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Canning v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 17, 2016

NOEL CANNING, A DIVISION OF THE NOEL CORPORATION, PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT

         Submitted March 24, 2016.

Page 77

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

         Gary E. Lofland and Mark David Watson were on the briefs for petitioner.

         Richard 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.

         Before: ROGERS and PILLARD, Circuit Judges, and SENTELLE, Senior Circuit Judge.

          OPINION

Page 78

          Sentelle, Senior Circuit Judge:

          Noel 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 enforcement.

         BACKGROUND

         This 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).

         On 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.

         DISCUSSION

         Noel 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, ยง 160(e) makes no mention of ...


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