FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS 

BOARD, 

Petitioner,

SERVICE EMPLOYEES 

INTERNATIONAL UNION LOCAL 

2015, 

Intervenor,

 v. 

AAKASH, INC., DBA Park Central 

Care and Rehabilitation Center, 

Respondent.

No. 22-70002 

NLRB No.32-

CA-282957 

OPINION

AAKASH, INC., DBA Park Central 

Care and Rehabilitation Center, 

Petitioner,

 v. 

NATIONAL LABOR RELATIONS 

BOARD, 

Respondent.

No. 22-70008 

NLRB No.32-

CA-282957 
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

Heather S. Beard (argued), Senior Attorney; Elizabeth A. 

Heaney and Meredith L. Jason, Supervisory Attorneys; 

David Habenstreit, Assistant General Counsel; Ruth E. 

Burdick, Deputy Associate General Counsel; Peter Sung 

Ohr, Deputy General Counsel; Jennifer A. Abruzzo, General 

Counsel; National Labor Relations Board; Washington, 

D.C.; Benjamin M. Shultz (argued) and Scott R. Mcintosh, 

Attorneys, Appellate Staff; Brian M. Boynton, Acting 

Assistant Attorney General; United States Department of 

Justice, Washington, D.C.; for Petitioner. 

David A. Rosenfeld and Manuel A. Boigues, Weinberg 

Roger & Rosenfeld, Emeryville, California, for Intervenor. 

Dylan B. Carp (argued), Jackson Lewis PC, San Francisco, 

California; Louis J. Cannon, Jackson Lewis PC, Baltimore, 

Maryland; for Respondent. 
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 “selfdetermination” 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 fouryear 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 oneyear 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.