GGNSC Springfield LLC, dba Golden Living Center-Springfield, Petitioner/Cross-Respondent,
National Labor Relations Board, Respondent/Cross-Petitioner.
Argued: March 15, 2013
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. No. 26-CA-072684.
Michael A. Manzler, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for Petitioner/Cross-Respondent.
Mark R. Freeman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gregoire Sauter, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
Michael A. Manzler, Charles M. Roesch, Jessica E. Bauml, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for Petitioner/Cross-Respondent.
Mark R. Freeman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gregoire Sauter, Robert J. Englehart, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
This case involves the question whether registered nurses (RNs) employed as charge nurses at Golden Living Center (the "Center") are "supervisors" under the National Labor Relations Act (the "Act"). If they are, federal law does not allow them to collectively bargain with their employer. After an evidentiary hearing, the regional director of the National Labor Relations Board concluded that the RNs are not supervisors. We review to determine whether substantial evidence supports that determination and hold that it does not. Accordingly, we grant the Center's petition for review, vacate the Board's order, and deny the Board's cross-application for enforcement.
The Center operates a licensed nursing home in Springfield, Tennessee, that employs approximately 100 individuals. The facility provides short- and long-term care to approximately 120 residents split evenly between the facility's two wings-East and West. Patients range from those who are fully alert to those who are not.
The employment hierarchy at the nursing home is as follows: the Executive Director oversees the entire facility. Various department heads, including a Director of Nursing, report directly to the Executive Director. Two Assistant Directors of Nursing directly oversee each of the facility's two wings. Those primarily responsible for patient care include 12 RNs, 10 licensed practical nurses (LPNs), and 46 certified nursing assistants (CNAs). The Center refers to its RNs and LPNs as "charge nurses." (While RNs and LPNs have the same duties, only the RNs attempted to collectively bargain.) Charge nurses report directly to the Director of Nursing or her designee. Typically, two charge nurses are assigned to each wing at a time. The number of CNAs assigned to each wing varies from two to six.
In October 2011, the International Association of Machinists and Aerospace Workers, AFL-CIO (the "Union"), petitioned the Board and sought to represent the Center's RNs in collective bargaining. The Center opposed the petition, claiming that its RNs (all charge nurses) were "supervisors" under the Act and therefore not permitted to unionize. See 29 U.S.C. §§ 152(3), 157. A hearing was held where evidence was received. In November 2011, the Board's regional director concluded that the RNs are not supervisors, certified the requested bargaining unit, and directed an election. The Board declined further review. The following day, the RNs elected the Union as their bargaining representative.
A week later, the Union asked the Center to bargain with it. The Center refused, prompting a complaint with the Board that alleged unfair labor practices. See 29 U.S.C. § 158(a)(1), (5). The Center admitted its refusal to bargain and contested only the regional director's decision to certify the bargaining unit. The Board sustained the Union's complaint and ordered the Center to bargain with it. This petition for review and cross-application for enforcement followed.
Before addressing the merits of the Center's petition, we consider a question raised regarding the composition of the Board. After briefing was complete, the Center filed a letter citing as supplemental authority the D.C. Circuit's recent opinion, Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3629 (U.S. June 24, 2013) (No. 12-1281). In its supplemental authority letter, the Center asserted that the Noel Canning decision supplied "an additional, independent ground for vacating the Board's Order in this matter." Because the Center contends that its new argument has jurisdictional significance, we consider it at the outset. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88–89 (1998).
In Noel Canning, the D.C. Circuit held that an order of the Board was void because it was issued at a time when the Board did not have at least three lawfully appointed members. Our sister circuit ruled that at the time the order was issued, three of the Board's five members had been appointed by the President without "the Advice and Consent of the Senate, " in violation of the Constitution's Appointments Clause.The court rejected the Board's argument that the President had legally bypassed that constitutional requirement by invoking the Recess Appointments Clause and appointing the members during an intrasession "recess" of the Senate, i.e., one of the "breaks in the Senate's business when it is otherwise in a continuing session." Noel Canning, 705 F.3d at 499–500. The court found the Board's interpretation of the clause contrary to its text, structure, and historical interpretation, which all suggest that "the Recess" refers instead only to intersession recesses, i.e., breaks between "the usually two or sometimes three sessions per Congress." Id. at 499–507. The court also concluded that the appointments were invalid because the vacancies they filled did not "happen" during a break between formal Senate sessions. Id. at 507–14.
The parties agree that Noel Canning's legal conclusions, if followed here, would render the Board's order void. The Board asks that we not take up the challenge to its authority, claiming that the Center forfeited the argument by making it for the first time in a letter to us filed under Federal Rule of Appellate Procedure 28(j). See Superior Bank, FSB v. Boyd (In re Lewis), 398 F.3d 735, 748 n.9 (6th Cir. 2005) (declining to consider a defense asserted for the first time in this way). The Center responds that its challenge is "jurisdictional" and thus can never be forfeited. If true, that would require us to address it before any non-jurisdictional challenges. See Steel Co., 523 U.S. at 88–89. But the Center is mistaken. Errors regarding the appointments of officers under Article II are "nonjurisdictional." See Freytag v. Comm'r, 501 U.S. 868, 878–79 (1991); accord Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 756 (D.C. Cir. 2009) (per curiam).
Noel Canning did not suggest otherwise. Its discussion of "jurisdiction, " 705 F.3d at 496–98, concerned its statutory authority to consider challenges not first presented to the Board, see 29 U.S.C. § 160(e),  an exhaustion-type requirement that the Supreme Court has characterized as "jurisdictional, " see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665–66 (1982); it did not concern jurisdiction in the sense that the court had an independent obligation to raise and consider the matter on its own, at the threshold, before reviewing the merits of the Board's decision, cf., e.g., Steel Co., 523 U.S. at 88–89. That the D.C. Circuit in Noel Canning considered the petitioner's statutory challenge before addressing the constitutional one further demonstrates that it did not deem the constitutional one jurisdictional. But see NLRB v. New Vista Nursing & Rehab., — F.3d —, 2013 WL 2099742, at *3–6 (3d Cir. May 16, 2013) (deeming "jurisdictional" the statutory requirement that the member-groups to whom the Board delegates its authority always have at least three members, and concluding that "any reason" why the group has less than that (e.g., an invalid Presidential appointment) can be raised as a jurisdictional defect). Because we hold that the Center's belated ...