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
S. Brinkmann Melissa N. Patterson United States Department of
Justice Civil Division Julie B. Broido Linda Dreeben
Milakshmi V. Rajapakse National Labor Relations Board Scott
R. McIntosh United States Department of Justice Civil
Division Benjamin M. Shultz United States Department of
Justice Civil Division William S. Massey Gladstein Reif &
Meginniss Counsel for Petitioner
J. Capozzi, Jr. Capozzi Adler Morris Tuchman Counsel for
Williams Catholic University of America School of Law Counsel
Before: SMITH, Chief Judge, GREENAWAY, JR., and FISHER,
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 recommended
discipline for certified nursing assistants
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.
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.
are three levels of nursing staff at the New Vista home who
are supervised by the Director of Nursing: (1) the
"nursing supervisor" during the evening shift or
"unit manager" during the morning shift; (2)
LPNs; 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
Board approved the bargaining unit and required that an
election be held to determine whether the Union 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.
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."
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).
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.
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.
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.
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 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.
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
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
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.
decision and order dated August 26, 2011, the Board (Liebman,
Becker, Hayes) 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.
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 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.,
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
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.
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.
First Motion for Reconsideration, New Vista argued that the
August 26, 2011 order was ultra vires because 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
September 13, 2011, the Board filed an application for
enforcement of its August 26, 2011 order with this Court.
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
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,
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,
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
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.").
March 22, 2012, New Vista filed its Fourth Motion for
Reconsideration, arguing that Members Griffin and Block 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.
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.
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
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.
thereafter, the Board filed a petition for rehearing en banc.
On July 16, 2013, we stayed further 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).
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.
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.
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- 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.
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. 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 the motion for remand. See Order, No.
11-3440 (3d Cir. filed Dec. 4, 2015).
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.
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.
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
supplemental material, we now review the Board's petition
for enforcement and New Vista's cross-petitions for
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.
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.
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).
it mildly, motions for reconsideration have piled up in this
case. The following table shows the tangled nature of the
five motions for reconsideration:
and Motions under Consideration
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
THE FIFTH MOTION FOR RECONSIDERATION (RESOLVED IN THE
BOARD'S JANUARY 5, 2016 ORDER)
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-and (2) Member Hirozawa should have
recused. See SA19. Both arguments fail.
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
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 entitled to the benefit of the
presumption of regularity. See Kamara v. Att'y
Gen., 420 F.3d 202, 212 (3d Cir. 2005).
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