Second Motion for Reconsideration. The

Board held that there was a quorum for the December 30,

2011 order denying the First Motion for Reconsideration.

Specifically, the March 15, 2012 order relied on the fact that,

pursuant to New Process Steel, a two-member quorum of a

panel can issue legally enforceable orders. See JA0015–16.

The March 15, 2012 order quoted from the December 30,

2011 order showing that Pearce engaged in the delegation of

power to the two-member quorum and then recused. See

JA0016 (“Chairman Pearce, who is recused and did not

participate in the underlying decision, is a member of the

present panel but did not participate in deciding the merits of

this proceeding.”).

On March 22, 2012, New Vista filed its Fourth Motion

for Reconsideration, arguing that Members Griffin and Block

14

were not Board members on March 15, 2012 because they

had been illegally appointed during an intrasession recess.

See JA60–61. New Vista again argued that the December 30,

2011 order was improper because Becker was no longer a

Board member on December 30, 2011. See id.

On March 27, 2012, the Board (Hayes, Griffin, Block)

denied the Third and Fourth Motions for Reconsideration.

See JA0017–18. The Board stated that the Board properly

delegated its authority to a three-member panel and would

“not entertain any further motions for reconsideration

challenging the authority of the Board in this matter.” Id.

On April 5, 2012, New Vista filed a petition for review

of the March 15 and March 27 orders. See JA0004–06. We

granted New Vista’s request that this petition be consolidated

with New Vista’s earlier petition for review for all purposes.

These consolidated petitions for review are collectively

treated as a cross-petition opposing the Board’s petition for

enforcement of the August 26, 2011 order.

On May 16, 2013, we ruled on the Board’s petition

and New Vista’s cross-petitions, holding that the “delegee

group acted without power and lacked jurisdiction” when it

issued the August 26, 2011 order because Becker’s recess

appointment was invalid. New Vista, 719 F.3d at 221, 244.

Specifically, we held that recess appointments were legal only

when made during Congress’s “intersession breaks.” Id. at

208.

Shortly thereafter, the Board filed a petition for

rehearing en banc. On July 16, 2013, we stayed further

15

consideration of New Vista pending the Supreme Court’s

resolution of Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir.

2013), which also addressed the legality of recess

appointments to the Board. See Order, No. 12-1027 (3d Cir.

filed July 15, 2013).

On June 26, 2014, the Supreme Court issued its

decision in Noel Canning. 134 S. Ct. 2550. The Supreme

Court held that, as used in the Appointments Clause, “the

phrase ‘the recess’” is not limited to recesses between

congressional sessions. Id. at 2561. Recess appointments

could be made during an intrasession recess, but such a recess

that is “less than 10 days is presumptively too short to fall

within the Clause.” Id. at 2567. Further, “pro forma

sessions” are not “periods of recess,” so no recess

appointments could be made during any intrasession recess

punctuated by pro forma sessions fewer than ten days apart.

Id. at 2574.

Applying those rules, the Supreme Court held that

Griffin’s and Block’s recess appointments were invalid.

When Griffin and Block received their recess appointments,

the Senate had been holding “pro forma sessions every

Tuesday and Friday.” Id. at 2557. Because these pro forma

sessions limited the length of the intrasession recess, the

resulting 3-day recesses were “too short to trigger the

President’s recess-appointment power.” Id. at 2574.

At the same time, the Supreme Court implied that

Member Becker’s appointment was valid because it was

made during a two-week intrasession recess. See id. at 2558

(“The President appointed Member Becker during an intra-

16

session recess that was not punctuated by pro forma sessions,

and the vacancy Becker filled had come into existence prior

to the recess.”); see also New Vista, 719 F.3d at 213

(“Member Becker . . . was appointed on March 27, 2010, one

day after the Senate ‘adjourn[ed]’ for two weeks.” (quoting

156 Cong. Rec. S2180 (daily ed. Mar. 26, 2010) (statement of

Sen. Kaufman)).

Following the Supreme Court’s Noel Canning

decision, we granted the Board’s motion for panel rehearing.

In response to this Court’s questions, the Board admitted it

“undisputedly lacked a quorum” for its March 15, 2012, and

March 27, 2012 orders. 4 Motion of the National Labor

Relations Board for Limited Remand of the Administrative

Record, No. 11-3440, Doc No. 003112144322 (3d Cir. Dec.

2, 2015). The Board requested that we remand the

administrative record so that it could rule on the motions for

reconsideration it denied in March 2012. See id. We granted

4

Because the Board undisputedly lacked a quorum in

March 2012, this Court may have lacked jurisdiction over

this case had we not remanded because submitting the

record creates jurisdiction in this Court, 29 U.S.C.

§ 160(e) (“Upon the filing of the record with it the

jurisdiction of the court shall be exclusive and its

judgment and decree shall be final.”), and the Board may

have lacked the power to submit the record when it did so

on March 27, 2012, see NLRB Certified List

Transmitted, No. 11-3440 (3d Cir. filed Mar. 27, 2012).

17

the motion for remand. See Order, No. 11-3440 (3d Cir. filed

Dec. 4, 2015).

On remand, the Board (Miscimarra, Hirozawa,

McFerran) again denied New Vista’s Second and Third

Motions for Reconsideration on the merits and then denied

New Vista’s Fourth Motion for Reconsideration as moot.

SA14–18.

New Vista then filed a Fifth Motion for

Reconsideration, arguing a lack of transparency and that there

was no valid quorum to enter the most recent order because

Member Hirozawa should have recused himself. Among

other things, New Vista claimed that Member Hirozawa’s

former law firm represented the Union in this case. See

SA19–20. On January 5, 2016, the Board denied the Fifth

Motion for Reconsideration, with Member Hirozawa denying

the request for recusal. See SA21–26. The Board explained

that New Vista knew that the Board planned to review the

Fourth Motion for Reconsideration “expeditiously.” SA23.

As to recusal, the Board referred New Vista to an attached

statement by Member Hirozawa. See id. Member Hirozawa

explained that he did not recuse because, among other things,

he had no involvement with “this matter or any other matter

concerning” New Vista while in private practice and his first

work on this case was more than five years after he left his

previous firm. See SA24–26.

Following New Vista’s denial of the Fifth Motion for

Reconsideration, we ordered supplemental briefing and

requested a supplemental appendix. See Order, No. 11-3440

(3d Cir. filed Jan. 21, 2016). Having received this

18

supplemental material, we now review the Board’s petition

for enforcement and New Vista’s cross-petitions for review.

JURISDICTION

We have jurisdiction over the Board’s petition for

enforcement pursuant to 29 U.S.C. § 160(e) and jurisdiction

over New Vista’s petitions to review the Board’s final order

pursuant to 29 U.S.C. § 160(f). See 800 River Rd. Operating

Co. LLC v. NLRB, 784 F.3d 902, 906 (3d Cir. 2015).

STANDARD OF REVIEW

“The Board’s legal determinations are subject to

plenary review, but we will uphold the Board’s interpretations

of the Act if they are reasonable.” MCPc Inc. v. NLRB, 813

F.3d 475, 482 (3d Cir. 2016) (citing Mars Home for Youth v.

NLRB, 666 F.3d 850, 853 (3d Cir. 2011)). “[W]e will accept

the Board’s factual findings and the reasonable inferences

derived from those findings if they are ‘supported by

substantial evidence on the record considered as a whole.’”

Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592,

606 (3d Cir. 2016) (quoting 29 U.S.C. § 160(f)). Where the

Board has adopted the Regional Director’s findings, we

perform our substantial evidence review of the Regional

Director’s findings. See MCPc, 813 F.3d at 482.

We review a Board member’s decision whether to

recuse under an abuse-of-discretion standard, reversing only

when a decision is “arbitrary or unreasonable.” 1621 Route

22 W. Operating Co., LLC v. NLRB, 825 F.3d 128, 143–44

(3d Cir. 2016).

19

DISCUSSION

To put it mildly, motions for reconsideration have

piled up in this case. The following table shows the tangled

nature of the five motions for reconsideration:

20

Orders and Motions under Consideration

21

We will address the motions for reconsideration in

reverse chronological order. In resolving all of these

motions, as we do, in favor of the Board, we conclude

that we must remand so that the Board may apply an

appropriate test to determine whether the LPNs have the

authority to discipline other employees.

I. THE FIFTH MOTION FOR

RECONSIDERATION (RESOLVED IN THE

BOARD’S JANUARY 5, 2016 ORDER)

New Vista’s Fifth Motion for Reconsideration

alleged that the Board’s December 17, 2015 order was

invalid because (1) New Vista did “not even know the

Board was considering the matter”—in its brief, New

Vista frames this as a “lack of transparency,” New Vista

Supp. Br. 5 5—and (2) Member Hirozawa should have

recused. See SA19. Both arguments fail.

5

We cite to the parties’ responsive briefs following the

order granting rehearing and filed September 29, 2014

(New Vista), November 25, 2014 (NLRB), and

December 9, 2014 (New Vista), as “New Vista

Rehearing Br.,” “NLRB Rehearing Br.,” and “New Vista

Rehearing Reply,” respectively. We cite to the parties’

responsive briefs following the supplementation and

resubmission of the record and filed February 22, 2016

(New Vista), March 23, 2016 (NLRB), and April 6, 2016

22

First, with regard to the Board’s “transparency,”

New Vista now argues that there were two failures: (a)

the Board acted with “great alacrity” in resolving the

Fourth Motion for Reconsideration in its January 5, 2016

order, New Vista Supp. Br. 1–2, and (b) the Board

engaged in unlawful ex parte communication with its

general counsel prior to resolving the Fourth Motion for

Reconsideration, see New Vista Supp. Br. 2–5. The first

argument does not present any legal deficiency and we

do not have jurisdiction to address the second because it

was not presented to the Board. If we had jurisdiction,

we would find this argument unavailing.

With regard to the Board’s “alacrity” in resolving

the Fourth Motion for Reconsideration or failure to tell

New Vista that it would soon be resolving the Fifth

Motion for Reconsideration, New Vista fails to present

any factual or legal basis for overturning the January 5,

2016 order. First, New Vista provides no legal hook on

which to hang its grievance. And with regard to the

facts, there is substantial evidence to support a finding

that New Vista knew that the Board planned to act

expeditiously. The Board had previously advised this

Court it would resolve New Vista’s outstanding motions

within thirty days. See SA4. Accordingly, the Board is

(New Vista), as “New Vista Supp. Br.,” “NLRB Supp.

Br.,” and “New Vista Supp. Reply,” respectively.

23

entitled to the benefit of the presumption of regularity.

See Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir.

2005).

With regard to the ex parte communications

argument, we lack jurisdiction to consider this argument

because New Vista failed to raise this argument before

the Board. See 29 U.S.C. § 160(e) (“No objection that

has not been urged before the Board, its member, agent,

or agency, shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.”); FedEx

Freight, 832 F.3d at 437 (“The crucial question in a

section 160(e) analysis is whether the Board received

adequate notice of the basis for the objection.” (internal

quotation marks omitted) (quoting FedEx Freight, Inc. v.

NLRB, 816 F.3d 515, 521 (8th Cir. 2016))); id. at 448

(“[T]he Court of Appeals lacks jurisdiction to review

objections that were not urged before the Board . . . .”

(quoting Woelke & Romero Framing, Inc. v. NLRB, 456

U.S. 645, 666 (1982))). New Vista only argued in its

motion (and the Board only addressed in its order) that

the Board ruled too expeditiously and without notice.

See SA19; SA23 (addressing only New Vista’s

contentions that it was unaware that its reconsideration

motion was being considered and that the Board ruled on

the reconsideration motion too quickly).

24

Were we to reach New Vista’s ex parte

communication argument, we would rule for the Board.

The Board’s General Counsel alternates between two

dramatically different roles in a labor litigation,

depending on whether it is prosecuting a case before the

Board or representing the Board in court. As a result, the

General Counsel’s communications are only ex parte

when it prosecutes a case—not when it acts as the

Board’s counsel in a court proceeding pursuant to a

petition for enforcement or petition for review. 6 Here,

6

See 29 C.F.R. § 102.126(a) (2016) (“No interested

person outside this agency shall, in an on-the-record

proceeding of the types defined in § 102.128, make or

knowingly cause to be made any prohibited ex parte

communication to Board agents of the categories

designated in that section relevant to the merits of the

proceeding.”); 29 C.F.R. § 102.127(a) (2016) (“The term

person outside this agency, to whom the prohibitions

apply, shall include . . . the general counsel or his

representative when prosecuting an unfair labor

practice proceeding before the Board pursuant to

section 10(b) of the Act.” (emphasis added)); 29 C.F.R.

§ 102.130 (2016) (“Ex parte communications prohibited

by § 102.126 shall not include[] . . . [o]ral or written

communications from the general counsel to the Board

when the general counsel is acting as counsel for the

Board.” (emphasis added)).

25

the allegedly ex parte communications occurred on

November 25, 2015, and December 2, 2015. See New

Vista Supp. Br. 3. Both communications were made

prior to this Court’s remand of the proceeding to the

Board on December 4, 2015. Therefore, at the time the

General Counsel communicated to the Board, the

General Counsel was operating in his capacity as

“counsel for the board.” 29 C.F.R. § 102.130(f) (2016).

By definition, his communications could not have been

ex parte.

Second, New Vista argues that Member Hirozawa

should have recused for four reasons: (1) Member

Hirozawa worked for Gladstein, Reif & Meginniss, LLP

(“Gladstein”), prior to joining the Board, and Gladstein

served as counsel for the Union in the instant matter;

(2) in his previous position at the Board, Member

Hirozawa worked as chief counsel for Chairman Pearce

who also worked for Gladstein; (3) Member Hirozawa’s

successor as counsel for Chairman Pearce actually

represented the Union in this matter; and (4) Member

Hirozawa may return to Gladstein. See New Vista Supp.

Br. 6–10.

Member Hirozawa did not abuse his discretion by

choosing not to recuse. See 1621 Route 22 W. Operating

Co., 825 F.3d at 143–44 (“We review an agency

member’s decision not to recuse himself from a

proceeding under a deferential, abuse of discretion

26

standard.” (quoting Metro. Council of NAACP Branches

v. FCC, 46 F.3d 1154, 1164 (D.C. Cir. 1995))).

It was not unreasonable for Member Hirozawa to

conclude that he did not need to recuse because he had

not personally represented the Union in this matter and

had been away from Gladstein for more than five years

before having any involvement in the instant matter. See

SA25; cf. United States v. Dansker, 537 F.2d 40, 53–54

(3d Cir. 1976) (holding that a judge did not need to

recuse when the judge previously investigated a company

with which the criminal defendants were associated

because the criminal defendants’ allegations “merely

evidence ‘an impersonal prejudice, (going) to the judge’s

background and associations rather than his appraisal of

the (movants) personally’”), abrogated on other grounds

by Griffin v. United States, 502 U.S. 46, 57 n.2 (1991).

New Vista’s argument that Member Hirozawa

should recuse because his successor as chief counsel to

Chairman Pearce represented the Union in this matter

and previously worked with Member Hirozawa provides

no more reason for Member Hirozawa to recuse than the

above-rejected argument that Member Hirozawa worked

at Gladstein.

Finally, New Vista suggests that Member

Hirozawa should recuse because of the possibility that he

may return to Gladstein. See New Vista Supp. Reply 3

(“[H]e could be back at his old, nine member, firm while

27

this case is still sub judice before this court .[sic]”). This

is rank speculation and it cannot therefore create an

appearance of impropriety. See Air Line Pilots Ass’n,

Int’l v. U.S. Dep’t of Transp., 899 F.2d 1230, 1232 (D.C.

Cir. 1990) (holding that “[t]he political branches of

government, so far as we can tell, have never authorized

as an ethical requirement” that the Secretary of

Transportation be “disqualif[ied] from any matter

affecting a client of a prospective employer”).

Because the Board’s speed in resolving the Fourth

Motion for Reconsideration was not unlawful and

because Member Hirozawa did not abuse his discretion

when he decided not to recuse, the Board correctly

denied New Vista’s Fifth Motion for Reconsideration.

II. THE SECOND, THIRD, AND FOURTH

MOTIONS FOR RECONSIDERATION (THE

DECEMBER 17, 2015 ORDER)

A. The Fourth Motion for Reconsideration

In its Fourth Motion for Reconsideration, New

Vista argued that, under alternate readings of the Recess

Appointments Clause, either (a) Member Becker was not

a Member when he joined in the December 30, 2011

order (addressing the Second Motion for

Reconsideration) or (b) Members Griffin and Block were

not members when they joined in the March 15, 2012

order (addressing the Third Motion for Reconsideration).

28

See JA0061. According to New Vista, if the Senate

“recessed” when it began having pro forma sessions,

Becker’s recess appointment from the previous Session

terminated. But, New Vista’s argument goes, if the

Senate were not in recess, Griffin and Block could not be

appointed. See id.

In its December 17, 2015 order, the Board

(Miscimarra, Hirozawa, McFerran) mooted New Vista’s

Fourth Motion for Reconsideration by reaffirming the

reasoning in its previous orders addressing New Vista’s

Second and Third Motions for Reconsideration. See

SA17–18. The December 17, 2015 panel was lawfully

constituted. Cf. Greater Omaha Packing Co., Inc. v.

NLRB, 790 F.3d 816, 825 (8th Cir. 2015) (holding that an

argument that an earlier decision was “decided by a panel

that lacked a quorum” was not relevant to a particular

later decision made by a panel that “was properly

constituted”).

B. The Third Motion for Reconsideration

In the Third Motion for Reconsideration, New

Vista argued that the December 30, 2011 order was

invalid because Member Becker’s recess appointment

expired on December 17, 2011 with the recess of the

Senate. See JA0058.

Following Noel Canning, other courts have held

that Becker’s appointment was valid. We agree. A valid

29

recess appointment lasts until the close of the next Senate

session, which, in Becker’s case was January 3, 2012.

Therefore, Becker was a duly appointed member of the

quorum that decided the December 30, 2011 order.

As noted above, Noel Canning held that, because

Griffin and Block were appointed during recesses of

fewer than ten days, when including pro forma sessions,

their appointments were invalid. See Noel Canning, 134

S. Ct. at 2574. Although the Supreme Court did not rule

directly on the validity of Becker’s appointment, it noted

that the circumstances surrounding his appointment were

different from those that made the appointments of

Griffin and Block invalid: “The President appointed

Member Becker during an intra-session recess that was

not punctuated by pro forma sessions, and the vacancy

Becker filled had come into existence prior to the

recess.” Id. at 2558.

We agree with our sister courts of appeals that

have decided this question: Because Becker’s

appointment was made in a recess of more than 17 days,

Member Becker’s appointment was valid. See Mathew

Enter., Inc. v. NLRB, 771 F.3d 812, 814 (D.C. Cir. 2014)

(holding that Member Becker’s appointment “was

constitutionally valid”); Gestamp S.C., L.L.C. v. NLRB,

769 F.3d 254, 257–58 (4th Cir. 2014) (similar);

Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198,

1201 (10th Cir. 2014) (similar).

30

Based on Noel Canning, there can be no question

that Becker’s appointment lasted through the December

30, 2011 order. A recess appointment does not expire

until the end of the next Senate session. See U.S. Const.

art. II, § 2, cl. 3 (“The President shall have Power to fill

up all Vacancies that may happen during the Recess of

the Senate, by granting Commissions which shall expire

at the End of their next Session.” (emphasis added));

Noel Canning, 134 S. Ct. at 2565 (contemplating that

recess appointments would terminate at the end of the

next Senate session).

Because the Senate did not declare an intersession

recess, Member Becker’s recess appointment expired on

January 3, 2012, when the new congressional session

began. See Dodge of Naperville, Inc. v. NLRB, 796 F.3d

31, 41 (D.C. Cir. 2015) (explaining that Member

Becker’s tenure ran through noon on January 3, 2012); cf.

Noel Canning, 134 S. Ct. at 2558 (“[T]he second session

of the 112th Congress began on January 3, 2012 . . . .”);

NLRB v. Bluefield Hosp. Co., LLC, 821 F.3d 534, 538

(4th Cir. 2016) (“As of January 3, 2012, the terms of

three of the Board’s five members had expired.”).

Because Member Becker was acting as a validly

appointed Member of the Board when he joined the

December 30, 2011 order, the Board correctly denied the

Third Motion for Reconsideration.

31

C. The Second Motion for Reconsideration

In the Second Motion for Reconsideration, New

Vista stated that the Board’s December 30, 2011 order

was invalid because the third member of the panel,

Chairman Pearce, was recused and therefore could not

delegate his power to the remaining two members of the

Board. See JA055. The Board has stated that Pearce

recused after delegating his power. We conclude the

delegation was permissible.

On December 30, 2011, when the order was

issued, the Board consisted of three members: Pearce,

Becker, and Hayes. Pearce determined he had a conflict

and therefore could not participate substantively. As

noted above, the Board’s organic statute, as interpreted

by New Process Steel, allows the Board to delegate its

powers to a three-member panel and for two members to

constitute a quorum of a three-member panel. See 29

U.S.C. § 153(b); New Process Steel, 50 U.S. at 681

(“[T]he group quorum provision . . . still operates to

authorize a three-member delegee group to issue a

decision with only two members participating, so long as

the delegee group was properly constituted.”). Thus,

Becker and Hayes could properly enter the December 30,

2011 order if and only if the Board (Pearce, Becker,

Hayes) delegated its power to a three-member panel

(Pearce, Becker, Hayes) from which Pearce then recused.

See D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 353 (5th

32

Cir. 2013) (“[T]wo members of that panel may decide a

case ‘if, for example, the third member had to recuse

himself from a particular matter.’ . . . [T]he Board could

validly issue its decision through two of its members,

provided that the Board delegated authority to a three-

member panel and that such a panel still existed when the

two members acted.” (quoting New Process Steel, 560

U.S. at 679)).

That is what the Board did here. The December

30, 2011 order explained: “Chairman Pearce, who is

recused and did not participate in the underlying

decision, is a member of the present panel but did not

participate in deciding the merits of this proceeding.”

JA0012 n.2 (emphasis added).

New Vista challenges the Board’s delegation to a

three-member panel of Pearce, Becker, and Hayes on the

ground that Pearce had already recused himself from the

matter and therefore could not have participated in the

delegation of the Board’s power to a three-member panel

and could not be considered a member of the three-

member panel. See New Vista Rehearing Br. 52 (“Since

Chairman Pearce previously recused himself from

consideration of the case, he could not participate in the

decision to delegate to a panel . . . and could not be a

33

member of the panel delegated to determine New Vista’s

reconsideration request.” (citation omitted)). 7

We see no reason to look behind the Board’s

statement that Chairman Pearce participated in the

delegation and then recused from substantive

deliberations. Other courts have approved this

procedure. Cf. D.R. Horton, 737 F.3d at 354 (“There is

7

Ordinarily, there is no procedural unfairness when a

conflicted decisionmaker delegates his or her authority to

a neutral decisionmaker—indeed, that is what a recusal

essentially entails. Cf. In re Grand Jury Subpoena,

Judith Miller, 438 F.3d 1141, 1143 (D.C. Cir. 2005) (“As

the investigation proceeded, in December of 2003, the

Attorney General recused himself from participation and

delegated his full authority in the investigation to the

Deputy Attorney General as Acting Attorney General.”);

Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d

534, 539 (4th Cir. 2009) (“The General Counsel, in turn,

recused himself (because of personal ties to the case) and

delegated [the Board’s statutory] power in the case at

hand to the Deputy General Counsel.”); U.S. Office of

Government Ethics, OGE Informal Advisory

Memorandum 99 X 8, 1999 WL 33308429, at *4 (Apr.

26, 1999) (“Recusal will mean that someone else must

act in the employee’s stead concerning any matters that

could affect the disqualifying interest.”).

34

no indication that the Board deviated from its customary

practice of delegating authority to the three-member

panel and allowing two members to decide the case when

Member Hayes recused.”); Brown v. Trueblue, Inc., No.

1:10-CV-0514, 2012 WL 1268644, at *6 n.7 (M.D. Pa.

Apr. 6, 2012) (agreeing that the procedure in D.R. Horton

was valid in light of New Process Steel).

With Pearce’s involvement, three members of the

Board participated in the delegation of the order denying

the First Motion for Reconsideration. As we next

discuss, the Board correctly denied the First Motion for

Reconsideration.

III. THE FIRST MOTION FOR

RECONSIDERATION (THE DECEMBER 30, 2011

ORDER)

New Vista’s First Motion for Reconsideration

raised two issues with the August 26, 2011 order. First,

New Vista argued that the August 26, 2011 order was

ultra vires because the term of one of the three Members

signing the order—Chairman Liebman—expired before

the order was mailed and posted on the Board’s website.

See, e.g., JA0052; New Vista Rehearing Br. 32, 40–48.

As we stated in our previous New Vista opinion,

Chairman Liebman was a member of the panel when the

order was decided, and later ministerial acts are irrelevant

to the question of the order’s validity. See New Vista,

719 F.3d at 213–15. Second, New Vista argued that the

35

Board failed to distinguish Frito-Lay, a past NLRB

decision that required a hearing when there were changed

circumstances. As the Board has noted in subsequent

cases, Frito-Lay applies only when the changed

circumstances result from a process begun prior to the

representation proceeding before the Board. Here, the

Board did not apply Frito-Lay because it believed the

changed circumstances were in response to the Board

proceedings. Cf. NLRB v. Sw. Reg’l Council of

Carpenters, 826 F.3d 460, 464 (D.C. Cir. 2016) (“[T]he

Board need not address ‘every conceivably relevant line

of precedent in [its] archives,’ but it must discuss

‘precedent directly on point.’” (quoting Lone Mountain

Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164

(3d Cir. 2013))).

First, with regard to New Vista’s objection

concerning Chairman Liebman, we previously answered

this objection in our 2013 opinion. See New Vista, 719

F.3d at 213–15. Although we vacated our opinion with

our August 11, 2014 Order granting rehearing in this

case, we reaffirm our earlier reasoning on this issue. We

stated then that the Board’s August 26, 2011 order “is

entitled to a presumption of regularity.” New Vista, 719

F.3d at 214 (internal quotation mark omitted) (quoting

Frisby v. U.S. Dep’t of Hous. & Urban Dev., 755 F.2d

1052, 1055 (3d Cir. 1985)). The order was dated August

26 and states that Chairman Liebman approved the

decision contained therein. See id. The Board’s failure

36

to post the order on its website prior to the August 27,

2011 expiration of Chairman Liebman’s term does not

rebut the presumption of regularity. See id. at 214–15.8

8

In our now-vacated ruling, we cited Braniff Airways,

Inc. v. Civil Aeronautics Board, 379 F.2d 453 (D.C. Cir.

1967), for the proposition that ministerial acts that occur

after a decisionmaker has left power do not deprive the

original decision of effect. See New Vista, 719 F.3d at

214. New Vista argues our earlier reasoning is wrong

because Braniff Airways states that an order is treated as

complete “once all members have voted for an award and

caused it to be issued.” Braniff Airways, 379 F.2d at 459.

New Vista then argues that Braniff supports its position

because there is neither “substantial evidence” of when

Liebman “‘voted for’ or ‘signed’ it and of whether and

when she ‘caused it to be issued.’” New Vista Rehearing

Br. 43. As we explained in our original decision, “the

presumption of regularity requires that we consider the

date as the record of when the delegee group caused the

opinion to be issued, which presupposes that they voted

on or before that date.” New Vista, 719 F.3d at 215.

Moreover, any distinction between “voting for” the

decision and “causing it to be issued” is irrelevant. For

example, if one orders flowers on February 11 and the

flowers are delivered on Valentine’s Day, that person has

“caused” the flowers to be delivered on February 11,

37

With regard to Frito-Lay, 177 N.L.R.B. 820

(1969), New Vista first argues that the Board “fail[ed] to

hold a hearing on . . . changed factual circumstances” as

required by that decision. New Vista Rehearing Br. 17–

18, 49–51. Later in its brief, however, New Vista

concedes that its real objection is that the Board failed to

“distinguish” Frito-Lay. New Vista Rehearing Br. 50;

see also id. (“This Court requires the NLRB, in order to

dispel any appearance of arbitrariness, to set forth the

reasons for not following its prior decisions and the

distinctions that compel a different result in order to be

enforced.”); New Vista Rehearing Reply 22 (“[T]he

even though there are intermediate steps (credit card

processing, packaging, delivery, etc.) between the order

and the February 14 delivery.

New Vista flatly misreads the record when it

argues that “the NLRB concedes [A0013] that the

Decision and Order were not ‘ready for issuance’ until

after August 26, 2011.” New Vista Rehearing Br. 45. In

fact, the cited page states: “There is no dispute that the

Board dated the above-referenced Decision and Order

August 26, 2011. Consistent with Board practice, the

date of the Decision and Order reflects the date on which

all members had voted on the final draft. At that point,

the Decision and Order was ready for issuance to the

public and service on the parties.” JA0013 (emphasis

added).

38

NLRB has yet to explain why Frito Lay got a hearing and

New Vista did not . . . .”).

But the Board’s August 26, 2011 order makes

abundantly clear why this is not a situation where Frito-

Lay applies. In Frito-Lay, the relevant changes to the

duties of the employees were implemented based on the

results of a consulting firm’s study of the employer’s

organization that “beg[a]n . . . before this proceeding was

instituted.” Frito-Lay, Inc., 177 N.L.R.B. 820, 821

(1969). The Board found that the Frito-Lay changes

“[were] clearly not for the purpose of avoiding

compliance with the Board’s unit finding.” Id.

By contrast with Frito-Lay, in the August 26, 2011

order, the Board took notice of the Board’s own

allegations that changes to the LPNs’ duties were made

unlawfully to “prevent them from obtaining union

representation.” New Vista, 357 N.L.R.B. at 715 n.3. 9 In

9

In response to those allegations, the Board (Hayes,

Griffin, Block) ultimately “found that the employer . . .

altered the duties of licensed practical nurses to convert

them into statutory supervisors in order to prevent them

from obtaining union representation.” See New Vista

Nursing & Rehab., LLC, 358 N.L.R.B. 473 (2012). But

this finding has likely been nullified by Noel Canning, as

acknowledged by the Board, see Colonial Parking, 363

39

so doing, the Board cited one of several cases that

distinguishes Frito-Lay on these grounds. See id. at 715

n.5 (citing Telemundo de P.R., Inc. v. NLRB, 113 F.3d

270, 279 (1st Cir. 1997)). Indeed, New Vista’s brief

acknowledges several cases explaining that a business

has to show that the alleged changed circumstances

preexisted the representation proceeding, which New

Vista failed to do here. See Comar, Inc, 349 N.L.R.B.

342, 359 n.36 (Feb. 2, 2007) (“Frito-Lay is also

inapplicable because the invalidation of the unit there

was based on a major overhaul of the employer’s national

management structure, which the Board found

completely eliminated the level of organizational control

upon which the unit was premised and was ‘clearly not

for the purpose of avoiding compliance with the Board’s

unit finding.’”); K Mart Corp., 323 N.L.R.B. 583 (1996);

see also Telemundo de P.R., 113 F.3d at 278 (“An

employer who seeks to overcome that presumption bears

a heavy burden of showing that a legitimate business

necessity arising out of circumstances that were in play

before the representation proceeding concluded forced

him to recast job descriptions.”). Because the Board

found that the facts here were distinguishable from those

N.L.R.B. No. 90, at 1 n.1 (2016), and, in any event, is

now pending before this Court, see No. 12-3524.

Accordingly, we do not rely on this finding.

40

in Frito-Lay, there was no need for the Board to invoke

Frito-Lay simply to distinguish it.

IV. WHETHER THE LPNs ARE SUPERVISORS

(THE AUGUST 26, 2011 ORDER)

Having considered all five of New Vista’s motions

for reconsideration, we finally arrive at the merits:

whether the LPNs have the effective authority to

recommend discipline. In its August 26, 2011 order, the

Board applied a test that is incompatible with our

caselaw. Specifically, the Board relied on the evidence

that management independently investigated the LPNs’

written complaints and that few LPNs apparently

submitted written complaints. Our caselaw holds that

those are inappropriate factors on which to rely. We will

therefore remand for further consideration.

Before discussing how the Board got it wrong, we

first set out important legal factors the Board must follow

on remand. See MCPc, 813 F.3d at 487 (3d Cir. 2016)

(“Because the ALJ and Board’s rejection of these

rationales may have stemmed from confusion as to the

appropriate analytical framework, we address the choice

of test before turning to its application in this case.”).

Whether LPNs in a given nursing home are

statutory supervisors is a factbound question about which

41

different circuits have suggested different rules.10 See

NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 163 (3d

Cir. 1999) (“[R]esolution of the question of whether a

charge nurse exercises independent judgment is

inherently factual in nature, although the cases suggest

that similar organizational structures exist throughout the

nursing home industry.”); see, e.g., Frenchtown

Acquisition Co. v. NLRB, 683 F.3d 298, 308 (6th Cir.

2012) (no supervisory status for nurses who, in a

progressive disciplinary system, had authority only to

“bring [nurses’] aide errors or misconduct to a manager’s

attention,” but not to “decide how to proceed” with that

information); Schnurmacher Nursing Home v. NLRB,

214 F.3d 260, 265–66 (2d Cir. 2000) (“In actual practice,

the CNs appear not to have formally disciplined CNAs or

even to have recommended discipline, albeit, the CNs

10

As noted above, there is a three-part test to determine

whether an employee is a statutory supervisor: (1) the

employee “hold[s] the authority to engage in any 1 of the

12 listed supervisory functions” in 29 U.S.C. § 152(11),

(2) the employee’s “exercise of such authority is not of a

merely routine or clerical nature, but requires the use of

independent judgment,” and (3) the employee’s authority

is held “in the interest of the employer.” Ky. River, 532

U.S. at 713. Here, the issue is whether the nurses held

the authority to effectively recommend discipline and

whether they used independent judgment.

42

did, from time to time, refer CNA misconduct to a nurse

manager but without recommendation.”).

Our last word on the subject was in Attleboro

Associates. In Attleboro, we contrasted existing

precedent from other circuits and found the Attleboro

nurses were supervisors because they had the authority,

when confronted with misbehavior, to make a decision to

do nothing, “counsel an offending CNA directly, or

initiate a progressive disciplinary process that becomes

part of a CNA’s permanent personnel file and could lead

to her termination.” Attleboro, 176 F.3d at 165.

Attleboro rejected the Board’s position that an

employee does not have authority to effectively

recommend discipline if the employee’s supervisors

independently investigate the employee’s

recommendation. Similar to this case, in Attleboro, the

Board argued: “[T]o be supervisory, the actions taken

‘must not only initiate, or be considered in determining

future disciplinary action, but also . . . must be the basis

for later personnel action without independent

investigation or review by superiors.’” Br. for the

NLRB, Attleboro, 176 F.3d 154 (Nos. 98-6168, 98-6211)

(3d Cir. Dec. 7, 1998), 1998 WL 34176828, at *35

(quoting Passavant Health Care Ctr., 284 N.L.R.B. 887,

889 (1987)).

Relying heavily on Glenmark Associates, Inc. v.

NLRB, 147 F.3d 333 (4th Cir. 1998), we rejected the

43

Board’s position and held that the LPNs had the power to

effectively supervise the CNAs. See Attleboro, 176 F.3d

at 164–66. We noted approvingly that Glenmark

“recognized that the NLRA does not preclude a charge

nurse from having supervisory status merely because her

recommendation is subject to a superior’s investigation.”

Attleboro, 176 F.3d at 164. Thus, we concluded that “an

acceptance of the Board’s reading of the NLRA in this

case ‘would . . . render the statutory phrase “effectively

to recommend” nugatory.’” Attleboro, 176 F.3d at 165–

66 (quoting Caremore, Inc. v. NLRB, 129 F.3d 365, 370

(6th Cir. 1997)).

In addition to relying on Glenmark, Attleboro

distinguished (1) an Eighth Circuit decision and (2) a

District of Columbia Circuit decision that both held that

nurses were not statutory supervisors. First, in the Eighth

Circuit case, the key fact was that the “nurses’

disciplinary authority consisted ‘solely of the power to

verbally reprimand [nursing assistants].’” Attleboro, 176

F.3d at 165 (quoting Beverly Enters. v. NLRB, 148 F.3d

1042, 1046 (8th Cir. 1998)).11

11

Our Attleboro precedent noted that the nurses in the

Eighth Circuit case were held not to be “‘an integral part

of the disciplinary process’ and ‘play[ed] no role in

determining whether an employee is disciplined or in

44

Second, in the D.C. Circuit case, “the record did

not reveal any instances where a charge nurse exercised

th[e] authority” to discipline. Attleboro, 176 F.3d at 165

(emphasis added) (discussing Beverly Enters.-Mass., Inc.

v. NLRB, 165 F.3d 960 (D.C. Cir. 1999)). Thus, the D.C.

Circuit held that the nurses’ authority was merely “a

speculative possibility, which absent demonstration, is

simply ‘paper power.’” Beverly Enters.-Mass., 165 F.3d

at 964. This was in contrast to Attleboro where the

nurses “initiate[d] a progressive disciplinary process, and

their decisions to write up a CNA bec[a]me a permanent

part of the CNA’s personnel file.” Attleboro, 176 F.3d at

165.

Thus, we held that “because Attleboro’s LPN

charge nurses make a decision to counsel an offending

CNA directly, or initiate a progressive disciplinary

process that becomes part of a CNA’s permanent

personnel file and could lead to her termination, the

charge nurses effectively recommend discipline using

independent judgment within the meaning of section

2(11).” Id. Although Attleboro repeatedly points out that

the progressive disciplinary process employed in that

determining the type of discipline to be imposed.’”

Attleboro, 176 F.3d at 165 (quoting Beverly Enters., 148

F.3d at 1046). Here, the Board arguably made those

same findings.

45

case could ultimately lead to termination, it is clear that a

nurse can be a statutory supervisor if he or she has the

authority to effectively recommend less onerous

discipline. For instance in Warner Co. v. NLRB, we held

that “sending a[n employee] home is discipline”—as was

“cal[ing] the plant manager’s attention to instances of . . .

violations of the work rules.” 365 F.2d 435, 439 (3d Cir.

1966). This is also implicit in the statutory text because

29 U.S.C. § 152(11) states, among other things, that a

supervisor can “hire, transfer, suspend, lay off, . . .

discharge, . . . or discipline other employees.” Were

“discipline” the same as “lay[ing] off” or

“discharg[ing],” the word “discipline” would have been

mere surplusage. See Langbord v. U.S. Dep’t of

Treasury, 832 F.3d 170, 182 (3d Cir. 2016) (en banc)

(“We assume . . . that every word in a statute has

meaning and avoid interpreting one part of a statute in a

manner that renders another part superfluous.” (quoting

Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539

F.3d 199, 210 (3d Cir. 2008))).

Following and citing Attleboro, we further held in

another case that the “number of instances” of

supervision does not determine whether employees are

supervisors. See NLRB v. Prime Energy Ltd. P’ship, 224

F.3d 206, 210 (3d Cir. 2000) (“The mere fact that the

regional director found only one instance where a Shift

Supervisor sent a Plant Operator home is hardly a

reasonable basis to conclude that the authority was

46

lacking. It simply suggests that the authority was rarely

needed.”).

Thus, applying Attleboro, we recognize three facts

that together may show an employee is a statutory

supervisor: (1) the employee has the discretion to take

different actions, including verbally counseling the

misbehaving employee or taking more formal action, see

Attleboro, 176 F.3d at 165 (“Attleboro’s LPN charge

nurses make a decision to counsel an offending CNA

directly, or initiate a progressive disciplinary

process . . . .”); (2) the employee’s actions “initiate” the

disciplinary process, see id. (“The circumstances clearly

are different here inasmuch as Attleboro’s charge nurses

initiate a progressive disciplinary process . . . .”); and

(3) the employee’s action functions like discipline

because it increases severity of the consequences of a

future rule violation, see id. (“[T]heir decisions to write

up a CNA become a permanent part of the CNA’s

personnel file and could lead to the CNA’s

termination.”).

And, from Attleboro and Prime Energy, we also

derive two facts that do not disprove supervisory status:

(1) whether a nurse’s supervisor undertakes an

independent investigation, see Attleboro, 365 F.3d at 164

(“[T]he ‘relevant consideration is effective

recommendation or control rather than final

authority.’ . . . [T]he NLRA does not preclude a charge

47

nurse from having supervisory status merely because her

recommendation is subject to a superior’s investigation.”

(citations omitted) (describing Glenmark)); and

(2) whether the employees exercise their supervisory

authority only a few times (or even just one time), see

Prime Energy Ltd. P’ship, 224 F.3d at 210.

In the case before us, the Board relied on a four-

part test that conflicts with the above principles. The

Board derived its test from an NLRB opinion (later

vacated) to determine whether the nurses here were

statutory supervisors: “To prevail, the Employer must

prove that: (a) LPNs submit actual recommendations, and

not merely anecdotal reports, (b) their recommendations

are followed on a regular basis, (c) the triggering

disciplinary incidents are not independently investigated

by superiors, and (d) the recommendations result from

the LPNs’ own independent judgment.” JA873 (citing

ITT Lighting Fixtures, 265 N.L.R.B. 1480, 1481 (1982),

vacated on other grounds sub nom. ITT Lighting

Fixtures, Div. of ITT Corp. v. NLRB, 712 F.2d 40 (2d Cir.

1983)).12

12

In its brief in this case, the Board argues a rationale

more consistent with Attleboro and other circuits’

caselaw. But the Board should have considered

Attleboro and other cases when it made its original

48

ruling—not after filing a petition for enforcement. See

Borovsky v. Holder, 612 F.3d 917, 921 (“The Chenery

doctrine prevents a court from affirming an agency’s

inadequately justified decision ‘by substituting what it

considers to be a more adequate or proper basis’ for the

decision.” (quoting SEC v. Chenery Corp., 332 U.S. 194,

196 (1947))); NLRB v. P*I*E Nationwide, Inc., 923 F.2d

506, 518 (7th Cir. 1991) (“The Board’s appellate counsel

cannot fill in the holes in the agency’s decision; stated in

another manner, it is the Board’s order, not its petition

for enforcement, that is the subject of our review.

Accordingly, we may not accept appellate counsel’s post

hoc rationalizations for agency action.” (citations and

internal quotation marks omitted)); Henry J. Friendly,

Chenery Revisited: Reflections on Reversal and Remand

of Administrative Orders, 1969 Duke L.J. 199, 222

(“Where the agency has rested [a] decision on an

unsustainable reason, the court should generally reverse

and remand even though it discerns a possibility, even a

strong one, that by another course of reasoning the

agency might come to the same result.”).

For the same reason, the Dissent’s reliance on Mars

Home for Youth v. NLRB, 666 F.3d 850 (3d Cir. 2011), is

unavailing. The dissent’s focus on the same conclusion

being reached by our court in Mars Home and by the

NLRB in this case is irrelevant to the question as to

whether the NLRB offered correct reasoning. The NLRB

49

Under controlling law, remand is appropriate

where, as here, the Board used the wrong legal standard

and remand would not be futile. See, e.g., MCPc, 813

F.3d at 482 (“[W]e will remand for further proceedings

because the Board failed to apply the correct legal

test . . . .”); id. at 490 (“[W]hether or not we agreed that

substantial evidence in the record supported the Board’s

did not. The NLRB did not rely on Mars Home or any

post-Attleboro case in its explanation for what effectively

recommending discipline meant. Instead, it relied on

pre-Attleboro reasoning that we held was unreasonable in

Attleboro. Just as the NLRB cannot rely on post hoc

reasoning, the Dissent cannot now use Mars Home to fill

in the hole in the NLRB’s decision. See ICC v. Bhd. of

Locomotive Eng’rs, 472 U.S. 270, 283 (1987) (“[A]

court . . . may not affirm on a basis containing any

element of discretion—including discretion to . . .

interpret statutory ambiguities—that is not the basis the

agency used, since that would remove the discretionary

judgment from the agency to the court.”). We agree that

it may be inefficient to make the NLRB interpret the

statute anew even though it may ultimately reach the

same result, but that is a function of Chenery, which we

must apply. Cf. Margaret B. Kwoka, Deference,

Chenery, and FOIA, 73 Md. L. Rev. 1060, 1109–10

(2014) (“[C]ritics argue that the Chenery principle leads

to inefficient proceedings . . . .”).

50

ultimate disposition, our disagreement with [the] Board’s

rationale would prevent us from affirming.”); NLRB v.

Alan Motor Lines Inc., 937 F.2d 887, 892 (3d Cir. 1991)

(“If we sustained the Board’s decision based on a

rationale that the Board might have adopted but did not

adopt, we would ‘deprecate the administrative process

for [we] would propel the court into the domain which

Congress has set aside exclusively for the administrative

agency.’” (quoting NLRB v. Met. Life Ins. Co., 380 U.S.

438, 444 (1965))). By relying on a vacated NLRB

precedent requiring the nurses’ recommendations be

implemented without any independent investigation and

relying heavily on the fact that the LPNs did not

frequently exercise their alleged supervisory power, the

Board applied the wrong legal standard.

Nor would a remand be futile. Neither side has

shown it is entitled to victory on the present record. On

the one hand, the Board’s findings are almost entirely

inapt because they are directed to the wrong test. On the

other hand, New Vista’s entitlement to victory is unclear.

The Board has failed to show it is entitled to

enforcement because Director Lightner’s findings

addressed to the wrong test are largely inapplicable to the

correct test. See SEC v. Chenery Corp., 318 U.S. 80, 94

(1943) (“The Commission’s action cannot be upheld

merely because findings might have been made and

considerations disclosed which would justify its order as

51

an appropriate safeguard for the interests protected by the

Act. There must be such a responsible finding.”); cf.

NLRB v. Local 483, Int’l Ass’n of Bridge, Structural &

Ornamental Ironworkers, 672 F.2d 1159, 1165 (3d Cir.

1982) (“If such findings are supported by substantial

evidence on the record as a whole, the Board’s remedial

order would be enforceable by this court. Such findings

have not been made by the Board here.”).

For instance, Director Lightner’s findings go to

whether the LPNs’ written notices were independently

investigated, whether LPNs ultimately decided the level

of discipline, or whether LPNs frequently exercised

authority to effectively recommend discipline. 13 As

13

Among those findings are:

- “[D]iscipline issued to a CNA is investigated by unit

managers or upper management.” JA0861.

- “The LPN becomes involved only as a fact witness to

the underlying incident. . . . LPNs are simply reporting

factual findings to their superiors without any specific

recommendation for disciplinary action.” JA0861, 0873.

- “LPNs rarely if ever checkmark the penalty level of

discipline because they do not have access to employees’

personnel files and do not know where the employee

stands in the progressive disciplinary scheme.” JA0861.

52

such, they are irrelevant. Indeed, some findings suggest

that the nurses may be supervisors under Attleboro. See,

e.g., JA0856 (“If a nurse believes that a CNA has

violated the Employer’s work rules, the nurse has the

discretion to (1) do nothing; (2) verbally counsel the

employee without issuing any write-up; or (3) report

misconduct to either the nursing supervisor or unit

manager.” (emphasis added)). Because the factual

findings do not support the necessary legal analysis, we

lack the basis to enforce the Board’s decision.

- LPNs are not told “the outcome of a disciplinary

matter” and do not attend meetings where the “discipline

is served.” JA0861–62.

- “The DON or other upper management officials make

all final disciplinary decisions.” JA0862.

- “The record shows LPN involvement in actual

progressive discipline of CNAs 33 times over a 6 ½ year

period. . . . Even assuming arguendo that the actions of

the LPNs cited by the Employer constituted discipline or

the effective recommendation of discipline, the record

still yields a minor number of instances over a six-year

period in which these actions were exercised. . . . I am

reluctant to extinguish Section 7 rights here on such a

slender record of disciplines over a six year stretch.”

JA0871, 0876.

53

On the other hand, the record does not permit us to

conclude that New Vista has proven the nurses are

statutory supervisors. See Ky. River, 532 U.S. at 712 (“In

the unfair labor practice proceeding, therefore, the burden

remains on the employer to establish the excepted status

of these nurses.”). For instance, it may well be that the

notices issued by nurses do not become permanent parts

of the CNAs’ files and are not used to increase the

severity of the discipline. Indeed, the paucity of

disciplinary forms presented suggests that they are not

kept in employees’ files. Additionally, we are not

unmindful of other circuits’ “reportorial” cases holding

that where nurses merely report factual information

without actually recommending discipline, the employer

fails to show that the nurses have the authority to

recommend discipline. See, e.g., Schnurmacher Nursing

Home, 214 F.3d at 265–66 (“In actual practice, the CNs

appear not to have formally disciplined CNAs or even to

have recommended discipline, albeit, the CNs did, from

time to time, refer CNA misconduct to a nurse manager

but without recommendation.”). Yet, any finding that the

nurses here were merely “reportorial” must be reconciled

with the demands of Attleboro. See Attleboro, 176 F.3d

at 159 (noting that the Board’s “regional Director

concluded that the LPN charge nurses merely were

serving in a ‘reportorial’ and not supervisory

54

capacity”). 14 While the Board’s finding that the LPNs

had discretion in how they handled misbehaving CNAs, a

14

The Board did not request deference to their reading of

the statute under Chevron, U.S.A., Inc. v. Nat’l Res. Def.

Council, Inc., 467 U.S. 837 (1984), or Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967 (2005), as they did in Palmetto Prince George

Operating, LLC v. NLRB, 841 F.3d 211, 216–17 (4th Cir.

2016) (deferring to the Board’s interpretation of the

NLRA under Chevron and Brand X to hold that nurses

were not supervisors). Had they done so, it would not

have availed them here.

Unlike in Palmetto Prince George, the Board has not

pointed to a new interpretation after the relevant

controlling precedent. See Palmetto Prince George, 841

F.3d at 215–16 (relying on a 2006 NLRB interpretation

instead of its 1998 precedent); see also Levy v. Sterling

Holding Co., LLC, 544 F.3d 493, 502 (3d Cir. 2008)

(“[T]he Supreme Court left no doubt that if a court of

appeals interprets an ambiguous statute one way, and the

agency charged with administering that statute

subsequently interprets it another way, even that same

court of appeals may not then ignore the agency’s more-

recent interpretation.” (emphasis added)). Here, the

Board relies on an interpretation that we already held was

an unreasonable interpretation of the statute in Attleboro.

NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154 (3d Cir.

55

1999) (“[W]e see no need to reduce the deference that we

normally afford the Board, as we find the Board’s

interpretation of ‘independent judgment’ inconsistent

with the NLRA under the traditional deferential standard

of review . . . .” (citing NLRB v. Health Care & Ret.

Corp. of Am., 511 U.S. 571, 576 (1994)). Chevron or

Brand X deference would not allow us to adopt an

unreasonable interpretation. See Brand X, 545 U.S. at

980 (“In Chevron, this Court held that ambiguities in

statutes within an agency’s jurisdiction to administer are

delegations of authority to the agency to fill the statutory

gap in reasonable fashion.”).

This case is also unlike Mars Home for Youth, on which

the dissent heavily relies. The Mars Home Regional

Director’s opinion is in marked contrast to the one in this

case. See Mars Home for Youth, Case No. 6-RC-12692

(Dec. 3, 2009) (regional director’s decision), available at

http://apps.nlrb.gov/link/document.aspx/09031d45802a3

b2c. In Mars Home, the regional director set forth

detailed analysis based on a series of post-Attleboro

cases, primarily Berthold Nursing Care Ctr., Inc., 351

N.L.R.B. 27 (2007), cited as Oak Park. Because reliance

on Oak Park is actually a new interpretation, the NLRB

would have been entitled to Brand X deference in that

case. We further note (a) that Petitioner Mars Home for

Youth did not cite Attleboro and therefore the case was

not before the court, and (2) Mars Home for Youth did

56

remand would not be futile because the Board could find,

for instance, that the LPNs do not “initiate a progressive

disciplinary process.” Attleboro, 176 F.3d at 165.

We must remand.

CONCLUSION

For the reasons stated above, we will vacate the

Board’s August 26, 2011 order and remand for the Board to

apply the correct legal test on the merits issue.

not analyze the definition of “effectively to recommend”

“discipline,” 29 U.S.C. § 152(3), the key issue here.

57

GREENAWAY, JR., concurring in part and dissenting in part.

This case turns on the National Labor Relations Act’s

(“NLRA”) definition of a “supervisor.” To qualify as a

supervisor, an employee must have the authority to exercise

independent judgment in the performance of a supervisory

function in the interest of the employer. NLRB v. Health Care

& Ret. Corp. of Am., 511 U.S. 571, 573–74 (1994). This case

concerns our interpretation of independent judgment generally

and specifically in the context of recommending discipline.

In Mars Home for Youth v. NLRB, 666 F.3d 850 (3d Cir.

2011), we approved of the general and specific interpretations

of independent judgment at issue here. With only passing

reference to Mars Home, the Majority rejects the general and

specific interpretations of independent judgment before us.

Instead of relying on Mars Home, the Majority rests its

decision on NLRB v. Attleboro Associates, Ltd., 176 F.3d 154

(3d Cir. 1999), and concludes, in a final footnote, that

Attleboro prevents us from coming to the very conclusion that

our brothers subsequently came to in Mars Home.

This argument lacks merit for two reasons. First, it

misreads Attleboro by erroneously concluding that it rejected

the general and context specific interpretations of independent

judgment at issue here. Second, it applies the incorrect

standard of deferential review to the administrative decision.

Because the Majority’s opinion misconstrues Mars Home,

misreads Attleboro, and applies the wrong standard of review,

I respectfully dissent. 1

1

I concur with Sections I, II, and III.

1

I.

In addressing New Vista’s challenge to this NLRB

decision, we must apply the familiar two-step analysis of

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). See, e.g., Edward J. DeBartolo

Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council,

485 U.S. 568, 574 (1988) (“[S]tatutory interpretation by the

[National Labor Relations] Board would normally be entitled

to deference unless that construction were clearly contrary to

the intent of Congress.” (citing Chevron, 467 U.S. 837 at 842–

43, and n. 9)). “If Congress has directly and clearly spoken to

the precise question at issue, our Chevron analysis is complete

at Step One, and Congress’s unambiguously expressed intent

controls.” Helen Mining Co. v. Elliott, 859 F.3d 226, 234 (3d

Cir. 2017).

“[I]f the statute is silent or ambiguous with respect to

the specific issue,” we move to the second step of the inquiry

and determine whether Congress expressly or implicitly

delegated authority. Chevron, 467 U.S. at 842–43. “If

Congress has explicitly left a gap for the agency to fill,” “[s]uch

legislative regulations are given controlling weight unless they

are arbitrary, capricious, or manifestly contrary to the statute.”

Id. at 843–44. If “the legislative delegation to an agency on a

particular question is implicit rather than explicit,” “a court

may not substitute its own construction of a statutory provision

for a reasonable interpretation made by the administrator of an

agency.” Id. at 844.

We follow these steps even if we have already

interpreted the statute unless our earlier decision decided the

case on the first step. Indeed, in National Cable &

Telecommunications Association v. Brand X Internet Services,

2

the Supreme Court held that “[a] court’s prior judicial

construction of a statute trumps an agency construction

otherwise entitled to Chevron deference only if the prior court

decision holds that its construction follows from the

unambiguous terms of the statute and thus leaves no room for

agency discretion.” 545 U.S. 967, 982 (2005). 2

II.

We must decide this case under Chevron’s most

deferential standard of review. This case hinges on the

NLRA’s definition of a supervisor. That statutory text

provides as follows:

The term “supervisor” means any individual

having authority, in the interest of the employer,

to . . . discipline other employees . . . 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.

2

See also Levy v. Sterling Holding Co., LLC, 544 F.3d 493,

502 (3d Cir. 2008) (“[T]he Supreme Court left no doubt that if

a court of appeals interprets an ambiguous statute one way, and

the agency charged with administering that statute

subsequently interprets it another way, even that same court of

appeals may not then ignore the agency’s more-recent

interpretation.”).

3

29 U.S.C. § 152(11). To determine whether an employee

qualifies as a supervisor, we must answer three questions:

“First, does the employee have authority to engage in 1 of the

12 listed activities? Second, does the exercise of that authority

require the use of independent judgment? Third, does the

employee hold the authority in the interest of the employer?”

Health Care & Ret. Corp. of Am., 511 U.S. at 573–74 (internal

quotation marks omitted). Answering affirmatively to each

and every question makes an employee a supervisor. This case

relates to the independent judgment prong of the inquiry.

Following the steps established by the Supreme Court

in Chevron, we must first ask, has Congress “directly and

clearly spoken to the precise question at issue[?]” Helen

Mining Co., 859 F.3d at 234. The Supreme Court has held that

Congress has not spoken clearly on the definition of

independent judgment. In NLRB v. Kentucky River Community

Care, Inc., the Supreme Court found that “it is certainly true

that the statutory term ‘independent judgment’ is ambiguous

with respect to the degree of discretion required for

supervisory status” and that “[i]t falls clearly within the

Board’s discretion to determine, within reason, what scope of

discretion qualifies.” 532 U.S. 706, 713 (2001) (emphasis in

original).

Because “the statute is silent or ambiguous with respect

to the specific issue,” we move to the second step of the inquiry

and determine whether Congress expressly or implicitly

delegated authority. Chevron, 467 U.S. at 842–43. The

Supreme Court has held that Congress expressly delegated the

NLRA’s interpretation to the NLRB. In ABF Freight System,

Inc. v. NLRB, the Supreme Court noted that because the

NLRB’s interpretation of the NLRA “involves that kind of

express delegation, the Board’s views merit the greatest

4

deference.” 510 U.S. 317, 324 (1994) (emphasis added). As a

result, “[S]tatutory interpretation by the Board would normally

be entitled to deference unless that construction were clearly

contrary to the intent of Congress.” Edward J. DeBartolo

Corp., 485 U.S. at 574 (citing Chevron, 467 U.S. 837 at 842–

43, and n. 9). Cf. Kentucky River Cmty. Care, Inc., 532 U.S. at

715 (refusing to defer to an NLRB interpretation that was

“directly contrary to the text of the statute” (emphasis added)).

A.

In light of this framework, we must defer to the NLRB’s

interpretation of independent judgment because it is not

“arbitrary, capricious, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 843–44.

In this case, the Regional Director followed a four step

process. First, the Regional Director provided the following

definition of a statutory supervisor:

Individuals are “statutory supervisors if: (1) they

hold the authority to engage in any one 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.”

App. 863 (Kentucky River Cmty. Care, Inc., 532 U.S. at 713).

Second, the Regional Director determined whether the

individuals had the authority to engage in supervisory

functions, such as assigning work, responsibly directing,

5

disciplining, effectively recommending discipline, and

removing other employees from the floor.

Third, the Regional Director, relying on Oakwood

Healthcare, Inc., 348 N.L.R.B. 686 (2006), defined

independent judgment: “The Board found that the relevant test

for supervisory status utilizing independent judgment is that

‘an individual must at minimum act, or effectively recommend

action, free of the control of others and form an opinion or

evaluation by discerning and comparing data.’” App. 866

(quoting Oakwood Healthcare, 348 N.L.R.B at 693).

Fourth, the Regional Director found, in light of

Oakwood Healthcare, that the LPNs did not exercise

independent judgment in performing supervisory functions.

With regard to effectively recommending discipline, the

Regional Director provided the following test: “To prevail, the

Employer must prove that: (a) LPNs submit actual

recommendations, and not merely anecdotal reports, (b) their

recommendations are followed on a regular basis, (c) the

triggering disciplinary incidents are not independently

investigated by superiors, and (d) the recommendations result

from the LPNs’ own independent judgment.” App. 873.

The Regional Director denied the employer’s claims on

the third prong of this test. Specifically, he concluded that the

employer had not shown that LPNs used independent judgment

in performing this supervisory function because the employer

did not prove that the purported supervisors’ managers

followed their discipline recommendations without

independently investigating them. App. 874 (“[T]he record is

silent as to whether Roldan’s superiors conducted an

independent investigation of her claims . . . .”); id. at 874 (“No

written documentary evidence regarding this [termination

6

recommendation] is part of the record.”). He further noted that

some of the employer’s own witnesses undermined the

employer’s claims and one of the LPNs’ managers “testified

that when she receives a discipline form from an LPN, she will

ask for statements from the reporting nurse, the offending aide

and any eyewitnesses.” Id. at 873. See also id. (explaining that

another LPN manager independently investigated a discipline

recommendation made by an LPN).

B.

In Mars Home, we approved of the three contested

elements of the decision at bar. 3 First, we observed that

“[t]here is a three-part test for determining supervisory status”

and quoted the same test as the Regional Director did in the

decision under review. Id. at 853–54 (quoting Kentucky River

Cmty. Care, Inc., 532 U.S. at 713).

Second, we, like the Regional Director in the case

before us, adopted Oakwood Healthcare’s general

interpretation of independent judgment and held, “A

supervisor exercises independent judgment when he acts or

recommends action ‘free of the control of others and form[s]

an opinion or evaluation by discerning and comparing data.’”

3

The Majority observes that the Petitioner in “Mars Home for

Youth did not cite Attleboro . . . .” Maj. Op. at 57 n. 14. This

comes as little surprise. As explained in this and the following

sections, the NLRB decision reviewed by Attleboro lies in

stark contrast to the one before us in Mars Home and the

analogue we judge today.

7

Id. at 853–54 (quoting Oakwood Healthcare, 348 N.L.R.B. at

692–93).

Third, we “considered Mars Home’s remaining”

challenges to the Regional Director’s decision and “f[ou]nd

them without merit.” Id. at 855. This final determination

matters because the employer specifically objected to the

Regional Director’s conclusions about the employees’

authority to use their independent judgment in effectively

recommending discipline, Petitioner’s Br. at 51–60, Mars

Home for Youth v. NLRB, Nos. 11–1250, 11–1590, 666 F.3d

850 (3d Cir. 2011), and because the Regional Director’s

decision on recommending discipline closely paralleled the

decision at bar. 4

Indeed, the Regional Director in Mars Home provided

the following test for deciding whether an employee exercised

independent judgment in effectively recommending discipline:

In summary, a putative supervisor’s preparation

of written counseling forms, write-ups or reports

does not establish Section 2(11) authority, even

if such documentation is part of a progressive

disciplinary process, in the absence of evidence

4

The Majority claims that “Mars Home for Youth did not

analyze the definition of ‘effectively to recommend’

‘discipline,’ 29 U.S.C. § 152(3) . . . .” Maj. Op. at 57 n. 14.

Perplexingly, it does not explain how we could “consider[]

Mars Home’s remaining claims,” including its challenge to the

Board’s decision about effectively recommending discipline,

and “find [those claims] without merit,” Mars Home, 666 F.3d

at 855, without analyzing them.

8

that 1) the putative supervisor has the discretion

to decide whether to document the infractions

(independent judgement [sic]); 2) the document

is an “integral part of the [e]mployer’s

progressive system in that they are used to

document each phase of the disciplinary process

and routinely result in actual discipline”

(imposition of discipline); and 3) the

documentation is accepted by higher

management without independent investigation.

Regional Director’s Decision and Direction of Election at 29–

30, Mars Home for Youth v. NLRB, Nos. 11–1250, 11–1590,

666 F.3d 850 (3d Cir. 2011) (“Mars Home Regional Director

Decision”).

This test mirrors the test used by the Regional Director

in the decision under review. Compare Mars Home Regional

Director Decision at 29 (“1) the putative supervisor has the

discretion to decide whether to document the infractions

(independent judgement [sic])”) with App. 837 (“(d) the

recommendations result from the LPNs’ own independent

judgment.”); compare Mars Home Regional Director Decision

at 29–30 ( 2) the disciplinary reports “routinely result in actual

discipline”) with App. 837 (“(b) their recommendations are

followed on a regular basis”); compare Mars Home Regional

Director Decision at 30 (“3) the documentation is accepted by

higher management without independent investigation”) with

App. 837 (“(c) the triggering disciplinary incidents are not

independently investigated by superiors”).

Like the Regional Director in the case at bar, the

Regional Director in Mars Home applied this test by finding

that two employees did not qualify as supervisors because their

9

supervisors independently investigated their recommendations

for discipline. For one, the Regional Director concluded that

“Employer has failed to sustain its burden of proof by a

preponderance of the evidence that [alleged supervisor]

effectively recommended the termination of [an employee]

within the meaning of Section 2(11) of the Act” because

“[a]fter [the alleged supervisor’s] report was received by [the

alleged supervisor’s manager], both [the alleged supervisor’s

manager] and [another manager] set up a time to talk by

telephone with [the employee] about the matter in order to

investigate the matter further.” Mars Home Regional Director

Decision at 34. For the other alleged supervisor, the Regional

Director came to the same conclusion because “the record is

clear that the Employer has failed to sustain its burden of proof

that the sexual harassment incident evinces Section 2(11)

authority by the [alleged supervisor] to effectively recommend

discipline and/or discharge” because “management officials

made an independent investigation before reaching its

termination decision.” Id. at 35.

Thus, we have approved of the NLRB’s current

interpretation of independent judgment both in general and in

the context of recommending discipline. As a result, these

interpretations are not “arbitrary, capricious, or manifestly

contrary to the statute.” Chevron, 467 U.S. at 843–44. The

law requires me to defer to these NLRB interpretations and

dismiss New Vista’s challenge. 5

5

Reilly v. City of Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017)

(“In our Court ‘the holding of a panel in a precedential opinion

is binding on subsequent panels. Thus, no subsequent panel

overrules the holding in a precedential opinion of a previous

panel. Court en banc consideration is required to do so.’”

10

III.

The Majority takes a different approach. It does not rely

upon Mars Home. Instead, the Majority holds that the

Regional Director’s decision is “squarely at odds with our

controlling precedent—specifically NLRB v. Attleboro

Associates, Ltd., 176 F.3d 154 (3d Cir. 1999),” and “remand[s]

this case to the Board to allow it to determine whether the LPNs

have the authority to effectively recommend discipline under

Attleboro.” Maj. Op. at 5. See also Id. at 47–48 (explaining

Attleboro’s interpretation of supervisor in the context of

recommending discipline).

In its ultimate footnote, the Majority cites Chevron and

attempts to shoehorn its decision into this framework by

writing that “the Board relies on an interpretation that we

already held was an unreasonable interpretation of the statute

in Attleboro” and that “Chevron or Brand X deference would

not allow us to adopt an unreasonable interpretation.” Maj. Op.

at 57 n. 14. 6 This attempt fails.

(quoting Policy of Avoiding Intra-circuit Conflict of Precedent,

Internal Operating Procedures of the Third Circuit Court of

Appeals § 9.1)).

6

In this footnote, the majority implies, in dicta, that the Board

waived a deference based argument. The briefing does not

support this assertion. New Vista conceded that “[t]he

NLRB’s legal determinations are subject to plenary review, but

with due deference to the NLRB’s expertise in labor matters

[and] [t]he Court upholds the NLRB’s interpretations of the

NLRA if they are reasonable and consistent with the NLRA.”

Petitioner’s Br. at 53–54. The NLRB agreed with New Vista’s

11

A.

The Majority misreads Attleboro. The Majority holds

that “the Board relies on an interpretation that we already held

was an unreasonable interpretation of the statute in Attleboro.”

Maj. Op. at 57 n. 14. The Majority does not distinguish

between the general and context specific interpretations of

independent judgment or explain which interpretation

Attleboro held was unreasonable. To prove that Attleboro did

not regard any of these interpretations as unreasonable, I

analyze each of them in turn.

Attleboro did not reject the Regional Director’s general

interpretation of independent judgment. It refused to defer to

the NLRB’s “conclu[sion] that the ‘discharge of duties

involving professional judgment and discretion may

nonetheless be “routine” within the meaning of Section 2(11)’

and not the exercise of ‘independent judgment.’” Attleboro,

176 F.3d at 170. Here, the Regional Director “found that the

relevant test for supervisory status utilizing independent

judgment is that ‘an individual must at minimum act, or

effectively recommend action, free of the control of others and

form an opinion or evaluation by discerning and comparing

data.’” App. 866 (citing Oakwood Healthcare, 348 N.L.R.B at

693). This interpretation springs from Oakwood Healthcare,

concession, noting, “Whether an individual is a statutory

supervisor is a question of fact particularly suited to the

Board’s expertise and therefore subject to limited judicial

review.” Respondent’s Br. at 18. Even if the parties did not

raise it, this question constitutes an antecedent legal question

that we must decide. See Haybarger v. Lawrence Cty. Adult

Probation & Parole, 667 F.3d 408, 412–13 (3d Cir. 2012).

12

348 N.L.R.B. at 692–93, a decision issued seven years after

Attleboro. As a result, Attleboro did not find that the NLRB’s

general interpretation of independent judgment was

unreasonable.

Furthermore, Attleboro did not hold that the particular

context specific interpretation of independent judgment at

issue here was unreasonable. Attleboro’s decision on

effectively recommending discipline consists of three parts.

None of these parts support the Majority’s position.

First, we noted that the Regional Director found that an

LPN could not exercise independent judgment “because the

Director of Nurses reviewed the recommendations and

sometimes would investigate an incident before acting upon a

recommendation . . . .” Attleboro, 176 F.3d at 164 (emphasis

added). Then, “We h[e]ld this application of the term

‘independent judgment’ to the facts of this case erroneous as a

matter of law.” Id. (emphasis added).

This holding does not substantiate the Majority’s

position. Unlike in Attleboro, we now review a Regional

Director decision that omitted “sometimes” and stated the rule

in more absolute terms: “To prevail, the Employer must prove

that . . . the triggering disciplinary incidents are not

independently investigated by superiors . . . .” App. 873. In

applying this rule, the Regional Director could not find a single

example of when the employer accepted a discipline

recommendation without investigating it. Id. at 873–74. As a

result, the Regional Director found that the LPNs could not

have exercised independent judgment because the employer

always—not sometimes—investigated the recommendation

before accepting it. Because the context specific interpretation

of independent judgment here differs from the one rejected by

13

Attleboro, Attleboro could not have dismissed—let alone

considered—the context specific interpretation of independent

judgment at issue here.

Second, Attleboro “h[e]ld that because Attleboro’s LPN

charge nurses . . . initiate a progressive disciplinary process that

becomes part of a CNA’s permanent personnel file and could

lead to her termination, the charge nurses effectively

recommend discipline using independent judgment within the

meaning of section 2(11).” Attleboro, 176 F.3d at 165.

This interpretation does not foreclose all other

interpretations. “[T]he statutory term ‘independent judgment’

is ambiguous with respect to the degree of discretion required

for supervisory status” and “[i]t falls clearly within the Board’s

discretion to determine, within reason, what scope of discretion

qualifies.” Kentucky River Cmty. Care, Inc., 532 U.S. at 713

(emphasis in original). We have previously held that

“Congress has not spoken on the ‘precise question’ before us”

when a statutory term “is susceptible to multiple

interpretations, and the statutory language does not directly

address” the issue presented. Egan v. Del. River Port Auth.,

851 F.3d 263, 270 (3d Cir. 2017). 7 Because independent

judgment is an ambiguous term and because ambiguous terms

are susceptible to multiple meanings, independent judgment is

susceptible to multiple meanings. As a result, our previous

7

See also Chevron, 467 U.S. at 865 n. 11 (“The court need not

conclude that the agency construction was the only one it

permissibly could have adopted to uphold the construction, or

even the reading the court would have reached if the question

initially had arisen in a judicial proceeding.”).

14

interpretation of “independent judgment” does not prohibit all

other interpretations.

Third, in Attleboro we provided a detailed synopsis of

Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 342 (4th

Cir. 1998), noted that “[t]he situation at Attleboro is a hybrid

of those of the nursing homes in Glenmark,” Attleboro, 176

F.3d at 165, and observed that “the court recognized that the

NLRA does not preclude a charge nurse from having

supervisory status merely because her recommendation is

subject to a superior’s investigation.” Id. at 164.

This summary of Glenmark does not make the

interpretation at issue here unreasonable. Importantly,

Attleboro’s summary of Glenmark is dicta. If language “was

not necessary to our holding,” it “was therefore dicta.” IMO

Indus., Inc. v. Kiekert AG, 155 F.3d 254, 261 n. 4 (3d Cir.

1998). This language was not necessary to our holding in

Attleboro. In Attleboro, we rejected a decision that found that

an LPN did not qualify as a supervisor because her

recommendation was sometimes subject to the employer’s

investigation. 176 F.3d at 164. Glenmark, according to our

summary, rejected a decision that found that an LPN did not

qualify as a supervisor because her recommendation was

always subject to the employer’s investigation. Id. Holding

that one investigation of a recommendation may not prevent

someone from qualifying as a supervisor would not stop a

future court from holding that two instances of investigating

recommendations prohibited someone from being a

supervisor. As a result, the Glenmark observation was not

necessary to our holding in Attleboro.

Even if it were not dicta, I would be reluctant to follow

it. Indeed, the Fourth Circuit has regarded Glenmark as no

15

longer binding. Palmetto Prince George Operating, LLC v.

NLRB, 841 F.3d 211 (4th Cir. 2016). In that case, an employer

refused to bargain collectively with LPNs on the theory that the

LPNs qualified as supervisors. Id. at 214. In front of the

NLRB’s Regional Director and then before the Fourth Circuit,

the employer “maintain[ed], however, that our analysis of

‘independent judgment’ in cases involving nurses issued prior

to Kentucky River and Oakwood is in all respects ‘consistent’

with those cases, and so governs the case at hand.” Id. at 216.

The Fourth Circuit acknowledged that before Oakwood

Healthcare, the NLRB had interpreted independent judgment

to exclude “ordinary professional or technical judgment in

directing less-skilled employees to deliver services,” and that

the Fourth Circuit had rejected that interpretation as

unreasonable. Id. The Fourth Circuit cited Glenmark, the

inspiration for Attleboro, as an example of a case that rejected

the NLRB’s pre-Oakwood Healthcare interpretation and

summarized it as “holding that nurses were supervisors given

their authority to schedule and discipline nursing assistants

without management approval . . . .” Id. It rejected this

argument, the very argument that the Majority makes here, in

three steps.

First, it observed that “[i]t is settled law that an agency

construction entitled to deference supersedes a prior judicial

construction of an ambiguous statute.” Id. (citing Brand X

Internet Servs., 545 U.S. at 982). Second, it noted that

Oakwood Healthcare’s interpretation of the statute deserved

deference because the statute was ambiguous and the

interpretation was reasonable. Id. Third, it concluded, based

on Kentucky River and Oakwood Healthcare—not

Glenmark—that the employer “simply has not shown that the

Nurses must use any independent judgment when performing

16

these functions.” Id. at 217. Specifically, it held that “[t]he

record before us indicates that [the employer] has given its

Nurses only the disciplinary power provided to every other

employee (including CNAs themselves): the power to report

rule violations to the Managers.” Id. at 218. As a result,

Palmetto eviscerated Glenmark’s power in this context.

B.

Even if the Majority’s reading of Attleboro were

correct, I could not join the Majority because it misapplies

Chevron here. At its second step, Chevron asks us to determine

whether “Congress has explicitly left a gap for the agency to

fill” or if “the legislative delegation to an agency on a particular

question is implicit . . . .” Chevron, 467 U.S. at 843–44. If

Congress explicitly left a gap to fill, “[s]uch legislative

regulations are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute.” Id.

at 843–44. On the other hand, if Congress implicitly left a gap

to fill, “a court may not substitute its own construction of a

statutory provision for a reasonable interpretation made by the

administrator of an agency.” Id. at 844.

Here, the Majority focuses on the interpretation’s

reasonableness—not its arbitrariness, capriciousness, or

manifestly contrariness—when it writes that “Chevron or

Brand X deference would not allow us to adopt an

unreasonable interpretation.” Maj. Op. at 57 n. 14. Thus, it

assumes that the less deferential implicit delegation standard

applies. It makes this assumption without addressing the

Supreme Court’s conclusions that the NLRB’s interpretations

of the NLRA “involves that kind of express delegation,” ABF

Freight System, Inc., 510 U.S. at 324 (emphasis added), and

that “statutory interpretation by the Board would normally be

17

entitled to deference unless that construction were clearly

contrary to the intent of Congress.” Edward J. DeBartolo

Corp., 485 U.S. at 574 (1988) (emphasis added).

IV.

A majority of New Vista’s LPNs voted to avail

themselves of protections created by Congress. The agency

responsible for providing those rights found that the LPNs

deserved them. In coming to this conclusion, the agency took

an approach that we had previously sanctioned in Mars Home.

However, the Majority casts away this agency’s decision with

passing reference to our previous precedential approval.

Instead of following this precedent, the Majority harkens back

to Attleboro and incorrectly claims that Attleboro rejected the

agency’s approach before us—an approach we are duty bound

to approve. Because Attleboro did not regard the decision at

bar as “manifestly contrary to the statute,” Chevron, 467 U.S.

at. 844, I cannot join the Majority’s opinion. I respectfully

dissent.

18