Court Enforces NLRB Order Previously Overturned Because of Recess Appointments

By Jeffrey Rhodes Jun 7, 2016

A National Labor Relations Board (NLRB) order requiring Noel Canning, a Pepsi-Cola distributor, to bargain with its employees’ union can be enforced even though a similar NLRB order was previously ruled to be invalid due to recess appointments on the board, the U.S. Court of Appeals for the D.C. Circuit ruled.

In 2012, Noel Canning petitioned the D.C. Circuit to review a decision and order of the NLRB requiring it to bargain with Teamsters Local 760, the collective bargaining representative of its employees. The D.C. Circuit granted Noel Canning’s petition for review and vacated the NLRB’s decision because three of the board’s five members had been improperly appointed by President Barack Obama during a three-day recess of the U.S. Senate. The U.S. Supreme Court unanimously upheld this decision, finding that the president’s appointments during this short recess were unconstitutional.

Since then, the president has appointed three board members that have been confirmed by the Senate. On Dec. 16, 2014, the properly reconstituted NLRB issued a new decision and order adopting the 2012 decision and order, which required Noel Canning to bargain with Teamsters Local 760. On Feb. 2, 2015, Noel Canning filed another petition for the D.C. Circuit to review the NLRB’s 2014 decision and order, and the NLRB filed a cross-application for enforcement. Noel Canning argued that the NLRB lacked jurisdiction to reconsider the unfair labor practice charge because the D.C. Circuit’s 2012 opinion did not remand it for further consideration by the board.

The D.C. Circuit considered whether the board’s faulty composition meant that the unfair labor practice charge could never be adjudicated. Looking at similar decisions of other federal circuit courts, the D.C. Circuit reasoned that the 2012 decision and order was vacated solely because the board lacked a properly constituted quorum, and not because of the merits of the charge. While the D.C. Circuit did not expressly state that the NLRB could reconsider the charge once its members were properly appointed, this was implied by the limited grounds the court gave for vacating the NLRB’s decision and order. Moreover, the D.C. Circuit could not have expressed this intent by remanding the decision to the board when there was not a properly constituted board.

The D.C. Circuit also considered the fact that Noel Canning’s argument would deprive the employees of any final decision on the unfair labor practice charge, which would offend common sense. Unless the NLRB were allowed to reconsider the charge, it would remain forever undecided due to procedural or forum-related reasons unrelated to the merits. For these reasons, the D.C. Circuit denied Noel Canning’s petition for review and granted the NLRB’s cross-application for enforcement.

Noel Canning v. NLRB, No. 15-1029, D.C. Cir. (May 17, 2016).

Professional Pointer: The Supreme Court’s Noel Canning decision invalidated hundreds of NLRB orders issued between January 2012 and January 2013, but that does not mean that the orders may never be reissued. As the D.C. Circuit has held, the now-properly constituted NLRB can reconsider the underlying charges and issue new decisions and orders.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.


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