NLRB v. Aakash, Inc.

Under section 8(a)(5) of the National Labor Relations Act, it is an unfair labor practice for an employer to refuse to bargain collectively with the representatives of their employees.

The Service Employees International Union (“the Union”) filed an unfair labor practice charge against Aakash, who operated a skilled nursing facility, when Aakash refused to recognize the new bargaining unit. The National Labor Relations Board (“the Board”) found that Aakash had violated Sections 8(a)(5) and (1) of the National Labor Relations Act and petitioned for enforcement of a final order recognizing the bargaining unit. Aakash argued for two reasons that the Board’s order be vacated. First, the Board’s newly appointed General Counsel lacked authority to prosecute the charge because removal of former General Counsel was unlawful. Second, the Registered Nurses (RNs) were ineligible for inclusion in the new bargaining unit because they were statutory supervisors. The Court rejected both arguments. Because the Act is silent as to tenure protections for the Board’s General Counsel, the Act does not completely protect General Counsel from removal. The RNs were not statutory supervisors because they did not assign work using independent judgment, they did not discipline employees, and they did not direct other employees using independent judgment. Therefore, the Board’s removal of General Counsel was not unlawful, and the RNs were not statutory supervisors under the National Labor Relations Act. PETITION GRANTED; cross-petition denied.