National Labor Relations Board v. New Vista Nursing & Rehabilitation
870 F.3d 113
| 3rd Cir. | 2017Background
- New Vista Nursing employed LPNs who sometimes completed "Employee Warning Notices" or "Notices of Corrective Action" concerning CNAs; the Union petitioned to represent the LPNs and won an election.
- New Vista refused to bargain, arguing the LPNs were statutory "supervisors" under 29 U.S.C. § 152(11) because they could "discipline other employees or effectively to recommend such action."
- A Regional Director applied a four-part test (from an NLRB pre-Attleboro decision) and concluded LPNs were not supervisors because their recommendations were allegedly reportorial, rarely used, and were independently investigated by management.
- The full NLRB granted summary judgment for the Union; New Vista filed multiple motions for reconsideration and challenged Board quorum/appointments after several recess appointments were made to the Board.
- After procedural litigation and the Supreme Court’s Noel Canning decision about recess appointments, the Third Circuit held some previous Board members’ appointments invalid, remanded portions to the Board, and ultimately reviewed the merits.
- The Third Circuit majority held the Board used the wrong legal standard (conflicting with Third Circuit precedent) in deciding whether LPNs could "effectively recommend" discipline and remanded for reconsideration under governing precedent.
Issues
| Issue | Plaintiff's Argument (New Vista) | Defendant's Argument (Board/Union) | Held |
|---|---|---|---|
| Whether LPNs are "supervisors" under § 2(11) based on authority to discipline or effectively recommend discipline | LPNs fill out corrective-action forms and therefore have authority to recommend discipline, excluding them from NLRA protection | Board/Union argued LPNs only reported facts; management independently investigated and made discipline decisions, so LPNs lack effective recommendation authority | Court vacated Board order and remanded for application of correct legal standard (per Attleboro and related Third Circuit precedent) |
| Proper legal test for "effectively to recommend" discipline | N/A (challenge focused on Board’s application) | Board applied a four-part test (from vacated NLRB precedent) requiring recommendations be followed regularly and not independently investigated | Court held that test conflicts with Third Circuit precedent (Attleboro/Prime Energy) and remanded for the Board to apply the correct standard |
| Effect of independent investigations by management on supervisory status | N/A | Board relied on independent investigations to deny supervisory status | Court explained independent investigation by superiors does not automatically defeat effective-recommendation authority under Attleboro; Board misapplied law |
| Procedural challenges: Board quorum, recess appointments, recusal, transparency | New Vista argued multiple Board actions were ultra vires due to invalid recess appointments, recusals, and lack of notice/ex parte contacts | Board maintained orders were valid, delegated properly, and that communications were permissible; Member Hirozawa properly declined to recuse | Court rejected New Vista’s procedural claims (found no abuse of discretion on recusal/transparency issues) but recognized prior jurisdictional questions tied to recess appointments; substantive remand required on merits |
Key Cases Cited
- NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154 (3d Cir.) (1999) (Third Circuit precedent holding charge nurses could be supervisors where they initiate progressive discipline that becomes part of personnel files)
- Kentucky River Cmty. Care, Inc. v. NLRB, 532 U.S. 706 (U.S. 2001) (establishes three-part supervisory test: authority under § 2(11), independent judgment, and acting in interest of employer)
- Noel Canning v. NLRB, 134 S. Ct. 2550 (U.S. 2014) (limits validity of recess appointments; affects legitimacy of certain NLRB members)
- New Process Steel, L.P. v. NLRB, 560 U.S. 674 (U.S. 2010) (addresses Board quorum/delegation rules and validity of three-member delegations)
- Mars Home for Youth v. NLRB, 666 F.3d 850 (3d Cir. 2011) (approved an Oakwood-influenced approach to independent judgment in recommending discipline)
- D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) (upheld procedure where a recused member had previously participated in delegation to a three-member panel)
- SEC v. Chenery Corp., 318 U.S. 80 (U.S. 1943) (principle that a court cannot affirm agency action on a post hoc rationale not relied on by the agency)