NLRB v. Aakash, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 22-70002

BOARD,

Petitioner, NLRB No. 32-

CA-282957

SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL

2015, OPINION

Intervenor,

v.

AAKASH, INC., DBA Park Central

Care and Rehabilitation Center,

Respondent.

AAKASH, INC., DBA Park Central No. 22-70008

Care and Rehabilitation Center,

Petitioner, NLRB No. 32-

CA-282957

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent.

2 NLRB V. AAKASH, INC.

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted December 7, 2022

San Francisco, California

Filed January 27, 2023

Before: Susan P. Graber, Evan J. Wallach, * and Paul J.

Watford, Circuit Judges.

Opinion by Judge Graber

SUMMARY **

National Labor Relations Board

The panel granted a petition for enforcement brought by

the National Labor Relations Board (“the Board”), and

denied a cross-petition for review of an order of the Board,

issued against Aakash, Inc., which held that Aakash violated

Sections 8(a)(5) and (1) of the National Labor Relations Act,

by refusing to recognize and bargain with Service

Employees International Union, Local 215.

Aakash argued that the Board’s General Counsel,

Jennifer Abruzzo, lacked authority to prosecute the unfair

*

The Honorable Evan J. Wallach, United States Circuit Judge for the

U.S. Court of Appeals for the Federal Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NLRB V. AAKASH, INC. 3

labor practice charge because the President could not remove

the Board’s previous General Counsel, Peter Robb, without

cause during the four-year term to which he had been

appointed, making his successor’s acts ultra vires and

void. The panel rejected Aakash’s contentions. The panel

held that the President may remove the Board’s General

Counsel at any time and for any reason. The panel held that

several canons of construction supported their

conclusion. Even if history mattered here, past

administrations have maintained that the General Counsel

was removable at will. Finally, neither of the established

two exceptions to the President’s plenary removal power

applied here. First, Congress can impose removal

restrictions on a group of principal officers serving as part of

a multimember body of experts who do not wield substantial

executive power, but that exception does not apply because

the General Counsel is a single officer with independent

functions. Second, Congress can remove restrictions on

inferior officers with limited duties and no policymaking or

administrative authority, but the exception does not apply

because the General Counsel exercised significant

administrative authority, and was not an inferior

officer. The panel noted that their decision was in accord

with the only other circuit precedent on this issue in Exela

Enter. Sols., Inc. v. NLRB, 32 F.4th 436, 443-44 (5th Cir.

2022).

Aakash contended that the certified bargaining unit was

inappropriate because the Registered Nurses (RNs) that it

included were statutory supervisors. The panel disagreed

with Aakash’s claims that the RNs were supervisors because

they held authority to assign, discipline, and responsibly

direct employees, and they exercised that authority using

independent judgment. First, Aakash failed to present

4 NLRB V. AAKASH, INC.

sufficient evidence to prove that the RNs assigned work

using independent judgment within the meaning of 29

U.S.C. § 152(11). The record suggested that they simply

paired nursing students to groups of patients using a

schedule created by the Director of Staff Development. Nor

did the RNs discipline employees. The power to issue verbal

reprimands or report to higher-ups did not suffice. Finally,

Aakash did not prove that the RNs responsibly directed other

employees using independent judgment.

The panel therefore concluded that General Counsel

Robb was lawfully removed, and the RNs were not statutory

supervisors under the National Labor Relations Act.

COUNSEL

Gail Ivens (argued), Gail Ivens Attorney at Law, Monterey,

California, for Defendant-Appellant.

Bram M. Alden (argued), Assistant United States Attorney,

Criminal Appeals Section Chief; Tracy L. Wilkison, United

States Attorney; Joseph D. Axelrad; Jeffrey M.

Chemerinsky, Department of Justice Office of the United

States Attorney, Los Angeles, California; Charles E. Fowler

Jr., Department of Justice United States Attorney’s Office,

Austin, Texas; Plaintiff-Appellee.

NLRB V. AAKASH, INC. 5

OPINION

GRABER, Circuit Judge:

The National Labor Relations Board (the Board)

petitions for enforcement of a final order issued against

Aakash, Inc. d/b/a Park Central Care and Rehabilitation

Center (Aakash). The Board ruled that Aakash had violated

Sections 8(a)(5) and (1) of the National Labor Relations Act

(the Act), 29 U.S.C. § 158(a)(5) and (1), by refusing to

recognize and bargain with Service Employees International

Union, Local 2015 (the Union). 1 Aakash cross-petitions,

admitting that it refused to bargain but asserting that we

should nonetheless vacate the Board’s order for two reasons.

First, Aakash argues that the Board’s General Counsel,

Jennifer Abruzzo, lacked authority to prosecute the unfair

labor practice charge because the President could not remove

the Board’s previous General Counsel, Peter Robb, without

cause during the four-year term to which he had been

appointed, making his successor’s acts ultra vires and void.

Second, Aakash contends that the certified bargaining unit is

inappropriate because the Registered Nurses (RNs) that it

includes are statutory supervisors. We reject both of

Aakash’s arguments and grant the Board’s petition for

enforcement of its order.

FACTUAL BACKGROUND

Aakash operates a skilled nursing facility in California,

providing round-the-clock care for both short-term

rehabilitation patients and long-term residents. The facility

has 99 beds. The senior management team includes the

1

The Union has intervened on behalf of the Board.

6 NLRB V. AAKASH, INC.

Administrator and a Director of Staff Development. The

Nursing Department’s management includes a Director of

Nursing, an Assistant Director of Nursing, and a supervisor

of Licensed Vocational Nurses (LVNs). About 90 nurses

work at the facility, including six RNs, 13 LVNs, and 60

nursing assistants.

The Director of Nursing and Assistant Director of

Nursing work standard daytime shifts, Monday through

Friday. The RNs and other nursing staff work in three shifts:

day, night, and overnight. The Director of Nursing sets the

work schedules for the RNs and LVNs, and the Director of

Staff Development sets the work schedule for the nursing

aides. At the start of each shift, an RN or an LVN fills out

an assignment sheet, pairing each scheduled nursing aide

with a group of patients.

Disciplinary action at the facility is rare. On one

occasion, an RN verbally warned a nursing assistant that

falling asleep on the job constituted misconduct. The RN

then wrote a note to the Director of Staff Development

explaining the misconduct that she had witnessed.

PROCEDURAL HISTORY

The dispute in this case arose when, in 2020, the union

representing Aakash’s nursing aides sought to add two

voting groups to its bargaining unit, one for the RNs and one

for the LVNs. Aakash challenged the RNs’ eligibility for

inclusion in the bargaining unit, asserting that the RNs are

statutory supervisors and thus ineligible for inclusion. The

Board’s Regional Director determined that Aakash did not

meet its burden of proving that the RNs are statutory

supervisors. The Regional Director then ordered a “self-

determination” election, which the Union won. The Board

NLRB V. AAKASH, INC. 7

denied Aakash’s request for review of the Regional

Director’s decision.

In March 2021, the Union requested that Aakash

recognize the new bargaining unit and agree to bargain with

it. When Aakash refused, the Union filed an unfair labor

practice charge. In October 2021, the Board’s General

Counsel issued a complaint against Aakash for its failure to

comply with § 8(a)(5) and (1) of the Act.

In January 2021, while the dispute between Aakash and

the Board was ongoing, President Biden took office and

immediately removed the Board’s then General Counsel,

Peter Robb. General Counsel Robb had originally assumed

office for a four-year term in November 2017. In February

2021, President Biden nominated Jennifer Abruzzo to

replace Robb. The Senate confirmed General Counsel

Abruzzo, and she assumed the role in July 2021.

In December 2021, the Board issued its decision, finding

that Aakash had refused to recognize and bargain with the

Union in violation of the Act. The Board also rejected

Aakash’s contention that General Counsel Abruzzo lacked

the authority to prosecute unfair labor practices because the

President had removed former General Counsel Robb

unlawfully.

DISCUSSION

A. The President May Remove the Board’s General

Counsel at Will.

Title 29 U.S.C. § 153(d) provides that the Board’s

General Counsel “shall be appointed by the President, by and

with the advice and consent of the Senate, for a term of four

years.” The statute contains no provision precluding

8 NLRB V. AAKASH, INC.

removal of the General Counsel or requiring cause for

removal.

Aakash argues that the existence of a term of office

implicitly carries with it a prohibition on removal without

cause during that term. The Supreme Court rejected that

argument 125 years ago in Parsons v. United States, 167 U.S.

324 (1897). There, the President appointed a United States

Attorney for the Northern District of Alabama to a four-year

term but removed him before that term ended. Id. at 327–

28. The Attorney argued that he was entitled to serve for the

entire four-year term to which he had been appointed. Id. at

327. The Court held that the President acted appropriately

in removing the Attorney before the end of his four-year

term because a statutory provision establishing a fixed four-

year term, without any additional limitation, does not affect

the President’s discretionary power of removal. Id. at 338–

39, 342–44; see also Shurtleff v. United States, 189 U.S. 311,

316 (1903) (The right of removal “does not exist by virtue

of the [statutory text], but it inheres in the right to appoint,

unless limited by constitution or statute. It requires plain

language to take it away.”). The Supreme Court has cited

Parsons for the proposition that fixed terms do not confer

removal protection. Myers v. United States, 272 U.S. 52,

142–43 (1926); see also Stanley v. Gonzales, 476 F.3d 653,

660 (9th Cir. 2007) (so holding with respect to “inferior

officers” such as a United States Trustee).

Contrary to Aakash’s contentions, Humphrey’s Executor

v. United States, 295 U.S. 602 (1935), and Wiener v. United

States, 357 U.S. 349 (1958), do not support its argument. In

Humphrey’s Executor, the Court held:

[T]he fixing of a definite term subject to

removal for cause, unless there be some

NLRB V. AAKASH, INC. 9

countervailing provision or circumstance

indicating the contrary, which here we are

unable to find, is enough to establish the

legislative intent that the term is not to be

curtailed in the absence of such cause.

295 U.S. at 623 (emphasis added). But the wording of the

fixed term of office in Humphrey’s Executor included an

express provision regarding for-cause removal. Id. at 620.

Here, the wording of the fixed term of office for the Board’s

General Counsel includes no removal restrictions. Thus,

Humphrey’s Executor is inapposite.

Aakash’s reliance on Wiener also is misplaced. There,

the Court inferred removal protections for members of the

War Claims Commission (the Commission), an adjudicative

body responsible for determining claims for compensation

arising out of injuries suffered in World War II. Wiener, 357

U.S. at 349–50. The Court held that Congress had created

the Commission to adjudicate claims “free from the control

or coercive influence” of the President or of the Congress

itself. Id. at 355 (citation omitted). For that reason, removal

protections were implied. Id. at 355–56. Wiener is

distinguishable because the General Counsel is not a

member of an adjudicative body. In Wiener, the Court

inferred removal restrictions because of the nature of the

Commission’s task: its responsibilities had an “intrinsic

judicial character.” Id. at 355. By contrast, Congress

explicitly granted all judicial or quasi-judicial functions to

the Board and gave the General Counsel investigative,

prosecutorial, and managerial responsibilities. 29 U.S.C.

§ 153(d); see NLRB v. United Food & Com. Workers

Union, Loc. 23, 484 U.S. 112, 124 (1987); Exela Enter.

Sols., Inc. v. NLRB, 32 F.4th 436, 443–44 (5th Cir. 2022).

10 NLRB V. AAKASH, INC.

In short, when Congress declared that the General

Counsel “shall be appointed . . . for a term of four years,” it

stipulated only the requirements of the initial appointment.

The President may not appoint a General Counsel for a one-

year probationary period or for ten years, for example, or

without the advice and consent of the Senate.

Contrary to Aakash’s arguments, several canons of

construction support our conclusion that the President may

remove the Board’s General Counsel at any time and for any

reason. Aakash contends that the provision pertaining to

Board Members and the provision pertaining to the General

Counsel, when read together, suggest that the General

Counsel may be removed for causes beyond those that can

justify removal of the Board Members. Section 153(a) states

that Board Members shall be appointed by the President,

with the advice and consent of the Senate, to a five-year

term. 29 U.S.C. § 153(a). Unlike the section pertaining to

the General Counsel, though, Section 153(a) provides that

Board Members “may be removed by the President, upon

notice and hearing, for neglect of duty or malfeasance in

office, but for no other cause.” Id. When Congress uses text

in one section of a statute but omits it from another section

of the same statute, we ordinarily presume that Congress

acted intentionally, and we give effect to the distinction.

Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021). Applying

that principle here, the statutory text shows that Congress

intended to constrain the President to specific reasons to

remove Board Members but placed no limit on the

President’s power of removal with respect to the General

NLRB V. AAKASH, INC. 11

Counsel. 2 Had Congress intended to limit the President’s

power to remove the General Counsel with a broadened

definition of cause, Congress would have added contrasting

wording in Section 153(d) concerning removal, such as the

General Counsel “may be removed by the President for

cause of any kind.” Instead, Section 153(d) is entirely silent

regarding cause for removal. 3

Another canon of construction comes into play as well.

If the mere statement of a term of office carried with it a

requirement for for-cause removal, as Aakash asserts, the

specification of cause in Section 153(a) would be

surplusage. We generally interpret a statute to avoid making

a part of it unnecessary. Corley v. United States, 556 U.S.

303, 314 (2009).

Moreover, Congress is presumed to “legislate[] against

the backdrop of existing law.” Parker Drilling Mgmt. Servs.,

Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (citation and

internal quotation marks omitted). That the President is

presumed to have unfettered discretion to remove an

executive officer is at this point settled law. See Myers, 272

U.S. at 119 (noting that “the grant of executive power to the

2

We need not and do not decide whether the limitation on removal of

Board Members is permissible. See Seila Law LLC v. CFPB, 140 S. Ct.

2183 (2020) (holding that for-cause removal restrictions on the

Consumer Financial Protection Bureau’s Director violated the separation

of powers); Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S.

477 (2010) (holding that dual-layer for-cause removal restrictions for

members of the Public Company Accounting Oversight Board were

unconstitutional).

3

Wiener, 357 U.S. at 350, is distinguishable on this ground, too. The

statute in question there was entirely silent, whereas here, Congress

created contrasting provisions in neighboring sections of the same

statute.

12 NLRB V. AAKASH, INC.

President . . . carr[ies] with it the power of removal”);

Shurtleff, 189 U.S. at 314–15 (recognizing that “the

President can, by virtue of his general power of appointment,

remove an officer”). Congress was aware of the Supreme

Court’s long line of precedent establishing the presumption

in favor of the President’s power of removal when it enacted

Section 153(d) without incorporating any constraint on that

power.

Aakash also relies on history, specifically, the fact that

the President’s removal of former General Counsel Robb is

the first formal removal of a General Counsel of the Board.

We question the relevance of that argument; the statute

either constrains the President’s discretion or it does not.

But even if we assume that history matters here, past

administrations have maintained that the General Counsel is

removable at will. See Memorandum from John Roberts,

Assoc. White House Counsel, to Fred Fielding, White House

Counsel (July 18, 1983), https://www.reaganlibrary.gov/pub

lic/digitallibrary/smof/counsel/roberts/box-033/40-485-690

8381-033-007-2017.pdf (memorandum written by current

Chief Justice John Roberts, then an attorney in the White

House Counsel’s Office, stating that the General Counsel of

the Board is removable at will, and noting that the

Eisenhower Administration took the same position in 1959);

96 Cong. Rec. App’x A7989 (1951) (extension of remarks

by Rep. Paul Shafer with excerpt of Robert N. Denham, And

So I Was Purged, THE SATURDAY EVENING POST, Dec. 30,

1950, which reported that former General Counsel Robert

Denham understood that he was “summarily fired” as

General Counsel of the Board and that “the President had

full authority to remove [him] at any time.”); Harry S.

Truman, The President’s News Conference of February 16,

1950, 1950 Pub. Papers 159, 163 (1950) (President Truman

NLRB V. AAKASH, INC. 13

noting, in response to a question as to whether he had the

power to fire General Counsel Denham, that “[i]f I have the

power to appoint, I have the power to dismiss, except if the

law provides that it can’t be done.”).

Finally, Aakash argues that, even if the statute does not

forbid dismissal without cause, during the General

Counsel’s four-year term, “the President has no

constitutional prerogative to remove” the General Counsel,

because the General Counsel “does not exercise substantial

executive power.” To be sure, the Court has established two

exceptions to the President’s plenary removal power, but

neither applies here.

First, Congress can impose removal restrictions on a

group of principal officers serving as part of a multimember

body of experts who do not wield substantial executive

power. Seila Law, 140 S. Ct. at 2199–2200. That exception

does not apply because the General Counsel is a single

officer with independent executive functions.

Second, Congress can impose removal restrictions on

inferior officers “with limited duties and no policymaking or

administrative authority.” Id. at 2200. That exception does

not apply either, because the General Counsel exercises

“significant administrative authority,” cf. Morrison v. Olson,

487 U.S. 654, 691 (1988), and is not an inferior officer. The

General Counsel supervises the officers and employees in

the regional offices, as well as all attorneys except for

administrative law judges and Board Members’ legal

assistants. 29 U.S.C. § 153(d). The General Counsel also

has final authority, on behalf of the Board, to investigate, to

issue complaints, and to prosecute unfair labor practice

charges. Id.; see Exela, 32 F.4th at 444 (stating that the

position of the General Counsel is “core to the executive

14 NLRB V. AAKASH, INC.

function”); see also id. at 445 (noting that removal

restrictions for the General Counsel could impede the

President’s performance of his Article II duties).

Accordingly, the President’s removal power remains plenary

in this case.

Our decision today accords with the only other circuit

precedent on this issue. We come to the same conclusion as,

and agree with, the Fifth Circuit’s opinion in Exela. There,

the Fifth Circuit held that the Act does not insulate the

General Counsel from removal because it is silent as to

tenure protections for the General Counsel. 32 F.4th at 441–

42, 445. We see no reason to part ways with our sister

circuit’s persuasive discussion.

B. The Board Permissibly Found that Aakash Failed to

Show that the RNs Are Supervisors.

As the party asserting that the RNs have supervisory

status, Aakash bears the burden of proving that status.

NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711–12

(2001). We “defer to the Board’s reasonably defensible

interpretation and application of the [Act].” Providence

Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 551 (9th Cir.

1997). The deference that we give the Board is particularly

strong here, “[b]ecause the Board has expertise in making

the subtle and complex distinctions between supervisors and

employees . . . .” Id. (citation and internal quotation marks

omitted).

The Act protects the right of employees to self-organize

and to bargain collectively, 29 U.S.C. § 157, but excludes

supervisors from its protection, 29 U.S.C. § 152(3). The Act

defines a supervisor as:

NLRB V. AAKASH, INC. 15

any individual having authority, in the

interest of the employer, to hire, transfer,

suspend, lay off, recall, promote, discharge,

assign, reward, or discipline other

employees, or responsibly to direct them, or

to adjust their grievances, or effectively to

recommend such action, if in connection with

the foregoing the exercise of such authority is

not of a merely routine or clerical nature, but

requires the use of independent judgment.

29 U.S.C. § 152(11). Employees are statutory supervisors if

“(1) they hold the authority to engage in any 1 of the 12

. . . supervisory functions [listed in § 152(11)], (2) their

exercise of such authority is not of a merely routine or

clerical nature, but requires the use of independent judgment,

and (3) their authority is held in the interest of the employer.”

Ky. River, 532 U.S. at 713 (citation and internal quotation

marks omitted).

Neither party disputes that the third factor—authority

held in the interest of the employer—applies here. The

parties dispute the applicability of the first and second

factors: authority to engage in supervisory functions and the

use of independent judgment. Aakash claims that the RNs

are supervisors because they hold authority to (1) assign, (2)

discipline, and (3) responsibly direct employees, and they

exercise that authority using independent judgment. We

disagree.

First, Aakash failed to present sufficient evidence to

prove that the RNs assign work using independent judgment

within the meaning of § 2(11). The record suggests that they

simply pair nursing assistants to groups of patients using a

schedule created by the Director of Staff Development. See

16 NLRB V. AAKASH, INC.

Providence, 121 F.3d at 552 (supporting the Board’s finding

that charge nurses who assign nurses to patients within the

parameters of the supervisory nurse’s monthly assignment

schedule do not assign employees using independent

judgment).

Nor do the RNs discipline employees. “[T]he exercise

of disciplinary authority must lead to personnel action

without independent investigation by upper management.”

Veolia Transp. Servs., Inc. & Amalgamated Transit Union,

Loc. 1637, 363 N.L.R.B. 902, 908 (2016). The power to

issue verbal reprimands or report to higher-ups does not

suffice. Id. Aakash cites evidence in the record of only one

instance in which an RN notified the Director of Staff

Development about an employee’s sleeping on the job. But

the RN specifically requested an investigation and review by

management personnel, by notifying the Director of Staff

Development of the incident. The fact that the RN also

chastised the sleeping employee does not, without more,

demonstrate independent authority to discipline. Thus, the

Board correctly concluded that Aakash had failed to provide

evidence sufficient to meet its burden on that point as well.

Finally, Aakash did not prove that the RNs responsibly

direct other employees using independent judgment. “An

employee responsibly directs others when the employee is

‘answerable’ to the employer for other employees’

‘discharge of a duty or obligation.’” Id. at 554 (quoting

Arizona Pub. Serv. Co. v. NLRB, 453 F.2d 228, 231 (9th

Cir. 1971)). The Board reasonably concluded that the RNs

do not direct the work of the nursing aides and are not held

accountable for the nursing aides’ work whether or not the

Director of Nursing or Assistant Director of Nursing is

present. See Providence, 121 F.3d at 555. Thus, they do not

responsibly direct the nursing aides.

NLRB V. AAKASH, INC. 17

C. Conclusion

In sum, we deny Aakash’s cross-petition for review and

grant the Board’s petition for enforcement. General Counsel

Robb was lawfully removed, and the RNs are not statutory

supervisors under the National Labor Relations Act.

PETITION FOR ENFORCEMENT GRANTED;

CROSS-PETITION DENIED.