United States Court of Appeals, District of Columbia Circuit
March 24, 2016.
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
Lofland and Mark David Watson were on the briefs for
F. Griffin, Jr., General Counsel, National Labor Relations
Board, John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Elizabeth A.
Heaney, Supervisory Attorney, and Heather S. Beard, Attorney,
were on the brief for respondent.
ROGERS and PILLARD, Circuit Judges, and SENTELLE, Senior
Sentelle, Senior Circuit Judge:
Canning petitions for review of a decision and order of the
National Labor Relations Board, which determined that the
petitioner violated the National Labor Relations Act and
ordered relief against petitioner. Petitioner argues that our
disposition vacating a prior order in the same dispute left
no authority with the Board to enter this further decision
and order. The Board cross-petitions for enforcement.
Concluding that there is no merit in petitioner's claims,
we deny the petition and grant the cross-petition for
case comes to our Court for a second time. In 2012,
petitioner Noel Canning, a division of the Noel Corporation,
petitioned this Court to review a decision and order of the
National Labor Relations Board holding that Noel Canning had
violated the National Labor Relations Act (NLRA) by failing
to execute a collective bargaining agreement with its
employees. We vacated the Board's decision on the ground
that three of the Board's five members had been
improperly appointed under the Recess Appointments Clause.
See Noel Canning v. NLRB ( Noel Canning
I ), 705 F.3d 490, 403 U.S.App.D.C. 350 (D.C. Cir.
2013). On certiorari, the Supreme Court affirmed this
Court's decision concluding that the appointments were
invalid, albeit on modified reasoning. See NLRB
v. Noel Canning ( Noel Canning II ), 134 S.Ct.
2550, 189 L.Ed.2d 538 (2014).
December 16, 2014, a panel of the now properly reconstituted
Board issued a new decision and order essentially adopting
the Board's 2012 decision and ordering Noel Canning,
inter alia, not to refuse to bargain with the
Teamsters Local 760 chosen by employees as their exclusive
representative. See Noel Canning, 361
N.L.R.B. No. 129 (Dec. 16, 2014). On February 2, 2015, Noel
Canning filed a petition for review of the Board's 2014
decision and order with this Court. One month later, the
Board filed a cross-application for enforcement. Petitioner
offers no challenge to the merits of the Board's latest
ruling. Instead, it argues that the Board lacked jurisdiction
to issue the 2014 decision and order because this Court's
opinion in Noel Canning I only vacated--never
remanded--the Board's 2012 decision and order. Three of
our sister circuits have already rejected substantially
identical challenges to other Board orders. See
Big Ridge, Inc. v. NLRB, 808 F.3d 705 (7th Cir.
2015); Huntington Ingalls Inc. v. NLRB, 631
Fed.Appx. 127 (4th Cir. 2015); NLRB v. Whitesell
Corp., 638 F.3d 883 (8th Cir. 2011). We do the same
today. Because this Court's decision and mandate in
Noel Canning I are best interpreted as allowing a
properly reconstituted Board to reconsider the merits, we
deny Noel Canning's petition for review. We grant the
Board's cross-application for enforcement because the
2014 decision and order, like the 2012 decision and order,
was supported by substantial evidence.
Canning argues that this case is controlled by 29 U.S.C.
§ 160(e), which states that " [u]pon the filing of
the [Board] record with [the court of appeals] the
jurisdiction of the court shall be exclusive and its judgment
and decree shall be final" except upon review by the
Supreme Court. The statute also provides that a court may
" make and enter a decree enforcing, modifying and
enforcing as so modified, or setting aside in whole or in
part the order of the Board." Id. Notably,
§ 160(e) makes no mention of ...