D.C. Cir. Ends Noel Canning Fight Over NLRB Order

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By Lawrence E. Dubé

May 17 — The U.S. Court of Appeals for the District of Columbia Circuit has rejected a bottling company's challenge to National Labor Relations Board unfair labor practice findings after more than four years of litigation and a major decision by the U.S. Supreme Court.

The Supreme Court held that the NLRB's original order against Noel Canning was invalid because the board that made it lacked a proper quorum, but Judge David B. Sentelle wrote May 17 that a “reconstituted” board had jurisdiction to reconsider the case in 2014, when it issued a new unfair labor practice finding against the company.

The National Labor Relations Act permits parties across the country to seek judicial review of NLRB decisions in the D.C. Circuit, and the court's enforcement of the board order is an important affirmation of the board's action.

Agreeing with the views of three other circuits, the D.C. Circuit held that the NLRB had jurisdiction to reconsider the unfair labor practice case against Noel Canning even though the appeals court did not formally remand the proceeding to the board.

Quorum Issue Went to the Supreme Court

The NLRB held in 2012 (358 N.L.R.B. 16 (2012)) that Noel Canning, a division of Noel Corp., unlawfully failed to bargain with Teamsters Local 760 by refusing to sign a collective bargaining agreement the company had negotiated with the union.

The employer sought review of the board order in the D.C. Circuit, which held that President Barack Obama made invalid recess appointments of three board members in January 2012. Finding the board lacked a quorum for the ruling against Noel Canning, the court vacated the board order (705 F.3d 490, 194 LRRM 3089 (D.C. Cir. 2013); (17 DLR AA-1, 1/25/13)).

The U.S. Supreme Court affirmed the ruling (134 S. Ct. 2550, 199 LRRM 3685 (2014); 123 DLR AA-1, 6/26/14).

Company Challenged New Board Order

Approximately six months after the high court ruling, Sentelle wrote, the NLRB (“now properly reconstituted” with Senate-confirmed members) issued a new decision and order (361 N.L.R.B. No. 129, 202 LRRM 1335 (2014)) that essentially adopted the board's earlier decision and ordered the bottling company to sign the agreement with Local 760.

Noel Canning again petitioned for review in the D.C. Circuit. The company did not challenge the merits of the NLRB's findings that it violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, but contended the NLRB lacked jurisdiction to issue the 2014 order against the company. The D.C. Circuit had never remanded the case to the NLRB, but had merely vacated the board's original ruling, the company argued.

The D.C. Circuit said other employers failed with “substantially identical challenges” in three other circuits.

Court Follows Other Circuits, Backs NLRB

Citing Big Ridge, Inc. v. NLRB, 808 F.3d 705, 205 LRRM 3086 (7th Cir. 2015) (243 DLR AA-1, 12/18/15), Huntington Ingalls Inc. v. NLRB, 631 F. App’x 127, 205 LRRM 3126 (4th Cir. 2015) (226 DLR A-3, 11/24/15), and NLRB v. Whitesell Corp., 638 F.3d 883, 190 LRRM 2769 (8th Cir. 2011) (78 DLR A-1, 4/22/11), the D.C. Circuit agreed, Sentelle said.

The D.C. Circuit said Noel Canning offered “no convincing reason” for arriving at a different conclusion. “It is not totally consistent with common sense to suggest that when a petition has been filed with an administrative agency and that agency reached a decision but a court vacated the decision for reasons unrelated to the merits of the petition, the merits issues in the case must remain forever undecided,” the court said.

Concluding the board acted within its jurisdiction in reconsidering the unfair labor practice complaint against Noel Canning, the appeals court said that the company's decision not to challenge the merits of the decision made it appropriate for the court to grant summary enforcement of the board's order requiring the employer to sign the disputed collective bargaining agreement.

Judges Judith W. Rogers and Cornelia T. L. Pillard joined in the opinion.

Gary E. Lofland and Mark D. Watson of Meyer, Fluegge & Tenney PS in Yakima, Wash., represented Noel Canning. NLRB attorneys Elizabeth A. Heaney and Heather S. Beard in Washington represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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