Professional Documents
Culture Documents
Unpublished
Unpublished
No. 14-2051
ASSOCIATION
OF
MACHINISTS
AND
AEROSPACE
Intervenor.
-----------------------------CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
Amicus Supporting Petitioner.
No. 14-2148
ASSOCIATION
OF
MACHINISTS
AND
AEROSPACE
Intervenor.
----------------------------CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
Amicus Supporting Petitioner.
No. 14-2072
Argued:
Decided:
Nos. 14-2051/2148.
ARGUED: Gregory Branch Robertson, HUNTON &
WILLIAMS
LLP,
Richmond,
Virginia,
for
Petitioner/CrossRespondent.
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/CrossPetitioner.
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.
PER CURIAM:
These refusal-to-bargain cases are before us for the second
time on appeal.
and
Aerospace
Workers
in
the
case
of
Huntington,
States
Constitutions
Recess
Appointments
Clause,
U.S.
NLRA
as
presented.
means
of
avoiding
the
constitutional
question
F.3d 609, 613-14 (4th Cir. 2013), cert. denied, 134 S. Ct. 2902
(2014).
Board
that
both
Enterprise
and
Huntington
violated
Sections
722
F.3d
at
616-20,
624-31.
Because
the
we
appointments
held
to
that
the
the
Board
Presidents
violated
three
the
On this
January
Recess
2012
Appointment
Id. at 631-60.
our
decision,
the
Board
Id. at 660.
filed
petition
for
In so requesting, the
Nevertheless, the
the
(Huntington
petition
for
J.A.
640).
rehearing.
Summarily,
The
Board
this
then
court
filed
NLRB
v.
Noel
Canning,
134
S.
Ct.
2550
(2014),
the
court
in
its
prior
panel
opinion.
There,
the
Court
Id.
at 2578.
the
D.C.
Circuits
reasoning,
opining
that
the
Recess
id.
at
Presidents
2567.
three
According
January
2012
to
the
Court,
appointments
because
to
the
the
Board
in
this
case.
NLRB
v.
Enterprise
Leasing
Co.
August
14,
2014,
the
Boards
Executive
Secretary
that
previously
decided
each
case
was
not
properly
Both Enterprise
The
The Board
883,
889
(8th
Cir.
2011)
(holding
that
the
denial
of
offered
any
evidence
its
and
Huntington
that
earlier
newly
discovered
would
or
require
decisions.
the
(Enterprise
previously
Board
J.A.
to
472;
bargain
with
the
unions
upon
request
and
an
application
for
enforcement
of
its
order
against
Enterprise, and, on October 24, 2014, the Board filed a crossapplication 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
7
first
contend
that
the
Board
was
without
jurisdiction
to
determination
for
production
and
maintenance
unit
at
Id. at 1579,
revisit
the
challenged ballots.
election
results
by
Id.
counting
the
To prevent this,
We held that the
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
8
prevention
of
litigation.
review
Id.
by
Indeed,
the
Supreme
to
have
Court
allowed
and
the
endless
Board
to
bargaining
unit
was
underinclusive
would
have
prevented
on the basis that the Board lacked a proper quorum, as was the
case
here,
Lundy
IIs
concerns
of
the
prevention
of
Supreme
No
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.
endless
litigation
are
not
present
where
the
Board
simply
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
9
of
Lundy
II
pressed
by
Enterprise
and
Huntington
has
its
own
shortcomings.
First,
through
valid
union
elections
from
having
We see
pressed
by
Enterprise
and
Huntington.
Second,
their
the
well-reasoned
Whitesell.
decision
by
the
Eighth
Circuit
in
decision
finding
the
lack
of
proper
quorum
clearly
contemplates further Board action, and, thus, the Board here did
not
err
when
it
revisited
Enterprises
and
Huntingtons
Board
erred
when
it
rejected
their
respective
Enterprise
Leasing,
722
F.3d
at
616-20,
624-31.
We have reviewed
for
the
reasons
stated
herein,
we
grant
11