                                 PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                No. 11-3440
               _____________

    NATIONAL LABOR RELATIONS BOARD,
                             Petitioner

1199 SEIU UNITED HEALTHCARE WORKERS EAST,
                 N.J. REGION,
                              Intervenor
                       v.

  NEW VISTA NURSING AND REHABILITATION,
                             Respondent

               ______________

            Nos. 12-1027 & 12-1936
                _____________

NEW VISTA NURSING AND REHABILITATION, LLC,
                             Petitioner
                    v.

     NATIONAL LABOR RELATIONS BOARD,
                              Respondent
1199 SEIU UNITED HEALTHCARE WORKERS EAST,
                 N.J. REGION,
                                         Intervenor

                _______________________

     On Application for Enforcement of an Order of the
           National Labor Relations Board &
                Cross-Petitions for Review
                  (NLRB-22-CA-29988)
       ____________________________________

       Submitted Under Third Circuit L.A.R. 34.1(a)
   After Remand to the NLRB and Supplemental Briefing
                     on May 6, 2016


   Before: SMITH, Chief Judge, GREENAWAY, JR., and
                FISHER, Circuit Judges

                  (Filed: August 29, 2017)
Beth S. Brinkmann
Melissa N. Patterson
United States Department of Justice
Civil Division
Room 3135
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Julie B. Broido
Linda Dreeben
Milakshmi V. Rajapakse
National Labor Relations Board
                             2
1015 Half Street SE
Washington, DC 20570

Scott R. McIntosh
United States Department of Justice
Civil Division
Room 7259
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Benjamin M. Shultz
United States Department of Justice
Civil Division
Room 7211
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

William S. Massey
Gladstein Reif & Meginniss
817 Broadway
6th Floor
New York, NY 10003
       Counsel for Petitioner

Louis J. Capozzi, Jr.
Capozzi Adler
1200 Camp Hill Bypass
Camp Hill, PA 17011

Morris Tuchman
2nd Floor
                                3
134 Lexington Avenue
New York, NY 10016
      Counsel for Respondent

Victor Williams
Catholic University of America
School of Law
Faculty Suite 480
3600 John McCormack Road, N.E.
Washington, DC 20064
       Counsel for Amicus-petitioner

                      ________________

                          OPINION
                         ________________

SMITH, Chief Judge.


       Respondent-Petitioner New Vista Nursing and
Rehabilitation, LLC (“New Vista”), contends that the licensed
practical nurses (“LPNs”) employed at its nursing home could
not unionize because they were “supervisors.” The LPNs are
supervisors, New Vista argues, because they have the
“authority” to “discipline other employees[] . . . or effectively
to recommend such action.” 29 U.S.C. § 152(11). New Vista
explains that the LPNs had such authority because their duties
included filling out forms known as “Employee Warning
Notices” or “Notices of Corrective Action,” which


                               4
recommended discipline for certified nursing assistants
(“CNAs”).

       After New Vista refused to bargain with the LPNs’
union, the National Labor Relations Board (the “Board”) held
that New Vista’s refusal to bargain was unlawful because,
among other things, the nurses did not have the authority to
effectively recommend discipline. To determine whether the
LPNs had such authority, the Board applied a four-part test
squarely at odds with our controlling precedent—specifically
NLRB v. Attleboro Associates, Ltd., 176 F.3d 154 (3d Cir.
1999). Therefore, we will deny the Board’s petition for
enforcement and grant New Vista’s cross-petitions for
review. In doing so, we will remand this case to the Board to
allow it to determine whether the LPNs have the authority to
effectively recommend discipline under Attleboro.

       Before we can move to the analysis by which the
Board should determine whether the LPNs are statutory
supervisors, we will first address the sundry procedural
arguments advanced by New Vista. After the Supreme
Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550
(2014), and our post–Noel Canning remand to the Board to
clear up procedural and jurisdictional issues, we conclude that
New Vista’s procedural arguments are meritless.

                      BACKGROUND

     There are three levels of nursing staff at the New Vista
home who are supervised by the Director of Nursing: (1) the


                              5
“nursing supervisor” during the evening shift or “unit
manager” during the morning shift; (2) LPNs 1; and
(3) “Certified Nurse Aides” also known as “certified nursing
assistants” or “CNAs.” See New Vista Nursing & Rehab.,
LLC, 357 N.L.R.B. 714, 715 (2011); JA0073–75; JA0079;
JA0881. In January 2011, 1199 SEIU United Healthcare
Workers East (the “Union”) filed a petition to represent the
LPNs. 2

       The Board approved the bargaining unit and required
that an election be held to determine whether the Union



1
  Registered nurses or “RNs” interchangeably occupy the
same position as the LPNs. See, e.g., New Vista Nursing &
Rehab., LLC, Case No. 22-RC-13204, slip op. at 4 (Mar. 9,
2011) (regional director’s decision) (“One nurse (either an
RN or an LPN) is assigned to each unit on the floor . . . .”),
available                                                   at
http://apps.nlrb.gov/link/document.aspx/09031d458045c16b,
request for review denied (Apr. 8, 2011), available at
http://apps.nlrb.gov/link/document.aspx/09031d4580471
8e4; JA0074 (“They could be an RN or an LPN.”). We
use record citations for Regional Director J. Michael
Lightner’s order, JA0848–80; New Vista Nursing &
Rehab., LLC, No. 22-RC-13204 (Mar. 9, 2011). A copy
of the order and the denial of the request for review can
be accessed at the above URLs.
2
  The CNAs are already represented by the Union. See,
e.g., JA0180.
                             6
would serve as the LPNs’ bargaining representative.
JA0848–50, 0878–79. The bargaining unit was defined to
include “[a]ll full-time and regular part-time Licensed
Practical Nurses employed by the Employer at its Newark,
New Jersey facility, excluding all other employees, guards,
and supervisors as defined by the Act.” JA0849–50.

        One of New Vista’s main objections to the bargaining
unit was that the LPNs were supervisors under 29 U.S.C.
§ 152(11) because they have the “authority” to “discipline
other employees[] . . . or effectively to recommend such
action.” If they were supervisors, the LPNs would not have a
statutory right to be represented in collective bargaining. See
29 U.S.C. § 152(3) (“The term ‘employee’ . . . shall not
include . . . any individual employed as a supervisor . . . .”);
see also NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706,
718 (2001) (“The Labor Management Relations Act, 1947
(Taft-Hartley Act) expressly excluded ‘supervisors’ from the
definition of ‘employees’ and thereby from the protections of
the Act.”). To determine whether an individual is a
supervisor, the Supreme Court has provided a three-part test:

       Employees are statutory supervisors if (1) they
       hold the authority to engage in any 1 of the 12
       listed supervisory functions [in 29 U.S.C.
       § 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.”


                               7
Ky. River, 532 U.S. at 713 (quoting NLRB v. Health Care &
Ret. Corp. of Am., 511 U.S. 571, 573–74 (1994)). One of the
twelve listed supervisory functions is “disciplin[ing] other
employees.” 29 U.S.C. § 152(11).

       New Vista argued that it showed that the LPNs
effectively have the power to discipline other employees
because LPNs submitted disciplinary forms known as a
“Notice of Corrective Action” or “Employee Warning
Notice.” E.g., JA0872–73, JA0884–86.

       The facts surrounding these forms were fiercely
contested. See JA0856–0862. Some testimony suggested
LPNs did not use the forms to effectively recommend
discipline. One of the nurses had never seen the Employee
Warning Notice until just prior to her testimony. See JA0276;
see also JA0329. Similarly, testimony by another nurse was
that LPNs rarely (if ever) recommended a specific kind of
discipline. See JA0330.

       There was, however, countervailing evidence that
supported New Vista’s position. Most notably, Director of
Nursing Victoria Alfeche testified that LPNs, in the exercise
of their own discretion, frequently filled out these forms.
Further, Alfeche explained that LPNs could recommend a
specific type of discipline and that she acted on the forms as a
matter of course. See JA0098–99, 0148.

       In his March 9, 2011 order, NLRB Regional Director
J. Michael Lightner rejected New Vista’s argument, applying
a four-part test based on a vacated NLRB opinion: “To
prevail, the Employer must prove that: (a) LPNs submit
                               8
actual recommendations, and not merely anecdotal reports,
(b) their recommendations are followed on a regular basis, (c)
the triggering disciplinary incidents are not independently
investigated by superiors, and (d) the recommendations result
from the LPNs’ own independent judgment.” JA873 (citing
ITT Lighting Fixtures, 265 N.L.R.B. 1480, 1481 (1982),
vacated on other grounds sub nom. ITT Lighting Fixtures,
Div. of ITT Corp. v. NLRB, 712 F.2d 40 (2d Cir. 1983)).
Director Lightner’s conclusion rested heavily on his finding
that LPNs “simply report[ed] factual findings to their
superiors without any specific recommendation for
disciplinary action” and that the “higher authorities” at New
Vista proceeded with independent investigations upon
receiving the forms. See JA0873–74. Director Lightner also
noted that there were very few examples in the record of
LPNs who filled out the forms other than Grace Tumamak.
See JA0875. Director Lightner further found that forms filled
out by Ms. Tumamak could not show the authority of other
LPNs because Ms. Tumamak served as the unit manager on
one shift and as an LPN on another. See JA0850.

       The election to determine whether the Union would
serve as the LPNs’ bargaining representative was held on
April 8, 2011. See JA0039. A majority of LPNs voted to be
represented by the Union by a vote of 26 to 7. See id. Four
additional votes were challenged. See id.

        That same day, the Board denied New Vista’s request
for review of Director Lightner’s order that directed the
election would occur.          See JA0911, available at
http://apps.nlrb.gov/link/document.aspx/09031d45804718e4.

                              9
        Because such denials are nonreviewable, New Vista
pursued the standard course of testing the Union’s
certification by refusing to bargain. See NLRB v. FedEx
Freight, Inc., 832 F.3d 432, 435 n.1 (3d Cir. 2016); JA0021;
JA0042 (“Dear All; We are testing the certification and will
not be bargaining.”). New Vista asserted that the LPNs were
statutory supervisors and, even if they had not been prior to
the certification, they were as of March 25, 2011, because of
a change in the LPNs’ duties. See JA0049, 0053.

       In a decision and order dated August 26, 2011, the
Board (Liebman, Becker, Hayes) 3 unanimously granted
summary judgment in favor of the Union and against New
Vista. See New Vista Nursing & Rehab., LLC, 357 N.L.R.B.
714.

       The Board’s order granting summary judgment on the
refusal to bargain charge and many of its subsequent orders
denying New Vista’s motions for reconsideration took place
during what may fairly be described as unusual times for the


3
  Member Pearce recused. See New Vista Nursing &
Rehab., LLC, 357 N.L.R.B. 714, 714 n.1 (2011).
Throughout this opinion, we frequently note which Board
members voted on particular orders. We do so because
many of New Vista’s challenges go to whether certain
members had already resigned, were illegally appointed,
or should have recused from a particular decision—not
because the identity of the Board is of significance for
any other reason.
                           10
Board. The political branches had not filled many of the
vacancies on the Board. This led then-President Obama to
make a series of recess appointments to fill the vacancies.
See NLRB v. Noel Canning, 134 S. Ct. 2550, 2557–58 (2014)
(describing the recess appointments); id. at 2557 (“As of
January 2012, Flynn’s nomination had been pending in the
Senate awaiting confirmation for approximately a year.”). As
is relevant here, there were two different sets of recess
appointments: (1) Craig Becker was recess appointed to the
Board in 2010, and (2) Sharon Block, Terence Flynn, and
Robert Griffin were all recess appointed in 2012. See NLRB
v. New Vista Nursing & Rehab., 719 F.3d 203, 213 (3d Cir.
2013), abrogated by Noel Canning, 134 S. Ct. 2550; id. at
244–45 (Greenaway, Jr., J., dissenting).

       As described below, if there are an insufficient number
of Board Members, the Board will be unable to muster a
quorum. Without a quorum, the Board cannot issue legally
enforceable orders. The National Labor Relations Act
(“NLRA”) provides that the Board shall have five members.
29 U.S.C. § 153(a). As the Supreme Court has held, there are
three Board quorums, of which the first and third must exist
for any given NLRB decision to be valid under 29 U.S.C.
§ 153(b). See generally New Process Steel, L.P. v. NLRB,
560 U.S. 674 (2010). First, three members of the Board
constitute a quorum of the entire Board. See 29 U.S.C.
§ 153(b) (“[T]hree members of the Board shall, at all times,
constitute a quorum of the Board . . . .”); New Process Steel,
560 U.S. at 680 (“Interpreting the statute to require the
Board’s powers to be vested at all times in a group of at least
three members is consonant with the Board quorum

                              11
requirement, which requires three participating members ‘at
all times’ for the Board to act.” (quoting 29 U.S.C. § 153(b)).
Second, the Board may delegate its power to a three-member
group. See 29 U.S.C. § 153(b) (“The Board is authorized to
delegate to any group of three or more members any or all of
the powers which it may itself exercise.”); New Process Steel,
560 U.S. at 679 (“The first sentence of § 3(b), which we will
call the delegation clause, provides that the Board may
delegate its powers only to a ‘group of three or more
members.’” (quoting Labor Management Relations Act, 1947,
§ 3(b), Pub. L. No. 80-101, 61 Stat. 136, 139 (codified as
amended at 29 U.S.C. § 153(b))). Third, two members of any
three-member group constitute a quorum of a three-member
group. See 29 U.S.C. § 153(b) (“[T]wo members shall
constitute a quorum of any group designated pursuant to the
first sentence hereof.”); New Process Steel, 560 U.S. at 681
(“[T]he group quorum provision, which still operates to
authorize a three-member delegee group to issue a decision
with only two members participating, so long as the delegee
group was properly constituted.”). The two-member quorum
of a three-member group ceases to exist as a viable quorum
when the Board has fewer than two members. See New
Process Steel, 560 U.S. at 679.

      On September 7, 2011, New Vista began filing the first
of what would ultimately be five motions for reconsideration,
arguing that the Board acted ultra vires because it had too few
Members either serving or involved in a particular decision.

      In its First Motion for Reconsideration, New Vista
argued that the August 26, 2011 order was ultra vires because

                              12
it was posted on the Board’s website after the expiration of
the term of one of its signing members—then-Chairman
Wilma Liebman. According to New Vista, if Chairman
Liebman had not legally participated in the August 26, 2011
order, the delegee group only consisted of two members in
violation of 29 U.S.C. § 153(b). See JA0051. New Vista also
argued it was entitled to a hearing to investigate changed
circumstances in the LPNs’ authority to supervise, pursuant to
Frito-Lay, Inc., 177 N.L.R.B. 820 (1969).

       On September 13, 2011, the Board filed an application
for enforcement of its August 26, 2011 order with this Court.
See JA0001.

       On December 30, 2011, the Board (Becker, Hayes)
denied New Vista’s First Motion for Reconsideration. As to
Chairman Liebman, the Board explained that the August 26,
2011 order was made final prior to the August 27 end of
Chairman Liebman’s term and that the Board’s subsequent
acts with regard to the August 26, 2011 order were
ministerial. See JA0012–14. With regard to the Frito-Lay
argument, the Board rejected it “[f]or the reasons set forth in
the Board’s August 26, 2011 Decision and Order.” JA0014.

       On January 3, 2012, New Vista filed its Second
Motion for Reconsideration. The Second Motion argued that
the December 30, 2011 order denying the First Motion for
Reconsideration was not decided by a “proper quorum”
because one of the three members of the panel, Chairman
Pearce, had recused. See JA0055–57. Because the panel
consisted only of Members Becker and Hayes, it was,
according to New Vista, improperly constituted.
                              13
       On January 9, 2012, New Vista filed a petition for
review of the December 30 order with this Court. See
JA0002–03. We have treated this petition as a cross-petition
for review opposing the Board’s petition for enforcement of
the August 26, 2011 order.

       On March 14, 2012, New Vista filed its Third Motion
for Reconsideration. New Vista argued that the Board’s
December 30, 2011 order denying the First Motion for
Reconsideration was ultra vires because Member Becker’s
recess appointment ended on December 17, 2011. According
to New Vista, the Board (Becker, Hayes) lacked a two-person
quorum to issue its December 30, 2011 order. See JA0058–
59.

        On March 15, 2012, the Board (Hayes, Griffin, Block)
denied New Vista’s Second Motion for Reconsideration. The
Board held that there was a quorum for the December 30,
2011 order denying the First Motion for Reconsideration.
Specifically, the March 15, 2012 order relied on the fact that,
pursuant to New Process Steel, a two-member quorum of a
panel can issue legally enforceable orders. See JA0015–16.
The March 15, 2012 order quoted from the December 30,
2011 order showing that Pearce engaged in the delegation of
power to the two-member quorum and then recused. See
JA0016 (“Chairman Pearce, who is recused and did not
participate in the underlying decision, is a member of the
present panel but did not participate in deciding the merits of
this proceeding.”).

      On March 22, 2012, New Vista filed its Fourth Motion
for Reconsideration, arguing that Members Griffin and Block
                              14
were not Board members on March 15, 2012 because they
had been illegally appointed during an intrasession recess.
See JA60–61. New Vista again argued that the December 30,
2011 order was improper because Becker was no longer a
Board member on December 30, 2011. See id.

       On March 27, 2012, the Board (Hayes, Griffin, Block)
denied the Third and Fourth Motions for Reconsideration.
See JA0017–18. The Board stated that the Board properly
delegated its authority to a three-member panel and would
“not entertain any further motions for reconsideration
challenging the authority of the Board in this matter.” Id.

       On April 5, 2012, New Vista filed a petition for review
of the March 15 and March 27 orders. See JA0004–06. We
granted New Vista’s request that this petition be consolidated
with New Vista’s earlier petition for review for all purposes.
These consolidated petitions for review are collectively
treated as a cross-petition opposing the Board’s petition for
enforcement of the August 26, 2011 order.

       On May 16, 2013, we ruled on the Board’s petition
and New Vista’s cross-petitions, holding that the “delegee
group acted without power and lacked jurisdiction” when it
issued the August 26, 2011 order because Becker’s recess
appointment was invalid. New Vista, 719 F.3d at 221, 244.
Specifically, we held that recess appointments were legal only
when made during Congress’s “intersession breaks.” Id. at
208.

       Shortly thereafter, the Board filed a petition for
rehearing en banc. On July 16, 2013, we stayed further
                             15
consideration of New Vista pending the Supreme Court’s
resolution of Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir.
2013), which also addressed the legality of recess
appointments to the Board. See Order, No. 12-1027 (3d Cir.
filed July 15, 2013).

        On June 26, 2014, the Supreme Court issued its
decision in Noel Canning. 134 S. Ct. 2550. The Supreme
Court held that, as used in the Appointments Clause, “the
phrase ‘the recess’” is not limited to recesses between
congressional sessions. Id. at 2561. Recess appointments
could be made during an intrasession recess, but such a recess
that is “less than 10 days is presumptively too short to fall
within the Clause.” Id. at 2567. Further, “pro forma
sessions” are not “periods of recess,” so no recess
appointments could be made during any intrasession recess
punctuated by pro forma sessions fewer than ten days apart.
Id. at 2574.

        Applying those rules, the Supreme Court held that
Griffin’s and Block’s recess appointments were invalid.
When Griffin and Block received their recess appointments,
the Senate had been holding “pro forma sessions every
Tuesday and Friday.” Id. at 2557. Because these pro forma
sessions limited the length of the intrasession recess, the
resulting 3-day recesses were “too short to trigger the
President’s recess-appointment power.” Id. at 2574.

      At the same time, the Supreme Court implied that
Member Becker’s appointment was valid because it was
made during a two-week intrasession recess. See id. at 2558
(“The President appointed Member Becker during an intra-
                             16
session recess that was not punctuated by pro forma sessions,
and the vacancy Becker filled had come into existence prior
to the recess.”); see also New Vista, 719 F.3d at 213
(“Member Becker . . . was appointed on March 27, 2010, one
day after the Senate ‘adjourn[ed]’ for two weeks.” (quoting
156 Cong. Rec. S2180 (daily ed. Mar. 26, 2010) (statement of
Sen. Kaufman)).

       Following the Supreme Court’s Noel Canning
decision, we granted the Board’s motion for panel rehearing.
In response to this Court’s questions, the Board admitted it
“undisputedly lacked a quorum” for its March 15, 2012, and
March 27, 2012 orders. 4 Motion of the National Labor
Relations Board for Limited Remand of the Administrative
Record, No. 11-3440, Doc No. 003112144322 (3d Cir. Dec.
2, 2015).     The Board requested that we remand the
administrative record so that it could rule on the motions for
reconsideration it denied in March 2012. See id. We granted



4
  Because the Board undisputedly lacked a quorum in
March 2012, this Court may have lacked jurisdiction over
this case had we not remanded because submitting the
record creates jurisdiction in this Court, 29 U.S.C.
§ 160(e) (“Upon the filing of the record with it the
jurisdiction of the court shall be exclusive and its
judgment and decree shall be final.”), and the Board may
have lacked the power to submit the record when it did so
on March 27, 2012, see NLRB Certified List
Transmitted, No. 11-3440 (3d Cir. filed Mar. 27, 2012).
                           17
the motion for remand. See Order, No. 11-3440 (3d Cir. filed
Dec. 4, 2015).

      On remand, the Board (Miscimarra, Hirozawa,
McFerran) again denied New Vista’s Second and Third
Motions for Reconsideration on the merits and then denied
New Vista’s Fourth Motion for Reconsideration as moot.
SA14–18.

       New Vista then filed a Fifth Motion for
Reconsideration, arguing a lack of transparency and that there
was no valid quorum to enter the most recent order because
Member Hirozawa should have recused himself. Among
other things, New Vista claimed that Member Hirozawa’s
former law firm represented the Union in this case. See
SA19–20. On January 5, 2016, the Board denied the Fifth
Motion for Reconsideration, with Member Hirozawa denying
the request for recusal. See SA21–26. The Board explained
that New Vista knew that the Board planned to review the
Fourth Motion for Reconsideration “expeditiously.” SA23.
As to recusal, the Board referred New Vista to an attached
statement by Member Hirozawa. See id. Member Hirozawa
explained that he did not recuse because, among other things,
he had no involvement with “this matter or any other matter
concerning” New Vista while in private practice and his first
work on this case was more than five years after he left his
previous firm. See SA24–26.

       Following New Vista’s denial of the Fifth Motion for
Reconsideration, we ordered supplemental briefing and
requested a supplemental appendix. See Order, No. 11-3440
(3d Cir. filed Jan. 21, 2016).      Having received this
                             18
supplemental material, we now review the Board’s petition
for enforcement and New Vista’s cross-petitions for review.

                     JURISDICTION

      We have jurisdiction over the Board’s petition for
enforcement pursuant to 29 U.S.C. § 160(e) and jurisdiction
over New Vista’s petitions to review the Board’s final order
pursuant to 29 U.S.C. § 160(f). See 800 River Rd. Operating
Co. LLC v. NLRB, 784 F.3d 902, 906 (3d Cir. 2015).

                STANDARD OF REVIEW

       “The Board’s legal determinations are subject to
plenary review, but we will uphold the Board’s interpretations
of the Act if they are reasonable.” MCPc Inc. v. NLRB, 813
F.3d 475, 482 (3d Cir. 2016) (citing Mars Home for Youth v.
NLRB, 666 F.3d 850, 853 (3d Cir. 2011)). “[W]e will accept
the Board’s factual findings and the reasonable inferences
derived from those findings if they are ‘supported by
substantial evidence on the record considered as a whole.’”
Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592,
606 (3d Cir. 2016) (quoting 29 U.S.C. § 160(f)). Where the
Board has adopted the Regional Director’s findings, we
perform our substantial evidence review of the Regional
Director’s findings. See MCPc, 813 F.3d at 482.

       We review a Board member’s decision whether to
recuse under an abuse-of-discretion standard, reversing only
when a decision is “arbitrary or unreasonable.” 1621 Route
22 W. Operating Co., LLC v. NLRB, 825 F.3d 128, 143–44
(3d Cir. 2016).
                             19
                      DISCUSSION

       To put it mildly, motions for reconsideration have
piled up in this case. The following table shows the tangled
nature of the five motions for reconsideration:




                            20
Orders and Motions under Consideration




              21
      We will address the motions for reconsideration in
reverse chronological order. In resolving all of these
motions, as we do, in favor of the Board, we conclude
that we must remand so that the Board may apply an
appropriate test to determine whether the LPNs have the
authority to discipline other employees.

         I. THE FIFTH MOTION FOR
    RECONSIDERATION (RESOLVED IN THE
      BOARD’S JANUARY 5, 2016 ORDER)
       New Vista’s Fifth Motion for Reconsideration
alleged that the Board’s December 17, 2015 order was
invalid because (1) New Vista did “not even know the
Board was considering the matter”—in its brief, New
Vista frames this as a “lack of transparency,” New Vista
Supp. Br. 5 5—and (2) Member Hirozawa should have
recused. See SA19. Both arguments fail.



5
  We cite to the parties’ responsive briefs following the
order granting rehearing and filed September 29, 2014
(New Vista), November 25, 2014 (NLRB), and
December 9, 2014 (New Vista), as “New Vista
Rehearing Br.,” “NLRB Rehearing Br.,” and “New Vista
Rehearing Reply,” respectively. We cite to the parties’
responsive briefs following the supplementation and
resubmission of the record and filed February 22, 2016
(New Vista), March 23, 2016 (NLRB), and April 6, 2016
                            22
      First, with regard to the Board’s “transparency,”
New Vista now argues that there were two failures: (a)
the Board acted with “great alacrity” in resolving the
Fourth Motion for Reconsideration in its January 5, 2016
order, New Vista Supp. Br. 1–2, and (b) the Board
engaged in unlawful ex parte communication with its
general counsel prior to resolving the Fourth Motion for
Reconsideration, see New Vista Supp. Br. 2–5. The first
argument does not present any legal deficiency and we
do not have jurisdiction to address the second because it
was not presented to the Board. If we had jurisdiction,
we would find this argument unavailing.
       With regard to the Board’s “alacrity” in resolving
the Fourth Motion for Reconsideration or failure to tell
New Vista that it would soon be resolving the Fifth
Motion for Reconsideration, New Vista fails to present
any factual or legal basis for overturning the January 5,
2016 order. First, New Vista provides no legal hook on
which to hang its grievance. And with regard to the
facts, there is substantial evidence to support a finding
that New Vista knew that the Board planned to act
expeditiously. The Board had previously advised this
Court it would resolve New Vista’s outstanding motions
within thirty days. See SA4. Accordingly, the Board is



(New Vista), as “New Vista Supp. Br.,” “NLRB Supp.
Br.,” and “New Vista Supp. Reply,” respectively.
                          23
entitled to the benefit of the presumption of regularity.
See Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir.
2005).

       With regard to the ex parte communications
argument, we lack jurisdiction to consider this argument
because New Vista failed to raise this argument before
the Board. See 29 U.S.C. § 160(e) (“No objection that
has not been urged before the Board, its member, agent,
or agency, shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”); FedEx
Freight, 832 F.3d at 437 (“The crucial question in a
section 160(e) analysis is whether the Board received
adequate notice of the basis for the objection.” (internal
quotation marks omitted) (quoting FedEx Freight, Inc. v.
NLRB, 816 F.3d 515, 521 (8th Cir. 2016))); id. at 448
(“[T]he Court of Appeals lacks jurisdiction to review
objections that were not urged before the Board . . . .”
(quoting Woelke & Romero Framing, Inc. v. NLRB, 456
U.S. 645, 666 (1982))). New Vista only argued in its
motion (and the Board only addressed in its order) that
the Board ruled too expeditiously and without notice.
See SA19; SA23 (addressing only New Vista’s
contentions that it was unaware that its reconsideration
motion was being considered and that the Board ruled on
the reconsideration motion too quickly).



                           24
       Were we to reach New Vista’s ex parte
communication argument, we would rule for the Board.
The Board’s General Counsel alternates between two
dramatically different roles in a labor litigation,
depending on whether it is prosecuting a case before the
Board or representing the Board in court. As a result, the
General Counsel’s communications are only ex parte
when it prosecutes a case—not when it acts as the
Board’s counsel in a court proceeding pursuant to a
petition for enforcement or petition for review. 6 Here,


6
  See 29 C.F.R. § 102.126(a) (2016) (“No interested
person outside this agency shall, in an on-the-record
proceeding of the types defined in § 102.128, make or
knowingly cause to be made any prohibited ex parte
communication to Board agents of the categories
designated in that section relevant to the merits of the
proceeding.”); 29 C.F.R. § 102.127(a) (2016) (“The term
person outside this agency, to whom the prohibitions
apply, shall include . . . the general counsel or his
representative when prosecuting an unfair labor
practice proceeding before the Board pursuant to
section 10(b) of the Act.” (emphasis added)); 29 C.F.R.
§ 102.130 (2016) (“Ex parte communications prohibited
by § 102.126 shall not include[] . . . [o]ral or written
communications from the general counsel to the Board
when the general counsel is acting as counsel for the
Board.” (emphasis added)).
                           25
the allegedly ex parte communications occurred on
November 25, 2015, and December 2, 2015. See New
Vista Supp. Br. 3. Both communications were made
prior to this Court’s remand of the proceeding to the
Board on December 4, 2015. Therefore, at the time the
General Counsel communicated to the Board, the
General Counsel was operating in his capacity as
“counsel for the board.” 29 C.F.R. § 102.130(f) (2016).
By definition, his communications could not have been
ex parte.

       Second, New Vista argues that Member Hirozawa
should have recused for four reasons: (1) Member
Hirozawa worked for Gladstein, Reif & Meginniss, LLP
(“Gladstein”), prior to joining the Board, and Gladstein
served as counsel for the Union in the instant matter;
(2) in his previous position at the Board, Member
Hirozawa worked as chief counsel for Chairman Pearce
who also worked for Gladstein; (3) Member Hirozawa’s
successor as counsel for Chairman Pearce actually
represented the Union in this matter; and (4) Member
Hirozawa may return to Gladstein. See New Vista Supp.
Br. 6–10.

      Member Hirozawa did not abuse his discretion by
choosing not to recuse. See 1621 Route 22 W. Operating
Co., 825 F.3d at 143–44 (“We review an agency
member’s decision not to recuse himself from a
proceeding under a deferential, abuse of discretion

                          26
standard.” (quoting Metro. Council of NAACP Branches
v. FCC, 46 F.3d 1154, 1164 (D.C. Cir. 1995))).

      It was not unreasonable for Member Hirozawa to
conclude that he did not need to recuse because he had
not personally represented the Union in this matter and
had been away from Gladstein for more than five years
before having any involvement in the instant matter. See
SA25; cf. United States v. Dansker, 537 F.2d 40, 53–54
(3d Cir. 1976) (holding that a judge did not need to
recuse when the judge previously investigated a company
with which the criminal defendants were associated
because the criminal defendants’ allegations “merely
evidence ‘an impersonal prejudice, (going) to the judge’s
background and associations rather than his appraisal of
the (movants) personally’”), abrogated on other grounds
by Griffin v. United States, 502 U.S. 46, 57 n.2 (1991).
      New Vista’s argument that Member Hirozawa
should recuse because his successor as chief counsel to
Chairman Pearce represented the Union in this matter
and previously worked with Member Hirozawa provides
no more reason for Member Hirozawa to recuse than the
above-rejected argument that Member Hirozawa worked
at Gladstein.

      Finally, New Vista suggests that Member
Hirozawa should recuse because of the possibility that he
may return to Gladstein. See New Vista Supp. Reply 3
(“[H]e could be back at his old, nine member, firm while
                           27
this case is still sub judice before this court .[sic]”). This
is rank speculation and it cannot therefore create an
appearance of impropriety. See Air Line Pilots Ass’n,
Int’l v. U.S. Dep’t of Transp., 899 F.2d 1230, 1232 (D.C.
Cir. 1990) (holding that “[t]he political branches of
government, so far as we can tell, have never authorized
as an ethical requirement” that the Secretary of
Transportation be “disqualif[ied] from any matter
affecting a client of a prospective employer”).

      Because the Board’s speed in resolving the Fourth
Motion for Reconsideration was not unlawful and
because Member Hirozawa did not abuse his discretion
when he decided not to recuse, the Board correctly
denied New Vista’s Fifth Motion for Reconsideration.

     II. THE SECOND, THIRD, AND FOURTH
    MOTIONS FOR RECONSIDERATION (THE
           DECEMBER 17, 2015 ORDER)

A. The Fourth Motion for Reconsideration
      In its Fourth Motion for Reconsideration, New
Vista argued that, under alternate readings of the Recess
Appointments Clause, either (a) Member Becker was not
a Member when he joined in the December 30, 2011
order    (addressing    the     Second     Motion     for
Reconsideration) or (b) Members Griffin and Block were
not members when they joined in the March 15, 2012
order (addressing the Third Motion for Reconsideration).
                             28
See JA0061. According to New Vista, if the Senate
“recessed” when it began having pro forma sessions,
Becker’s recess appointment from the previous Session
terminated. But, New Vista’s argument goes, if the
Senate were not in recess, Griffin and Block could not be
appointed. See id.

       In its December 17, 2015 order, the Board
(Miscimarra, Hirozawa, McFerran) mooted New Vista’s
Fourth Motion for Reconsideration by reaffirming the
reasoning in its previous orders addressing New Vista’s
Second and Third Motions for Reconsideration. See
SA17–18. The December 17, 2015 panel was lawfully
constituted. Cf. Greater Omaha Packing Co., Inc. v.
NLRB, 790 F.3d 816, 825 (8th Cir. 2015) (holding that an
argument that an earlier decision was “decided by a panel
that lacked a quorum” was not relevant to a particular
later decision made by a panel that “was properly
constituted”).

B. The Third Motion for Reconsideration
       In the Third Motion for Reconsideration, New
Vista argued that the December 30, 2011 order was
invalid because Member Becker’s recess appointment
expired on December 17, 2011 with the recess of the
Senate. See JA0058.
      Following Noel Canning, other courts have held
that Becker’s appointment was valid. We agree. A valid
                           29
recess appointment lasts until the close of the next Senate
session, which, in Becker’s case was January 3, 2012.
Therefore, Becker was a duly appointed member of the
quorum that decided the December 30, 2011 order.

       As noted above, Noel Canning held that, because
Griffin and Block were appointed during recesses of
fewer than ten days, when including pro forma sessions,
their appointments were invalid. See Noel Canning, 134
S. Ct. at 2574. Although the Supreme Court did not rule
directly on the validity of Becker’s appointment, it noted
that the circumstances surrounding his appointment were
different from those that made the appointments of
Griffin and Block invalid: “The President appointed
Member Becker during an intra-session recess that was
not punctuated by pro forma sessions, and the vacancy
Becker filled had come into existence prior to the
recess.” Id. at 2558.

       We agree with our sister courts of appeals that
have decided this question:          Because Becker’s
appointment was made in a recess of more than 17 days,
Member Becker’s appointment was valid. See Mathew
Enter., Inc. v. NLRB, 771 F.3d 812, 814 (D.C. Cir. 2014)
(holding that Member Becker’s appointment “was
constitutionally valid”); Gestamp S.C., L.L.C. v. NLRB,
769 F.3d 254, 257–58 (4th Cir. 2014) (similar);
Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198,
1201 (10th Cir. 2014) (similar).

                            30
        Based on Noel Canning, there can be no question
that Becker’s appointment lasted through the December
30, 2011 order. A recess appointment does not expire
until the end of the next Senate session. See U.S. Const.
art. II, § 2, cl. 3 (“The President shall have Power to fill
up all Vacancies that may happen during the Recess of
the Senate, by granting Commissions which shall expire
at the End of their next Session.” (emphasis added));
Noel Canning, 134 S. Ct. at 2565 (contemplating that
recess appointments would terminate at the end of the
next Senate session).
       Because the Senate did not declare an intersession
recess, Member Becker’s recess appointment expired on
January 3, 2012, when the new congressional session
began. See Dodge of Naperville, Inc. v. NLRB, 796 F.3d
31, 41 (D.C. Cir. 2015) (explaining that Member
Becker’s tenure ran through noon on January 3, 2012); cf.
Noel Canning, 134 S. Ct. at 2558 (“[T]he second session
of the 112th Congress began on January 3, 2012 . . . .”);
NLRB v. Bluefield Hosp. Co., LLC, 821 F.3d 534, 538
(4th Cir. 2016) (“As of January 3, 2012, the terms of
three of the Board’s five members had expired.”).

      Because Member Becker was acting as a validly
appointed Member of the Board when he joined the
December 30, 2011 order, the Board correctly denied the
Third Motion for Reconsideration.


                            31
C. The Second Motion for Reconsideration
      In the Second Motion for Reconsideration, New
Vista stated that the Board’s December 30, 2011 order
was invalid because the third member of the panel,
Chairman Pearce, was recused and therefore could not
delegate his power to the remaining two members of the
Board. See JA055. The Board has stated that Pearce
recused after delegating his power. We conclude the
delegation was permissible.

       On December 30, 2011, when the order was
issued, the Board consisted of three members: Pearce,
Becker, and Hayes. Pearce determined he had a conflict
and therefore could not participate substantively. As
noted above, the Board’s organic statute, as interpreted
by New Process Steel, allows the Board to delegate its
powers to a three-member panel and for two members to
constitute a quorum of a three-member panel. See 29
U.S.C. § 153(b); New Process Steel, 50 U.S. at 681
(“[T]he group quorum provision . . . still operates to
authorize a three-member delegee group to issue a
decision with only two members participating, so long as
the delegee group was properly constituted.”). Thus,
Becker and Hayes could properly enter the December 30,
2011 order if and only if the Board (Pearce, Becker,
Hayes) delegated its power to a three-member panel
(Pearce, Becker, Hayes) from which Pearce then recused.
See D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 353 (5th

                          32
Cir. 2013) (“[T]wo members of that panel may decide a
case ‘if, for example, the third member had to recuse
himself from a particular matter.’ . . . [T]he Board could
validly issue its decision through two of its members,
provided that the Board delegated authority to a three-
member panel and that such a panel still existed when the
two members acted.” (quoting New Process Steel, 560
U.S. at 679)).
       That is what the Board did here. The December
30, 2011 order explained: “Chairman Pearce, who is
recused and did not participate in the underlying
decision, is a member of the present panel but did not
participate in deciding the merits of this proceeding.”
JA0012 n.2 (emphasis added).
      New Vista challenges the Board’s delegation to a
three-member panel of Pearce, Becker, and Hayes on the
ground that Pearce had already recused himself from the
matter and therefore could not have participated in the
delegation of the Board’s power to a three-member panel
and could not be considered a member of the three-
member panel. See New Vista Rehearing Br. 52 (“Since
Chairman Pearce previously recused himself from
consideration of the case, he could not participate in the
decision to delegate to a panel . . . and could not be a




                           33
member of the panel delegated to determine New Vista’s
reconsideration request.” (citation omitted)). 7

      We see no reason to look behind the Board’s
statement that Chairman Pearce participated in the
delegation and then recused from substantive
deliberations.   Other courts have approved this
procedure. Cf. D.R. Horton, 737 F.3d at 354 (“There is


7
  Ordinarily, there is no procedural unfairness when a
conflicted decisionmaker delegates his or her authority to
a neutral decisionmaker—indeed, that is what a recusal
essentially entails. Cf. In re Grand Jury Subpoena,
Judith Miller, 438 F.3d 1141, 1143 (D.C. Cir. 2005) (“As
the investigation proceeded, in December of 2003, the
Attorney General recused himself from participation and
delegated his full authority in the investigation to the
Deputy Attorney General as Acting Attorney General.”);
Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d
534, 539 (4th Cir. 2009) (“The General Counsel, in turn,
recused himself (because of personal ties to the case) and
delegated [the Board’s statutory] power in the case at
hand to the Deputy General Counsel.”); U.S. Office of
Government       Ethics,    OGE      Informal    Advisory
Memorandum 99 X 8, 1999 WL 33308429, at *4 (Apr.
26, 1999) (“Recusal will mean that someone else must
act in the employee’s stead concerning any matters that
could affect the disqualifying interest.”).
                             34
no indication that the Board deviated from its customary
practice of delegating authority to the three-member
panel and allowing two members to decide the case when
Member Hayes recused.”); Brown v. Trueblue, Inc., No.
1:10-CV-0514, 2012 WL 1268644, at *6 n.7 (M.D. Pa.
Apr. 6, 2012) (agreeing that the procedure in D.R. Horton
was valid in light of New Process Steel).
      With Pearce’s involvement, three members of the
Board participated in the delegation of the order denying
the First Motion for Reconsideration. As we next
discuss, the Board correctly denied the First Motion for
Reconsideration.

      III. THE FIRST MOTION FOR
RECONSIDERATION (THE DECEMBER 30, 2011
                 ORDER)
       New Vista’s First Motion for Reconsideration
raised two issues with the August 26, 2011 order. First,
New Vista argued that the August 26, 2011 order was
ultra vires because the term of one of the three Members
signing the order—Chairman Liebman—expired before
the order was mailed and posted on the Board’s website.
See, e.g., JA0052; New Vista Rehearing Br. 32, 40–48.
As we stated in our previous New Vista opinion,
Chairman Liebman was a member of the panel when the
order was decided, and later ministerial acts are irrelevant
to the question of the order’s validity. See New Vista,
719 F.3d at 213–15. Second, New Vista argued that the
                            35
Board failed to distinguish Frito-Lay, a past NLRB
decision that required a hearing when there were changed
circumstances. As the Board has noted in subsequent
cases, Frito-Lay applies only when the changed
circumstances result from a process begun prior to the
representation proceeding before the Board. Here, the
Board did not apply Frito-Lay because it believed the
changed circumstances were in response to the Board
proceedings.      Cf. NLRB v. Sw. Reg’l Council of
Carpenters, 826 F.3d 460, 464 (D.C. Cir. 2016) (“[T]he
Board need not address ‘every conceivably relevant line
of precedent in [its] archives,’ but it must discuss
‘precedent directly on point.’” (quoting Lone Mountain
Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164
(3d Cir. 2013))).
       First, with regard to New Vista’s objection
concerning Chairman Liebman, we previously answered
this objection in our 2013 opinion. See New Vista, 719
F.3d at 213–15. Although we vacated our opinion with
our August 11, 2014 Order granting rehearing in this
case, we reaffirm our earlier reasoning on this issue. We
stated then that the Board’s August 26, 2011 order “is
entitled to a presumption of regularity.” New Vista, 719
F.3d at 214 (internal quotation mark omitted) (quoting
Frisby v. U.S. Dep’t of Hous. & Urban Dev., 755 F.2d
1052, 1055 (3d Cir. 1985)). The order was dated August
26 and states that Chairman Liebman approved the
decision contained therein. See id. The Board’s failure
                           36
to post the order on its website prior to the August 27,
2011 expiration of Chairman Liebman’s term does not
rebut the presumption of regularity. See id. at 214–15.8



8
  In our now-vacated ruling, we cited Braniff Airways,
Inc. v. Civil Aeronautics Board, 379 F.2d 453 (D.C. Cir.
1967), for the proposition that ministerial acts that occur
after a decisionmaker has left power do not deprive the
original decision of effect. See New Vista, 719 F.3d at
214. New Vista argues our earlier reasoning is wrong
because Braniff Airways states that an order is treated as
complete “once all members have voted for an award and
caused it to be issued.” Braniff Airways, 379 F.2d at 459.
New Vista then argues that Braniff supports its position
because there is neither “substantial evidence” of when
Liebman “‘voted for’ or ‘signed’ it and of whether and
when she ‘caused it to be issued.’” New Vista Rehearing
Br. 43. As we explained in our original decision, “the
presumption of regularity requires that we consider the
date as the record of when the delegee group caused the
opinion to be issued, which presupposes that they voted
on or before that date.” New Vista, 719 F.3d at 215.
       Moreover, any distinction between “voting for” the
decision and “causing it to be issued” is irrelevant. For
example, if one orders flowers on February 11 and the
flowers are delivered on Valentine’s Day, that person has
“caused” the flowers to be delivered on February 11,
                            37
       With regard to Frito-Lay, 177 N.L.R.B. 820
(1969), New Vista first argues that the Board “fail[ed] to
hold a hearing on . . . changed factual circumstances” as
required by that decision. New Vista Rehearing Br. 17–
18, 49–51. Later in its brief, however, New Vista
concedes that its real objection is that the Board failed to
“distinguish” Frito-Lay. New Vista Rehearing Br. 50;
see also id. (“This Court requires the NLRB, in order to
dispel any appearance of arbitrariness, to set forth the
reasons for not following its prior decisions and the
distinctions that compel a different result in order to be
enforced.”); New Vista Rehearing Reply 22 (“[T]he


even though there are intermediate steps (credit card
processing, packaging, delivery, etc.) between the order
and the February 14 delivery.
       New Vista flatly misreads the record when it
argues that “the NLRB concedes [A0013] that the
Decision and Order were not ‘ready for issuance’ until
after August 26, 2011.” New Vista Rehearing Br. 45. In
fact, the cited page states: “There is no dispute that the
Board dated the above-referenced Decision and Order
August 26, 2011. Consistent with Board practice, the
date of the Decision and Order reflects the date on which
all members had voted on the final draft. At that point,
the Decision and Order was ready for issuance to the
public and service on the parties.” JA0013 (emphasis
added).
                             38
NLRB has yet to explain why Frito Lay got a hearing and
New Vista did not . . . .”).

       But the Board’s August 26, 2011 order makes
abundantly clear why this is not a situation where Frito-
Lay applies. In Frito-Lay, the relevant changes to the
duties of the employees were implemented based on the
results of a consulting firm’s study of the employer’s
organization that “beg[a]n . . . before this proceeding was
instituted.” Frito-Lay, Inc., 177 N.L.R.B. 820, 821
(1969). The Board found that the Frito-Lay changes
“[were] clearly not for the purpose of avoiding
compliance with the Board’s unit finding.” Id.

       By contrast with Frito-Lay, in the August 26, 2011
order, the Board took notice of the Board’s own
allegations that changes to the LPNs’ duties were made
unlawfully to “prevent them from obtaining union
representation.” New Vista, 357 N.L.R.B. at 715 n.3. 9 In



9
  In response to those allegations, the Board (Hayes,
Griffin, Block) ultimately “found that the employer . . .
altered the duties of licensed practical nurses to convert
them into statutory supervisors in order to prevent them
from obtaining union representation.” See New Vista
Nursing & Rehab., LLC, 358 N.L.R.B. 473 (2012). But
this finding has likely been nullified by Noel Canning, as
acknowledged by the Board, see Colonial Parking, 363
                            39
so doing, the Board cited one of several cases that
distinguishes Frito-Lay on these grounds. See id. at 715
n.5 (citing Telemundo de P.R., Inc. v. NLRB, 113 F.3d
270, 279 (1st Cir. 1997)). Indeed, New Vista’s brief
acknowledges several cases explaining that a business
has to show that the alleged changed circumstances
preexisted the representation proceeding, which New
Vista failed to do here. See Comar, Inc, 349 N.L.R.B.
342, 359 n.36 (Feb. 2, 2007) (“Frito-Lay is also
inapplicable because the invalidation of the unit there
was based on a major overhaul of the employer’s national
management structure, which the Board found
completely eliminated the level of organizational control
upon which the unit was premised and was ‘clearly not
for the purpose of avoiding compliance with the Board’s
unit finding.’”); K Mart Corp., 323 N.L.R.B. 583 (1996);
see also Telemundo de P.R., 113 F.3d at 278 (“An
employer who seeks to overcome that presumption bears
a heavy burden of showing that a legitimate business
necessity arising out of circumstances that were in play
before the representation proceeding concluded forced
him to recast job descriptions.”). Because the Board
found that the facts here were distinguishable from those



N.L.R.B. No. 90, at 1 n.1 (2016), and, in any event, is
now pending before this Court, see No. 12-3524.
Accordingly, we do not rely on this finding.
                           40
in Frito-Lay, there was no need for the Board to invoke
Frito-Lay simply to distinguish it.

  IV. WHETHER THE LPNs ARE SUPERVISORS
        (THE AUGUST 26, 2011 ORDER)
      Having considered all five of New Vista’s motions
for reconsideration, we finally arrive at the merits:
whether the LPNs have the effective authority to
recommend discipline. In its August 26, 2011 order, the
Board applied a test that is incompatible with our
caselaw. Specifically, the Board relied on the evidence
that management independently investigated the LPNs’
written complaints and that few LPNs apparently
submitted written complaints. Our caselaw holds that
those are inappropriate factors on which to rely. We will
therefore remand for further consideration.
        Before discussing how the Board got it wrong, we
first set out important legal factors the Board must follow
on remand. See MCPc, 813 F.3d at 487 (3d Cir. 2016)
(“Because the ALJ and Board’s rejection of these
rationales may have stemmed from confusion as to the
appropriate analytical framework, we address the choice
of test before turning to its application in this case.”).

       Whether LPNs in a given nursing home are
statutory supervisors is a factbound question about which


                            41
different circuits have suggested different rules.10 See
NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 163 (3d
Cir. 1999) (“[R]esolution of the question of whether a
charge nurse exercises independent judgment is
inherently factual in nature, although the cases suggest
that similar organizational structures exist throughout the
nursing home industry.”); see, e.g., Frenchtown
Acquisition Co. v. NLRB, 683 F.3d 298, 308 (6th Cir.
2012) (no supervisory status for nurses who, in a
progressive disciplinary system, had authority only to
“bring [nurses’] aide errors or misconduct to a manager’s
attention,” but not to “decide how to proceed” with that
information); Schnurmacher Nursing Home v. NLRB,
214 F.3d 260, 265–66 (2d Cir. 2000) (“In actual practice,
the CNs appear not to have formally disciplined CNAs or
even to have recommended discipline, albeit, the CNs


10
   As noted above, there is a three-part test to determine
whether an employee is a statutory supervisor: (1) the
employee “hold[s] the authority to engage in any 1 of the
12 listed supervisory functions” in 29 U.S.C. § 152(11),
(2) the employee’s “exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment,” and (3) the employee’s authority
is held “in the interest of the employer.” Ky. River, 532
U.S. at 713. Here, the issue is whether the nurses held
the authority to effectively recommend discipline and
whether they used independent judgment.
                             42
did, from time to time, refer CNA misconduct to a nurse
manager but without recommendation.”).

        Our last word on the subject was in Attleboro
Associates.     In Attleboro, we contrasted existing
precedent from other circuits and found the Attleboro
nurses were supervisors because they had the authority,
when confronted with misbehavior, to make a decision to
do nothing, “counsel an offending CNA directly, or
initiate a progressive disciplinary process that becomes
part of a CNA’s permanent personnel file and could lead
to her termination.” Attleboro, 176 F.3d at 165.
       Attleboro rejected the Board’s position that an
employee does not have authority to effectively
recommend discipline if the employee’s supervisors
independently        investigate       the       employee’s
recommendation. Similar to this case, in Attleboro, the
Board argued: “[T]o be supervisory, the actions taken
‘must not only initiate, or be considered in determining
future disciplinary action, but also . . . must be the basis
for later personnel action without independent
investigation or review by superiors.’” Br. for the
NLRB, Attleboro, 176 F.3d 154 (Nos. 98-6168, 98-6211)
(3d Cir. Dec. 7, 1998), 1998 WL 34176828, at *35
(quoting Passavant Health Care Ctr., 284 N.L.R.B. 887,
889 (1987)).
     Relying heavily on Glenmark Associates, Inc. v.
NLRB, 147 F.3d 333 (4th Cir. 1998), we rejected the
                        43
Board’s position and held that the LPNs had the power to
effectively supervise the CNAs. See Attleboro, 176 F.3d
at 164–66. We noted approvingly that Glenmark
“recognized that the NLRA does not preclude a charge
nurse from having supervisory status merely because her
recommendation is subject to a superior’s investigation.”
Attleboro, 176 F.3d at 164. Thus, we concluded that “an
acceptance of the Board’s reading of the NLRA in this
case ‘would . . . render the statutory phrase “effectively
to recommend” nugatory.’” Attleboro, 176 F.3d at 165–
66 (quoting Caremore, Inc. v. NLRB, 129 F.3d 365, 370
(6th Cir. 1997)).
       In addition to relying on Glenmark, Attleboro
distinguished (1) an Eighth Circuit decision and (2) a
District of Columbia Circuit decision that both held that
nurses were not statutory supervisors. First, in the Eighth
Circuit case, the key fact was that the “nurses’
disciplinary authority consisted ‘solely of the power to
verbally reprimand [nursing assistants].’” Attleboro, 176
F.3d at 165 (quoting Beverly Enters. v. NLRB, 148 F.3d
1042, 1046 (8th Cir. 1998)).11



11
  Our Attleboro precedent noted that the nurses in the
Eighth Circuit case were held not to be “‘an integral part
of the disciplinary process’ and ‘play[ed] no role in
determining whether an employee is disciplined or in
                           44
       Second, in the D.C. Circuit case, “the record did
not reveal any instances where a charge nurse exercised
th[e] authority” to discipline. Attleboro, 176 F.3d at 165
(emphasis added) (discussing Beverly Enters.-Mass., Inc.
v. NLRB, 165 F.3d 960 (D.C. Cir. 1999)). Thus, the D.C.
Circuit held that the nurses’ authority was merely “a
speculative possibility, which absent demonstration, is
simply ‘paper power.’” Beverly Enters.-Mass., 165 F.3d
at 964. This was in contrast to Attleboro where the
nurses “initiate[d] a progressive disciplinary process, and
their decisions to write up a CNA bec[a]me a permanent
part of the CNA’s personnel file.” Attleboro, 176 F.3d at
165.

      Thus, we held that “because Attleboro’s LPN
charge nurses make a decision to counsel an offending
CNA directly, or initiate a progressive disciplinary
process that becomes part of a CNA’s permanent
personnel file and could lead to her termination, the
charge nurses effectively recommend discipline using
independent judgment within the meaning of section
2(11).” Id. Although Attleboro repeatedly points out that
the progressive disciplinary process employed in that



determining the type of discipline to be imposed.’”
Attleboro, 176 F.3d at 165 (quoting Beverly Enters., 148
F.3d at 1046). Here, the Board arguably made those
same findings.
                           45
case could ultimately lead to termination, it is clear that a
nurse can be a statutory supervisor if he or she has the
authority to effectively recommend less onerous
discipline. For instance in Warner Co. v. NLRB, we held
that “sending a[n employee] home is discipline”—as was
“cal[ing] the plant manager’s attention to instances of . . .
violations of the work rules.” 365 F.2d 435, 439 (3d Cir.
1966). This is also implicit in the statutory text because
29 U.S.C. § 152(11) states, among other things, that a
supervisor can “hire, transfer, suspend, lay off, . . .
discharge, . . . or discipline other employees.” Were
“discipline” the same as “lay[ing] off” or
“discharg[ing],” the word “discipline” would have been
mere surplusage. See Langbord v. U.S. Dep’t of
Treasury, 832 F.3d 170, 182 (3d Cir. 2016) (en banc)
(“We assume . . . that every word in a statute has
meaning and avoid interpreting one part of a statute in a
manner that renders another part superfluous.” (quoting
Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539
F.3d 199, 210 (3d Cir. 2008))).
      Following and citing Attleboro, we further held in
another case that the “number of instances” of
supervision does not determine whether employees are
supervisors. See NLRB v. Prime Energy Ltd. P’ship, 224
F.3d 206, 210 (3d Cir. 2000) (“The mere fact that the
regional director found only one instance where a Shift
Supervisor sent a Plant Operator home is hardly a
reasonable basis to conclude that the authority was
                             46
lacking. It simply suggests that the authority was rarely
needed.”).

        Thus, applying Attleboro, we recognize three facts
that together may show an employee is a statutory
supervisor: (1) the employee has the discretion to take
different actions, including verbally counseling the
misbehaving employee or taking more formal action, see
Attleboro, 176 F.3d at 165 (“Attleboro’s LPN charge
nurses make a decision to counsel an offending CNA
directly, or initiate a progressive disciplinary
process . . . .”); (2) the employee’s actions “initiate” the
disciplinary process, see id. (“The circumstances clearly
are different here inasmuch as Attleboro’s charge nurses
initiate a progressive disciplinary process . . . .”); and
(3) the employee’s action functions like discipline
because it increases severity of the consequences of a
future rule violation, see id. (“[T]heir decisions to write
up a CNA become a permanent part of the CNA’s
personnel file and could lead to the CNA’s
termination.”).
      And, from Attleboro and Prime Energy, we also
derive two facts that do not disprove supervisory status:
(1) whether a nurse’s supervisor undertakes an
independent investigation, see Attleboro, 365 F.3d at 164
(“[T]he      ‘relevant    consideration    is    effective
recommendation or control rather than final
authority.’ . . . [T]he NLRA does not preclude a charge

                            47
nurse from having supervisory status merely because her
recommendation is subject to a superior’s investigation.”
(citations omitted) (describing Glenmark)); and
(2) whether the employees exercise their supervisory
authority only a few times (or even just one time), see
Prime Energy Ltd. P’ship, 224 F.3d at 210.

       In the case before us, the Board relied on a four-
part test that conflicts with the above principles. The
Board derived its test from an NLRB opinion (later
vacated) to determine whether the nurses here were
statutory supervisors: “To prevail, the Employer must
prove that: (a) LPNs submit actual recommendations, and
not merely anecdotal reports, (b) their recommendations
are followed on a regular basis, (c) the triggering
disciplinary incidents are not independently investigated
by superiors, and (d) the recommendations result from
the LPNs’ own independent judgment.” JA873 (citing
ITT Lighting Fixtures, 265 N.L.R.B. 1480, 1481 (1982),
vacated on other grounds sub nom. ITT Lighting
Fixtures, Div. of ITT Corp. v. NLRB, 712 F.2d 40 (2d Cir.
1983)).12



12
   In its brief in this case, the Board argues a rationale
more consistent with Attleboro and other circuits’
caselaw.      But the Board should have considered
Attleboro and other cases when it made its original
                             48
ruling—not after filing a petition for enforcement. See
Borovsky v. Holder, 612 F.3d 917, 921 (“The Chenery
doctrine prevents a court from affirming an agency’s
inadequately justified decision ‘by substituting what it
considers to be a more adequate or proper basis’ for the
decision.” (quoting SEC v. Chenery Corp., 332 U.S. 194,
196 (1947))); NLRB v. P*I*E Nationwide, Inc., 923 F.2d
506, 518 (7th Cir. 1991) (“The Board’s appellate counsel
cannot fill in the holes in the agency’s decision; stated in
another manner, it is the Board’s order, not its petition
for enforcement, that is the subject of our review.
Accordingly, we may not accept appellate counsel’s post
hoc rationalizations for agency action.” (citations and
internal quotation marks omitted)); Henry J. Friendly,
Chenery Revisited: Reflections on Reversal and Remand
of Administrative Orders, 1969 Duke L.J. 199, 222
(“Where the agency has rested [a] decision on an
unsustainable reason, the court should generally reverse
and remand even though it discerns a possibility, even a
strong one, that by another course of reasoning the
agency might come to the same result.”).
For the same reason, the Dissent’s reliance on Mars
Home for Youth v. NLRB, 666 F.3d 850 (3d Cir. 2011), is
unavailing. The dissent’s focus on the same conclusion
being reached by our court in Mars Home and by the
NLRB in this case is irrelevant to the question as to
whether the NLRB offered correct reasoning. The NLRB
                              49
         Under controlling law, remand is appropriate
where, as here, the Board used the wrong legal standard
and remand would not be futile. See, e.g., MCPc, 813
F.3d at 482 (“[W]e will remand for further proceedings
because the Board failed to apply the correct legal
test . . . .”); id. at 490 (“[W]hether or not we agreed that
substantial evidence in the record supported the Board’s


did not. The NLRB did not rely on Mars Home or any
post-Attleboro case in its explanation for what effectively
recommending discipline meant. Instead, it relied on
pre-Attleboro reasoning that we held was unreasonable in
Attleboro. Just as the NLRB cannot rely on post hoc
reasoning, the Dissent cannot now use Mars Home to fill
in the hole in the NLRB’s decision. See ICC v. Bhd. of
Locomotive Eng’rs, 472 U.S. 270, 283 (1987) (“[A]
court . . . may not affirm on a basis containing any
element of discretion—including discretion to . . .
interpret statutory ambiguities—that is not the basis the
agency used, since that would remove the discretionary
judgment from the agency to the court.”). We agree that
it may be inefficient to make the NLRB interpret the
statute anew even though it may ultimately reach the
same result, but that is a function of Chenery, which we
must apply.       Cf. Margaret B. Kwoka, Deference,
Chenery, and FOIA, 73 Md. L. Rev. 1060, 1109–10
(2014) (“[C]ritics argue that the Chenery principle leads
to inefficient proceedings . . . .”).
                             50
ultimate disposition, our disagreement with [the] Board’s
rationale would prevent us from affirming.”); NLRB v.
Alan Motor Lines Inc., 937 F.2d 887, 892 (3d Cir. 1991)
(“If we sustained the Board’s decision based on a
rationale that the Board might have adopted but did not
adopt, we would ‘deprecate the administrative process
for [we] would propel the court into the domain which
Congress has set aside exclusively for the administrative
agency.’” (quoting NLRB v. Met. Life Ins. Co., 380 U.S.
438, 444 (1965))). By relying on a vacated NLRB
precedent requiring the nurses’ recommendations be
implemented without any independent investigation and
relying heavily on the fact that the LPNs did not
frequently exercise their alleged supervisory power, the
Board applied the wrong legal standard.
       Nor would a remand be futile. Neither side has
shown it is entitled to victory on the present record. On
the one hand, the Board’s findings are almost entirely
inapt because they are directed to the wrong test. On the
other hand, New Vista’s entitlement to victory is unclear.
      The Board has failed to show it is entitled to
enforcement because Director Lightner’s findings
addressed to the wrong test are largely inapplicable to the
correct test. See SEC v. Chenery Corp., 318 U.S. 80, 94
(1943) (“The Commission’s action cannot be upheld
merely because findings might have been made and
considerations disclosed which would justify its order as

                            51
an appropriate safeguard for the interests protected by the
Act. There must be such a responsible finding.”); cf.
NLRB v. Local 483, Int’l Ass’n of Bridge, Structural &
Ornamental Ironworkers, 672 F.2d 1159, 1165 (3d Cir.
1982) (“If such findings are supported by substantial
evidence on the record as a whole, the Board’s remedial
order would be enforceable by this court. Such findings
have not been made by the Board here.”).
       For instance, Director Lightner’s findings go to
whether the LPNs’ written notices were independently
investigated, whether LPNs ultimately decided the level
of discipline, or whether LPNs frequently exercised
authority to effectively recommend discipline. 13 As




13
   Among those findings are:
- “[D]iscipline issued to a CNA is investigated by unit
managers or upper management.” JA0861.
- “The LPN becomes involved only as a fact witness to
the underlying incident. . . . LPNs are simply reporting
factual findings to their superiors without any specific
recommendation for disciplinary action.” JA0861, 0873.
- “LPNs rarely if ever checkmark the penalty level of
discipline because they do not have access to employees’
personnel files and do not know where the employee
stands in the progressive disciplinary scheme.” JA0861.
                             52
such, they are irrelevant. Indeed, some findings suggest
that the nurses may be supervisors under Attleboro. See,
e.g., JA0856 (“If a nurse believes that a CNA has
violated the Employer’s work rules, the nurse has the
discretion to (1) do nothing; (2) verbally counsel the
employee without issuing any write-up; or (3) report
misconduct to either the nursing supervisor or unit
manager.” (emphasis added)). Because the factual
findings do not support the necessary legal analysis, we
lack the basis to enforce the Board’s decision.




- LPNs are not told “the outcome of a disciplinary
matter” and do not attend meetings where the “discipline
is served.” JA0861–62.
- “The DON or other upper management officials make
all final disciplinary decisions.” JA0862.
- “The record shows LPN involvement in actual
progressive discipline of CNAs 33 times over a 6 ½ year
period. . . . Even assuming arguendo that the actions of
the LPNs cited by the Employer constituted discipline or
the effective recommendation of discipline, the record
still yields a minor number of instances over a six-year
period in which these actions were exercised. . . . I am
reluctant to extinguish Section 7 rights here on such a
slender record of disciplines over a six year stretch.”
JA0871, 0876.
                              53
       On the other hand, the record does not permit us to
conclude that New Vista has proven the nurses are
statutory supervisors. See Ky. River, 532 U.S. at 712 (“In
the unfair labor practice proceeding, therefore, the burden
remains on the employer to establish the excepted status
of these nurses.”). For instance, it may well be that the
notices issued by nurses do not become permanent parts
of the CNAs’ files and are not used to increase the
severity of the discipline. Indeed, the paucity of
disciplinary forms presented suggests that they are not
kept in employees’ files. Additionally, we are not
unmindful of other circuits’ “reportorial” cases holding
that where nurses merely report factual information
without actually recommending discipline, the employer
fails to show that the nurses have the authority to
recommend discipline. See, e.g., Schnurmacher Nursing
Home, 214 F.3d at 265–66 (“In actual practice, the CNs
appear not to have formally disciplined CNAs or even to
have recommended discipline, albeit, the CNs did, from
time to time, refer CNA misconduct to a nurse manager
but without recommendation.”). Yet, any finding that the
nurses here were merely “reportorial” must be reconciled
with the demands of Attleboro. See Attleboro, 176 F.3d
at 159 (noting that the Board’s “regional Director
concluded that the LPN charge nurses merely were
serving in a ‘reportorial’ and not supervisory



                            54
capacity”). 14 While the Board’s finding that the LPNs
had discretion in how they handled misbehaving CNAs, a


14
  The Board did not request deference to their reading of
the statute under Chevron, U.S.A., Inc. v. Nat’l Res. Def.
Council, Inc., 467 U.S. 837 (1984), or Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967 (2005), as they did in Palmetto Prince George
Operating, LLC v. NLRB, 841 F.3d 211, 216–17 (4th Cir.
2016) (deferring to the Board’s interpretation of the
NLRA under Chevron and Brand X to hold that nurses
were not supervisors). Had they done so, it would not
have availed them here.
Unlike in Palmetto Prince George, the Board has not
pointed to a new interpretation after the relevant
controlling precedent. See Palmetto Prince George, 841
F.3d at 215–16 (relying on a 2006 NLRB interpretation
instead of its 1998 precedent); see also Levy v. Sterling
Holding Co., LLC, 544 F.3d 493, 502 (3d Cir. 2008)
(“[T]he Supreme Court left no doubt that if a court of
appeals interprets an ambiguous statute one way, and the
agency charged with administering that statute
subsequently interprets it another way, even that same
court of appeals may not then ignore the agency’s more-
recent interpretation.” (emphasis added)). Here, the
Board relies on an interpretation that we already held was
an unreasonable interpretation of the statute in Attleboro.
NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154 (3d Cir.
                            55
1999) (“[W]e see no need to reduce the deference that we
normally afford the Board, as we find the Board’s
interpretation of ‘independent judgment’ inconsistent
with the NLRA under the traditional deferential standard
of review . . . .” (citing NLRB v. Health Care & Ret.
Corp. of Am., 511 U.S. 571, 576 (1994)). Chevron or
Brand X deference would not allow us to adopt an
unreasonable interpretation. See Brand X, 545 U.S. at
980 (“In Chevron, this Court held that ambiguities in
statutes within an agency’s jurisdiction to administer are
delegations of authority to the agency to fill the statutory
gap in reasonable fashion.”).
This case is also unlike Mars Home for Youth, on which
the dissent heavily relies. The Mars Home Regional
Director’s opinion is in marked contrast to the one in this
case. See Mars Home for Youth, Case No. 6-RC-12692
(Dec. 3, 2009) (regional director’s decision), available at
http://apps.nlrb.gov/link/document.aspx/09031d45802a3
b2c. In Mars Home, the regional director set forth
detailed analysis based on a series of post-Attleboro
cases, primarily Berthold Nursing Care Ctr., Inc., 351
N.L.R.B. 27 (2007), cited as Oak Park. Because reliance
on Oak Park is actually a new interpretation, the NLRB
would have been entitled to Brand X deference in that
case. We further note (a) that Petitioner Mars Home for
Youth did not cite Attleboro and therefore the case was
not before the court, and (2) Mars Home for Youth did
                            56
remand would not be futile because the Board could find,
for instance, that the LPNs do not “initiate a progressive
disciplinary process.” Attleboro, 176 F.3d at 165.

      We must remand.
                     CONCLUSION

       For the reasons stated above, we will vacate the
Board’s August 26, 2011 order and remand for the Board to
apply the correct legal test on the merits issue.




not analyze the definition of “effectively to recommend”
“discipline,” 29 U.S.C. § 152(3), the key issue here.
                            57
GREENAWAY, JR., concurring in part and dissenting in part.


       This case turns on the National Labor Relations Act’s
(“NLRA”) definition of a “supervisor.” To qualify as a
supervisor, an employee must have the authority to exercise
independent judgment in the performance of a supervisory
function in the interest of the employer. NLRB v. Health Care
& Ret. Corp. of Am., 511 U.S. 571, 573–74 (1994). This case
concerns our interpretation of independent judgment generally
and specifically in the context of recommending discipline.

       In Mars Home for Youth v. NLRB, 666 F.3d 850 (3d Cir.
2011), we approved of the general and specific interpretations
of independent judgment at issue here. With only passing
reference to Mars Home, the Majority rejects the general and
specific interpretations of independent judgment before us.
Instead of relying on Mars Home, the Majority rests its
decision on NLRB v. Attleboro Associates, Ltd., 176 F.3d 154
(3d Cir. 1999), and concludes, in a final footnote, that
Attleboro prevents us from coming to the very conclusion that
our brothers subsequently came to in Mars Home.

       This argument lacks merit for two reasons. First, it
misreads Attleboro by erroneously concluding that it rejected
the general and context specific interpretations of independent
judgment at issue here. Second, it applies the incorrect
standard of deferential review to the administrative decision.
Because the Majority’s opinion misconstrues Mars Home,
misreads Attleboro, and applies the wrong standard of review,
I respectfully dissent. 1


1
    I concur with Sections I, II, and III.




                                   1
                            I.

        In addressing New Vista’s challenge to this NLRB
decision, we must apply the familiar two-step analysis of
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). See, e.g., Edward J. DeBartolo
Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council,
485 U.S. 568, 574 (1988) (“[S]tatutory interpretation by the
[National Labor Relations] Board would normally be entitled
to deference unless that construction were clearly contrary to
the intent of Congress.” (citing Chevron, 467 U.S. 837 at 842–
43, and n. 9)). “If Congress has directly and clearly spoken to
the precise question at issue, our Chevron analysis is complete
at Step One, and Congress’s unambiguously expressed intent
controls.” Helen Mining Co. v. Elliott, 859 F.3d 226, 234 (3d
Cir. 2017).

        “[I]f the statute is silent or ambiguous with respect to
the specific issue,” we move to the second step of the inquiry
and determine whether Congress expressly or implicitly
delegated authority. Chevron, 467 U.S. at 842–43. “If
Congress has explicitly left a gap for the agency to fill,” “[s]uch
legislative regulations are given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to the statute.”
Id. at 843–44. If “the legislative delegation to an agency on a
particular question is implicit rather than explicit,” “a court
may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an
agency.” Id. at 844.

       We follow these steps even if we have already
interpreted the statute unless our earlier decision decided the
case on the first step. Indeed, in National Cable &
Telecommunications Association v. Brand X Internet Services,




                                 2
the Supreme Court held that “[a] court’s prior judicial
construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court
decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for
agency discretion.” 545 U.S. 967, 982 (2005). 2

                          II.

       We must decide this case under Chevron’s most
deferential standard of review. This case hinges on the
NLRA’s definition of a supervisor. That statutory text
provides as follows:

      The term “supervisor” means any individual
      having authority, in the interest of the employer,
      to . . . discipline other employees . . . 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.


2
  See also Levy v. Sterling Holding Co., LLC, 544 F.3d 493,
502 (3d Cir. 2008) (“[T]he Supreme Court left no doubt that if
a court of appeals interprets an ambiguous statute one way, and
the agency charged with administering that statute
subsequently interprets it another way, even that same court of
appeals may not then ignore the agency’s more-recent
interpretation.”).




                                3
29 U.S.C. § 152(11). To determine whether an employee
qualifies as a supervisor, we must answer three questions:
“First, does the employee have authority to engage in 1 of the
12 listed activities? Second, does the exercise of that authority
require the use of independent judgment? Third, does the
employee hold the authority in the interest of the employer?”
Health Care & Ret. Corp. of Am., 511 U.S. at 573–74 (internal
quotation marks omitted). Answering affirmatively to each
and every question makes an employee a supervisor. This case
relates to the independent judgment prong of the inquiry.

       Following the steps established by the Supreme Court
in Chevron, we must first ask, has Congress “directly and
clearly spoken to the precise question at issue[?]” Helen
Mining Co., 859 F.3d at 234. The Supreme Court has held that
Congress has not spoken clearly on the definition of
independent judgment. In NLRB v. Kentucky River Community
Care, Inc., the Supreme Court found that “it is certainly true
that the statutory term ‘independent judgment’ is ambiguous
with respect to the degree of discretion required for
supervisory status” and that “[i]t falls clearly within the
Board’s discretion to determine, within reason, what scope of
discretion qualifies.” 532 U.S. 706, 713 (2001) (emphasis in
original).

        Because “the statute is silent or ambiguous with respect
to the specific issue,” we move to the second step of the inquiry
and determine whether Congress expressly or implicitly
delegated authority. Chevron, 467 U.S. at 842–43. The
Supreme Court has held that Congress expressly delegated the
NLRA’s interpretation to the NLRB. In ABF Freight System,
Inc. v. NLRB, the Supreme Court noted that because the
NLRB’s interpretation of the NLRA “involves that kind of
express delegation, the Board’s views merit the greatest




                               4
deference.” 510 U.S. 317, 324 (1994) (emphasis added). As a
result, “[S]tatutory interpretation by the Board would normally
be entitled to deference unless that construction were clearly
contrary to the intent of Congress.” Edward J. DeBartolo
Corp., 485 U.S. at 574 (citing Chevron, 467 U.S. 837 at 842–
43, and n. 9). Cf. Kentucky River Cmty. Care, Inc., 532 U.S. at
715 (refusing to defer to an NLRB interpretation that was
“directly contrary to the text of the statute” (emphasis added)).

                               A.

       In light of this framework, we must defer to the NLRB’s
interpretation of independent judgment because it is not
“arbitrary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 843–44.

        In this case, the Regional Director followed a four step
process. First, the Regional Director provided the following
definition of a statutory supervisor:

       Individuals are “statutory supervisors if: (1) they
       hold the authority to engage in any one of the 12
       listed supervisory functions, (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.”

App. 863 (Kentucky River Cmty. Care, Inc., 532 U.S. at 713).

       Second, the Regional Director determined whether the
individuals had the authority to engage in supervisory
functions, such as assigning work, responsibly directing,




                               5
disciplining, effectively recommending          discipline,   and
removing other employees from the floor.

       Third, the Regional Director, relying on Oakwood
Healthcare, Inc., 348 N.L.R.B. 686 (2006), defined
independent judgment: “The Board found that the relevant test
for supervisory status utilizing independent judgment is that
‘an individual must at minimum act, or effectively recommend
action, free of the control of others and form an opinion or
evaluation by discerning and comparing data.’” App. 866
(quoting Oakwood Healthcare, 348 N.L.R.B at 693).

       Fourth, the Regional Director found, in light of
Oakwood Healthcare, that the LPNs did not exercise
independent judgment in performing supervisory functions.
With regard to effectively recommending discipline, the
Regional Director provided the following test: “To prevail, the
Employer must prove that: (a) LPNs submit actual
recommendations, and not merely anecdotal reports, (b) their
recommendations are followed on a regular basis, (c) the
triggering disciplinary incidents are not independently
investigated by superiors, and (d) the recommendations result
from the LPNs’ own independent judgment.” App. 873.

        The Regional Director denied the employer’s claims on
the third prong of this test. Specifically, he concluded that the
employer had not shown that LPNs used independent judgment
in performing this supervisory function because the employer
did not prove that the purported supervisors’ managers
followed their discipline recommendations without
independently investigating them. App. 874 (“[T]he record is
silent as to whether Roldan’s superiors conducted an
independent investigation of her claims . . . .”); id. at 874 (“No
written documentary evidence regarding this [termination




                                6
recommendation] is part of the record.”). He further noted that
some of the employer’s own witnesses undermined the
employer’s claims and one of the LPNs’ managers “testified
that when she receives a discipline form from an LPN, she will
ask for statements from the reporting nurse, the offending aide
and any eyewitnesses.” Id. at 873. See also id. (explaining that
another LPN manager independently investigated a discipline
recommendation made by an LPN).

                               B.

       In Mars Home, we approved of the three contested
elements of the decision at bar. 3 First, we observed that
“[t]here is a three-part test for determining supervisory status”
and quoted the same test as the Regional Director did in the
decision under review. Id. at 853–54 (quoting Kentucky River
Cmty. Care, Inc., 532 U.S. at 713).

       Second, we, like the Regional Director in the case
before us, adopted Oakwood Healthcare’s general
interpretation of independent judgment and held, “A
supervisor exercises independent judgment when he acts or
recommends action ‘free of the control of others and form[s]
an opinion or evaluation by discerning and comparing data.’”



3
  The Majority observes that the Petitioner in “Mars Home for
Youth did not cite Attleboro . . . .” Maj. Op. at 57 n. 14. This
comes as little surprise. As explained in this and the following
sections, the NLRB decision reviewed by Attleboro lies in
stark contrast to the one before us in Mars Home and the
analogue we judge today.




                               7
Id. at 853–54 (quoting Oakwood Healthcare, 348 N.L.R.B. at
692–93).

       Third, we “considered Mars Home’s remaining”
challenges to the Regional Director’s decision and “f[ou]nd
them without merit.” Id. at 855. This final determination
matters because the employer specifically objected to the
Regional Director’s conclusions about the employees’
authority to use their independent judgment in effectively
recommending discipline, Petitioner’s Br. at 51–60, Mars
Home for Youth v. NLRB, Nos. 11–1250, 11–1590, 666 F.3d
850 (3d Cir. 2011), and because the Regional Director’s
decision on recommending discipline closely paralleled the
decision at bar. 4

        Indeed, the Regional Director in Mars Home provided
the following test for deciding whether an employee exercised
independent judgment in effectively recommending discipline:

       In summary, a putative supervisor’s preparation
       of written counseling forms, write-ups or reports
       does not establish Section 2(11) authority, even
       if such documentation is part of a progressive
       disciplinary process, in the absence of evidence

4
  The Majority claims that “Mars Home for Youth did not
analyze the definition of ‘effectively to recommend’
‘discipline,’ 29 U.S.C. § 152(3) . . . .” Maj. Op. at 57 n. 14.
Perplexingly, it does not explain how we could “consider[]
Mars Home’s remaining claims,” including its challenge to the
Board’s decision about effectively recommending discipline,
and “find [those claims] without merit,” Mars Home, 666 F.3d
at 855, without analyzing them.




                              8
       that 1) the putative supervisor has the discretion
       to decide whether to document the infractions
       (independent judgement [sic]); 2) the document
       is an “integral part of the [e]mployer’s
       progressive system in that they are used to
       document each phase of the disciplinary process
       and routinely result in actual discipline”
       (imposition of discipline); and 3) the
       documentation is accepted by higher
       management without independent investigation.

Regional Director’s Decision and Direction of Election at 29–
30, Mars Home for Youth v. NLRB, Nos. 11–1250, 11–1590,
666 F.3d 850 (3d Cir. 2011) (“Mars Home Regional Director
Decision”).

       This test mirrors the test used by the Regional Director
in the decision under review. Compare Mars Home Regional
Director Decision at 29 (“1) the putative supervisor has the
discretion to decide whether to document the infractions
(independent judgement [sic])”) with App. 837 (“(d) the
recommendations result from the LPNs’ own independent
judgment.”); compare Mars Home Regional Director Decision
at 29–30 ( 2) the disciplinary reports “routinely result in actual
discipline”) with App. 837 (“(b) their recommendations are
followed on a regular basis”); compare Mars Home Regional
Director Decision at 30 (“3) the documentation is accepted by
higher management without independent investigation”) with
App. 837 (“(c) the triggering disciplinary incidents are not
independently investigated by superiors”).

       Like the Regional Director in the case at bar, the
Regional Director in Mars Home applied this test by finding
that two employees did not qualify as supervisors because their




                                9
supervisors independently investigated their recommendations
for discipline. For one, the Regional Director concluded that
“Employer has failed to sustain its burden of proof by a
preponderance of the evidence that [alleged supervisor]
effectively recommended the termination of [an employee]
within the meaning of Section 2(11) of the Act” because
“[a]fter [the alleged supervisor’s] report was received by [the
alleged supervisor’s manager], both [the alleged supervisor’s
manager] and [another manager] set up a time to talk by
telephone with [the employee] about the matter in order to
investigate the matter further.” Mars Home Regional Director
Decision at 34. For the other alleged supervisor, the Regional
Director came to the same conclusion because “the record is
clear that the Employer has failed to sustain its burden of proof
that the sexual harassment incident evinces Section 2(11)
authority by the [alleged supervisor] to effectively recommend
discipline and/or discharge” because “management officials
made an independent investigation before reaching its
termination decision.” Id. at 35.

       Thus, we have approved of the NLRB’s current
interpretation of independent judgment both in general and in
the context of recommending discipline. As a result, these
interpretations are not “arbitrary, capricious, or manifestly
contrary to the statute.” Chevron, 467 U.S. at 843–44. The
law requires me to defer to these NLRB interpretations and
dismiss New Vista’s challenge. 5


5
  Reilly v. City of Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017)
(“In our Court ‘the holding of a panel in a precedential opinion
is binding on subsequent panels. Thus, no subsequent panel
overrules the holding in a precedential opinion of a previous
panel. Court en banc consideration is required to do so.’”




                               10
                               III.

        The Majority takes a different approach. It does not rely
upon Mars Home. Instead, the Majority holds that the
Regional Director’s decision is “squarely at odds with our
controlling precedent—specifically NLRB v. Attleboro
Associates, Ltd., 176 F.3d 154 (3d Cir. 1999),” and “remand[s]
this case to the Board to allow it to determine whether the LPNs
have the authority to effectively recommend discipline under
Attleboro.” Maj. Op. at 5. See also Id. at 47–48 (explaining
Attleboro’s interpretation of supervisor in the context of
recommending discipline).

        In its ultimate footnote, the Majority cites Chevron and
attempts to shoehorn its decision into this framework by
writing that “the Board relies on an interpretation that we
already held was an unreasonable interpretation of the statute
in Attleboro” and that “Chevron or Brand X deference would
not allow us to adopt an unreasonable interpretation.” Maj. Op.
at 57 n. 14. 6 This attempt fails.


(quoting Policy of Avoiding Intra-circuit Conflict of Precedent,
Internal Operating Procedures of the Third Circuit Court of
Appeals § 9.1)).
6
  In this footnote, the majority implies, in dicta, that the Board
waived a deference based argument. The briefing does not
support this assertion. New Vista conceded that “[t]he
NLRB’s legal determinations are subject to plenary review, but
with due deference to the NLRB’s expertise in labor matters
[and] [t]he Court upholds the NLRB’s interpretations of the
NLRA if they are reasonable and consistent with the NLRA.”
Petitioner’s Br. at 53–54. The NLRB agreed with New Vista’s




                               11
                              A.

        The Majority misreads Attleboro. The Majority holds
that “the Board relies on an interpretation that we already held
was an unreasonable interpretation of the statute in Attleboro.”
Maj. Op. at 57 n. 14. The Majority does not distinguish
between the general and context specific interpretations of
independent judgment or explain which interpretation
Attleboro held was unreasonable. To prove that Attleboro did
not regard any of these interpretations as unreasonable, I
analyze each of them in turn.

       Attleboro did not reject the Regional Director’s general
interpretation of independent judgment. It refused to defer to
the NLRB’s “conclu[sion] that the ‘discharge of duties
involving professional judgment and discretion may
nonetheless be “routine” within the meaning of Section 2(11)’
and not the exercise of ‘independent judgment.’” Attleboro,
176 F.3d at 170. Here, the Regional Director “found that the
relevant test for supervisory status utilizing independent
judgment is that ‘an individual must at minimum act, or
effectively recommend action, free of the control of others and
form an opinion or evaluation by discerning and comparing
data.’” App. 866 (citing Oakwood Healthcare, 348 N.L.R.B at
693). This interpretation springs from Oakwood Healthcare,

concession, noting, “Whether an individual is a statutory
supervisor is a question of fact particularly suited to the
Board’s expertise and therefore subject to limited judicial
review.” Respondent’s Br. at 18. Even if the parties did not
raise it, this question constitutes an antecedent legal question
that we must decide. See Haybarger v. Lawrence Cty. Adult
Probation & Parole, 667 F.3d 408, 412–13 (3d Cir. 2012).




                              12
348 N.L.R.B. at 692–93, a decision issued seven years after
Attleboro. As a result, Attleboro did not find that the NLRB’s
general interpretation of independent judgment was
unreasonable.

       Furthermore, Attleboro did not hold that the particular
context specific interpretation of independent judgment at
issue here was unreasonable.       Attleboro’s decision on
effectively recommending discipline consists of three parts.
None of these parts support the Majority’s position.

       First, we noted that the Regional Director found that an
LPN could not exercise independent judgment “because the
Director of Nurses reviewed the recommendations and
sometimes would investigate an incident before acting upon a
recommendation . . . .” Attleboro, 176 F.3d at 164 (emphasis
added). Then, “We h[e]ld this application of the term
‘independent judgment’ to the facts of this case erroneous as a
matter of law.” Id. (emphasis added).

        This holding does not substantiate the Majority’s
position. Unlike in Attleboro, we now review a Regional
Director decision that omitted “sometimes” and stated the rule
in more absolute terms: “To prevail, the Employer must prove
that . . . the triggering disciplinary incidents are not
independently investigated by superiors . . . .” App. 873. In
applying this rule, the Regional Director could not find a single
example of when the employer accepted a discipline
recommendation without investigating it. Id. at 873–74. As a
result, the Regional Director found that the LPNs could not
have exercised independent judgment because the employer
always—not sometimes—investigated the recommendation
before accepting it. Because the context specific interpretation
of independent judgment here differs from the one rejected by




                               13
Attleboro, Attleboro could not have dismissed—let alone
considered—the context specific interpretation of independent
judgment at issue here.

       Second, Attleboro “h[e]ld that because Attleboro’s LPN
charge nurses . . . initiate a progressive disciplinary process that
becomes part of a CNA’s permanent personnel file and could
lead to her termination, the charge nurses effectively
recommend discipline using independent judgment within the
meaning of section 2(11).” Attleboro, 176 F.3d at 165.

       This interpretation does not foreclose all other
interpretations. “[T]he statutory term ‘independent judgment’
is ambiguous with respect to the degree of discretion required
for supervisory status” and “[i]t falls clearly within the Board’s
discretion to determine, within reason, what scope of discretion
qualifies.” Kentucky River Cmty. Care, Inc., 532 U.S. at 713
(emphasis in original). We have previously held that
“Congress has not spoken on the ‘precise question’ before us”
when a statutory term “is susceptible to multiple
interpretations, and the statutory language does not directly
address” the issue presented. Egan v. Del. River Port Auth.,
851 F.3d 263, 270 (3d Cir. 2017). 7 Because independent
judgment is an ambiguous term and because ambiguous terms
are susceptible to multiple meanings, independent judgment is
susceptible to multiple meanings. As a result, our previous


7
  See also Chevron, 467 U.S. at 865 n. 11 (“The court need not
conclude that the agency construction was the only one it
permissibly could have adopted to uphold the construction, or
even the reading the court would have reached if the question
initially had arisen in a judicial proceeding.”).




                                14
interpretation of “independent judgment” does not prohibit all
other interpretations.

       Third, in Attleboro we provided a detailed synopsis of
Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 342 (4th
Cir. 1998), noted that “[t]he situation at Attleboro is a hybrid
of those of the nursing homes in Glenmark,” Attleboro, 176
F.3d at 165, and observed that “the court recognized that the
NLRA does not preclude a charge nurse from having
supervisory status merely because her recommendation is
subject to a superior’s investigation.” Id. at 164.

       This summary of Glenmark does not make the
interpretation at issue here unreasonable.        Importantly,
Attleboro’s summary of Glenmark is dicta. If language “was
not necessary to our holding,” it “was therefore dicta.” IMO
Indus., Inc. v. Kiekert AG, 155 F.3d 254, 261 n. 4 (3d Cir.
1998). This language was not necessary to our holding in
Attleboro. In Attleboro, we rejected a decision that found that
an LPN did not qualify as a supervisor because her
recommendation was sometimes subject to the employer’s
investigation. 176 F.3d at 164. Glenmark, according to our
summary, rejected a decision that found that an LPN did not
qualify as a supervisor because her recommendation was
always subject to the employer’s investigation. Id. Holding
that one investigation of a recommendation may not prevent
someone from qualifying as a supervisor would not stop a
future court from holding that two instances of investigating
recommendations prohibited someone from being a
supervisor. As a result, the Glenmark observation was not
necessary to our holding in Attleboro.

       Even if it were not dicta, I would be reluctant to follow
it. Indeed, the Fourth Circuit has regarded Glenmark as no




                              15
longer binding. Palmetto Prince George Operating, LLC v.
NLRB, 841 F.3d 211 (4th Cir. 2016). In that case, an employer
refused to bargain collectively with LPNs on the theory that the
LPNs qualified as supervisors. Id. at 214. In front of the
NLRB’s Regional Director and then before the Fourth Circuit,
the employer “maintain[ed], however, that our analysis of
‘independent judgment’ in cases involving nurses issued prior
to Kentucky River and Oakwood is in all respects ‘consistent’
with those cases, and so governs the case at hand.” Id. at 216.

        The Fourth Circuit acknowledged that before Oakwood
Healthcare, the NLRB had interpreted independent judgment
to exclude “ordinary professional or technical judgment in
directing less-skilled employees to deliver services,” and that
the Fourth Circuit had rejected that interpretation as
unreasonable. Id. The Fourth Circuit cited Glenmark, the
inspiration for Attleboro, as an example of a case that rejected
the NLRB’s pre-Oakwood Healthcare interpretation and
summarized it as “holding that nurses were supervisors given
their authority to schedule and discipline nursing assistants
without management approval . . . .” Id. It rejected this
argument, the very argument that the Majority makes here, in
three steps.

       First, it observed that “[i]t is settled law that an agency
construction entitled to deference supersedes a prior judicial
construction of an ambiguous statute.” Id. (citing Brand X
Internet Servs., 545 U.S. at 982). Second, it noted that
Oakwood Healthcare’s interpretation of the statute deserved
deference because the statute was ambiguous and the
interpretation was reasonable. Id. Third, it concluded, based
on Kentucky River and Oakwood Healthcare—not
Glenmark—that the employer “simply has not shown that the
Nurses must use any independent judgment when performing




                               16
these functions.” Id. at 217. Specifically, it held that “[t]he
record before us indicates that [the employer] has given its
Nurses only the disciplinary power provided to every other
employee (including CNAs themselves): the power to report
rule violations to the Managers.” Id. at 218. As a result,
Palmetto eviscerated Glenmark’s power in this context.

                                B.

         Even if the Majority’s reading of Attleboro were
correct, I could not join the Majority because it misapplies
Chevron here. At its second step, Chevron asks us to determine
whether “Congress has explicitly left a gap for the agency to
fill” or if “the legislative delegation to an agency on a particular
question is implicit . . . .” Chevron, 467 U.S. at 843–44. If
Congress explicitly left a gap to fill, “[s]uch legislative
regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.” Id.
at 843–44. On the other hand, if Congress implicitly left a gap
to fill, “a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the
administrator of an agency.” Id. at 844.

        Here, the Majority focuses on the interpretation’s
reasonableness—not its arbitrariness, capriciousness, or
manifestly contrariness—when it writes that “Chevron or
Brand X deference would not allow us to adopt an
unreasonable interpretation.” Maj. Op. at 57 n. 14. Thus, it
assumes that the less deferential implicit delegation standard
applies. It makes this assumption without addressing the
Supreme Court’s conclusions that the NLRB’s interpretations
of the NLRA “involves that kind of express delegation,” ABF
Freight System, Inc., 510 U.S. at 324 (emphasis added), and
that “statutory interpretation by the Board would normally be




                                17
entitled to deference unless that construction were clearly
contrary to the intent of Congress.” Edward J. DeBartolo
Corp., 485 U.S. at 574 (1988) (emphasis added).

                             IV.

        A majority of New Vista’s LPNs voted to avail
themselves of protections created by Congress. The agency
responsible for providing those rights found that the LPNs
deserved them. In coming to this conclusion, the agency took
an approach that we had previously sanctioned in Mars Home.
However, the Majority casts away this agency’s decision with
passing reference to our previous precedential approval.
Instead of following this precedent, the Majority harkens back
to Attleboro and incorrectly claims that Attleboro rejected the
agency’s approach before us—an approach we are duty bound
to approve. Because Attleboro did not regard the decision at
bar as “manifestly contrary to the statute,” Chevron, 467 U.S.
at. 844, I cannot join the Majority’s opinion. I respectfully
dissent.




                              18
