Huntington Ingalls Inc. v. NLRB , 631 F. App'x 127 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2051
HUNTINGTON INGALLS INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS,
Intervenor.
------------------------------
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
Amicus Supporting Petitioner.
No. 14-2148
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HUNTINGTON INGALLS INCORPORATED,
Respondent,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS,
Intervenor.
-----------------------------
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
Amicus Supporting Petitioner.
Petition for Review and Cross Application for Enforcement of an
Order of the National Labor Relations Board. (05−CA−081306)
No. 14-2072
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
ENTERPRISE LEASING COMPANY SOUTHEAST, LLC,
Respondent.
_______________
On Application for Enforcement of an Order of the National
Labor Relations Board. (11−CA−073779)
Argued: September 16, 2015 Decided: November 23, 2015
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Enforcement granted by unpublished per curiam opinion.
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Nos. 14-2051/2148. ARGUED: Gregory Branch Robertson, HUNTON &
WILLIAMS LLP, Richmond, Virginia, for Petitioner/Cross-
Respondent. Heather Stacy Beard, Robert James Englehart,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent/Cross-Petitioner. ON BRIEF: Kurt G. Larkin, HUNTON &
WILLIAMS LLP, Richmond, Virginia; Dean C. Berry, Assistant
General Counsel, HUNTINGTON INGALLS INDUSTRIES, INC., Newport
News, Virginia, for Petitioner/Cross-Respondent. Richard F.
Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, David Seid, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-
Petitioner. William H. Haller, Associate General Counsel,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
Upper Marlboro, Maryland, for Intervenor. Kate Comerford Todd,
Steven P. Lehotsky, U.S. CHAMBER LITIGATION CENTER, Washington,
D.C.; Noel J. Francisco, James M. Burnham, Sarah A. Hunger,
JONES DAY, Washington, D.C., for Amicus Curiae.
No. 14-2072. ARGUED: Heather Stacy Beard, David A. Seid,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Petitioner. Dean John Sauer, JAMES OTIS LAW GROUP, LLC, St.
Louis, Missouri; Daniel R. Begian, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., St. Louis, Missouri, for Respondent. ON
BRIEF: Richard F. Griffin, Jr., General Counsel, Jennifer
Abruzzo, Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, Robert J. Englehart, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
Michael Martinich-Sauter, CLARK & SAUER, LLC, St. Louis,
Missouri, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
These refusal-to-bargain cases are before us for the second
time on appeal. In the first appeal, Enterprise Leasing Company
Southeast, LLC (Enterprise) and Huntington Ingalls, Incorporated
(Huntington) challenged orders of the National Labor Relations
Board (the Board) requiring each company to bargain with the
union, Local 391 of the International Brotherhood of Teamsters
in the case of Enterprise and the International Association of
Machinists and Aerospace Workers in the case of Huntington,
following Board-conducted union elections. Because each case
involved the constitutional question of whether the President’s
three January 2012 appointments to the Board ran afoul of the
United States Constitution’s Recess Appointments Clause, U.S.
Const. art. II, § 2, cl. 3, thereby depriving the Board of a
proper quorum, we first addressed whether each company violated
the NLRA as a means of avoiding the constitutional question
presented. NLRB v. Enterprise Leasing Co. Southeast, LLC, 722
F.3d 609, 613-14 (4th Cir. 2013), cert. denied, 134 S. Ct. 2902(2014). On this nonconstitutional question, we agreed with the
Board that both Enterprise and Huntington violated Sections
8(a)(1) and (a)(5) of the National Labor Relations Act (NLRA),
29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain with the
unions, 722 F.3d at 616-20, 624-31. Because the
nonconstitutional question was resolved in favor of the Board,
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we addressed the constitutional question presented. On this
question, we held that the President’s three January 2012
appointments to the Board violated the Recess Appointment
Clause, and, therefore, the Board lacked a proper quorum when it
issued its decisions in 2012. Id. at 631-60. Because the Board
lacked a proper quorum, we “vacated” the Board’s decisions and
denied enforcement of the Board’s orders. Id. at 660.
Following our decision, the Board filed a petition for
rehearing for the limited purpose of requesting that we modify
our judgment to include language explicitly remanding the cases
to the Board for further proceedings. In so requesting, the
Board posited that such a request was actually unnecessary given
that our decision “anticipat[es] the possibility of issuance of
new Board orders.” (Huntington J.A. 640). Nevertheless, the
Board desired such language in our judgment to avoid “needless
litigation.” (Huntington J.A. 640). Summarily, this court
denied the petition for rehearing. The Board then filed a
petition for a writ of certiorari with the United States Supreme
Court.
In NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the
Supreme Court resolved the constitutional question addressed by
this court in its prior panel opinion. There, the Court
affirmed the D.C. Circuit’s determination that the President’s
three January 2012 appointments to the Board were invalid. Id.5
at 2578. In so affirming, however, the Court took issue with
the D.C. Circuit’s reasoning, opining that the Recess
Appointments Clause applies to both inter-session recesses and
“intra-session recess[es] of substantial length,” id. at 2561,
as well as to Board vacancies that occur prior to or during the
recess, id. at 2567. According to the Court, because the
President’s three January 2012 appointments to the Board
occurred during a three-day recess of the Senate, the recess was
“too short a time to bring [the] recess within the scope of the
Clause,” and, therefore, the recess appointments were invalid.
Id. at 2557. Following the Court’s decision in Noel Canning,
the Supreme Court denied the Board’s petition for a writ of
certiorari in this case. NLRB v. Enterprise Leasing Co.
Southeast, LLC, 134 S. Ct. 2902 (2014).
On August 14, 2014, the Board’s Executive Secretary
notified both Enterprise and Huntington that because the “Board
panel that previously decided” each case was “not properly
constituted,” the Board was going to consider each case “anew.”
(Enterprise J.A. 467; Huntington J.A. 1808). Both Enterprise
and Huntington objected to the Board’s consideration of their
respective cases on the basis that, absent a remand from this
court, the Board lacked jurisdiction.
On October 2, 2014, a properly constituted Board issued a
decision in Enterprise’s case, and a similarly constituted Board
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issued a decision in Huntington’s case on October 3, 2014. The
Board rejected Enterprise’s and Huntington’s arguments that the
Board lacked jurisdiction to issue its decisions. The Board
reasoned that our prior decision clearly contemplated further
Board action and that such further action was consistent with
the Eighth Circuit’s decision in NLRB v. Whitesell Corp., 638
F.3d 883, 889 (8th Cir. 2011) (holding that the denial of
enforcement on the basis that the Board lacked a proper quorum
did not deprive the Board of jurisdiction to consider the case
anew). On the merits, the Board adopted the reasoning of its
earlier decisions, further observing that neither Enterprise nor
Huntington offered “any newly discovered” or “previously
unavailable evidence” that would “require the Board to
reexamine” its earlier decisions. (Enterprise J.A. 472;
Huntington J.A. 1816). The Board’s orders require Enterprise
and Huntington to bargain with the unions upon request and
embody any understanding in a signed agreement.
On October 6, 2014, Huntington filed a petition for review
of the Board’s order against it. On October 8, 2014, the Board
filed an application for enforcement of its order against
Enterprise, and, on October 24, 2014, the Board filed a cross-
application for enforcement of its order against Huntington.
Relying on our decision in NLRB v. Lundy Packing Co., 81
F.3d 25 (4th Cir. 1996) (Lundy II), Enterprise and Huntington
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first contend that the Board was without jurisdiction to
consider the cases anew. We reject this argument for the simple
reason that Lundy II is distinguishable from the case at hand.
In NLRB v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir.
1995) (Lundy I), we denied enforcement of the Board’s bargaining
unit determination for a production and maintenance unit at
Lundy Packing’s Clinton, North Carolina facility. Id. at 1579,
1583. The union election that followed the Board’s bargaining
unit determination resulted in a 318 to 309 win for the union.
Id. at 1579. In denying enforcement of the Board’s bargaining
unit determination, we held that the Board abused its discretion
when it excluded certain employees from the bargaining unit.
Id. at 1580-83. In response to our decision, the Board sought
to revisit the union election results by “counting the
challenged ballots.” Lundy II, 81 F.3d at 26. To prevent this,
Lundy Packing sought a stay in our court. Id. We held that the
Board was not at liberty to revisit the union election results,
“[a]bsent a remand” from this court. Id. (citation and internal
quotation marks omitted).
Enterprise and Huntington argue that per Lundy II the Board
in this case was not at liberty to revisit their challenges to
the union election results absent a remand from this court. We
reject this argument for the simple reason that the court in
Lundy I disposed of the case on the merits, while this court in
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its prior panel opinion did not.
The approach adopted in Lundy II makes perfect sense where
the Board seeks to revisit a merits determination made by this
court. If the Board is permitted to do so, the products are the
prevention of review by the Supreme Court and endless
litigation. Id. Indeed, to have allowed the Board to
continuously stab at our merits determination in Lundy I that
the bargaining unit was underinclusive would have prevented
Supreme Court review of our Lundy I decision and resulted in
endless litigation. However, where the court denies enforcement
on the basis that the Board lacked a proper quorum, as was the
case here, Lundy II’s concerns of the prevention of Supreme
Court review and endless litigation fall by the way side. No
action by the Board is preventing Supreme Court review. In
fact, our prior decision was brought to the Supreme Court for
review, and the parties here are at liberty to seek such review
from the decision we reach today. Likewise, the concerns of
endless litigation are not present where the Board simply
reconstitutes to obtain a proper quorum. Unlike Lundy II, the
Board here is not looking to find a new factual or legal basis
in which to justify its previous decisions. Rather, it
revisited the cases with a proper quorum, and the factual and
legal basis of its decisions have remained the same.
Moreover, the interpretation of Lundy II pressed by
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Enterprise and Huntington has its own shortcomings. First,
their interpretation makes little sense because it deprives the
employees of Enterprise and Huntington who have chosen union
representation through valid union elections from having
Enterprise’s and Huntington’s challenges to the union elections
resolved on the merits once and for all by this court. We see
nothing in the NLRA that intimates the type of deprivation of
review pressed by Enterprise and Huntington. Second, their
interpretation creates a circuit split and places us at odds
with the well-reasoned decision by the Eighth Circuit in
Whitesell. That court understandably carved out a very narrow
exception to the remand rule where the court disposes of the
case on the basis that the Board issued a quorumless decision.
A decision finding the lack of a proper quorum clearly
contemplates further Board action, and, thus, the Board here did
not err when it revisited Enterprise’s and Huntington’s
challenges to the union elections.
Next, Enterprise and Huntington contend that the properly
reconstituted Board erred when it rejected their respective
challenges to the union elections. These contentions mirror the
challenges previously raised to this court in the prior appeal,
and we reject them for the reasons stated in our prior panel
opinion. Enterprise Leasing, 722 F.3d at 616-20, 624-31.
Huntington also contends that because the bargaining unit has
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grown in size since the union election, we should refuse to
enforce the Board’s order against Huntington. We have reviewed
this contention and find it to be without merit.
Accordingly, for the reasons stated herein, we grant
enforcement of the Board’s orders.
ENFORCEMENT GRANTED
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