NLRB v. Aakash, Inc., 58 F.4th 1099

Aakash operates a 99‑bed skilled nursing facility in California with about 90 nursing staff (6 RNs, 13 LVNs, ~60 nursing aides); scheduling and major nursing decisions are set by Director/Assistant Director of Nursing.
In 2020 the Union sought to add RNs and LVNs to an existing bargaining unit; the Regional Director found Aakash failed to prove RNs were statutory supervisors and ordered a self‑determination election, which the Union won.
After the Union requested recognition in March 2021, Aakash refused and the Board’s General Counsel issued an unfair‑labor‑practice complaint for refusal to bargain under Sections 8(a)(5) and (1).
President Biden removed then‑General Counsel Peter Robb (appointed for a four‑year term) in early 2021; Jennifer Abruzzo was later confirmed and prosecuted the charge.
Aakash cross‑petitioned: (1) arguing Abruzzo lacked authority because Robb’s removal without cause was unlawful, and (2) arguing the certified unit was improper because RNs are statutory supervisors. The Ninth Circuit rejected both arguments and enforced the Board’s order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the President lawfully removed the NLRB General Counsel and whether the successor’s prosecutions are void	Board: removal lawful; successor’s actions valid	Aakash: Robb’s four‑year statutory term precludes removal without cause, so Abruzzo’s prosecutions are ultra vires	Court: President may remove the General Counsel at will; Robb’s removal was lawful and Abruzzo’s acts are valid
Whether RNs are statutory supervisors excluded from the bargaining unit	Board: RNs are employees, not statutory supervisors	Aakash: RNs assign, discipline, and responsibly direct nursing aides using independent judgment, so they are supervisors	Court: Aakash failed to carry burden; RNs do not exercise independent supervisory authority and are not statutory supervisors

Parsons v. United States, 167 U.S. 324 (1897) (fixed term alone does not bar presidential removal)
Shurtleff v. United States, 189 U.S. 311 (1903) (appointment power carries removal power absent plain statutory limitation)
Myers v. United States, 272 U.S. 52 (1926) (presidential removal authority and related precedent)
Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (for‑cause removal recognized where statute so provides)
Wiener v. United States, 357 U.S. 349 (1958) (inference of removal protection for adjudicative bodies with intrinsic judicial character)
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) (limits on for‑cause removal examined in separation‑of‑powers context)
NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706 (2001) (three‑part test for statutory supervisor status)
Providence Alaska Med. Ctr. v. NLRB, 121 F.3d 548 (9th Cir. 1997) (deference to Board’s supervisor determinations)
NLRB v. United Food & Com. Workers Union, Loc. 23, 484 U.S. 112 (1987) (distinguishing Board’s and General Counsel’s functions)
Morrison v. Olson, 487 U.S. 654 (1988) (roles and removal limitations for inferior officers)
Exela Enters. Sols., Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022) (holding General Counsel removable at will under the Act)