In GGNSC Springfield v. NLRB, a divided panel help that nurses at a nursing home were not supervisors (and, therefore, could not unionize) because they used independent judgment to discipline their assistants. In a strong dissent, Judge Merritt argued that the company had “drafted a nominal procedure that has never led to anything but an excuse for allowing the company to avoid” collective bargaining.
Interestingly, the majority avoided weighing in on the D.C. Circuit’s decision in Noel Canning that the president’s NLRB recess appointments violated the Appointment Clause of the Constitution (the Third Circuit has also recently addressed the question). That case is now before the Supreme Court, which granted cert at the end of the term. The majority found that the legitimacy of the appointments was not jurisdictional and that the appellant had waived the issue by raising it for the first time in a 28(j) letter after briefing was complete. Another reminder about preserving issues for review!