TEAMSTERS LOCAL UNION NO. 455, Petitioner,
NATIONAL LABOR RELATIONS BOARD, Respondent. HARBORLITE CORPORATION, Intervenor
PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. (NLRB No. 27-CA-21386).
Michael J. Belo, Berenbaum Weinshienk PC, Denver, Colorado, for Petitioner Teamsters Local Union No. 455.
Zachary Henige, Washington, D.C. (Robert J. Engelhart, Supervising Attorney, Amy H. Ginn, Attorney, Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, on the brief) for Respondent National Labor Relations Board and Stuart F. Delery, Principal Deputy Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Douglas N. Letter, Scott R. McIntosh, Joshua P. Waldman, Mark R. Freeman, Sarang V. Damle, Melissa N. Patterson, and Benjamin M. Shultz, Civil Division, United States Department of Justice, Washington, D.C., filed a supplemental brief for Respondent National Labor Relations Board.
J. Thomas Kilpatrick, Alston & Bird LLP, Atlanta, Georgia (Wes R. McCart with him on the briefs) for Intervenor Harborlite Corporation.
Before GORSUCH, EBEL, and O'BRIEN, Circuit Judges.
GORSUCH, Circuit Judge.
What happens when company and union can't come to terms? Sometimes the union might wish to strike, but sometimes not. What happens then -- when the union prefers work to continue? Under Supreme Court precedent employers are often permitted to " lock out" the employees and hire temporary replacement workers until a collective bargaining agreement is reached. But what happens if the employer threatens to hire permanent replacements? Does this violate the law, even if
the employer doesn't carry through on the threat and quickly retreats from it? The National Labor Relations Board thought so. It ordered Harborlite to desist from future threats and to post a notice promising its employees that much. But the Teamsters wanted the Board to go further -- to hold not only the threat unlawful but also the entire lockout, and to award the employees backpay. This much the Board declined to do, finding that the company's short-lived threat didn't materially affect negotiations during the lockout, which in any case ended with Harborlite retreating. It is this decision the union now asks us to undo, but one we find we cannot.
Given recent events, one might wonder whether we can even reach the merits of the union's challenge. We found ourselves wondering just that after several circuits last year declined to enforce NLRB orders on the ground the Board lacked the quorum required by law to issue any order at all.
The controversy began when the President appointed individuals to serve on the NLRB without the advice and consent of the Senate. The President argued that his appointments were lawful under the Constitution's Recess Appointments Clause -- because they were made during times when the Senate was either adjourned temporarily or operating in pro forma sessions. A number of courts disagreed, however, thinking that the Clause authorizes appointments only when the Senate is between sessions, not during intra-session breaks. Some held, too, that the President's recess appointment power permits him to fill merely those positions that become vacant during an inter-session recess. These same courts concluded that, without the unlawfully appointed members, the Board couldn't meet its quorum requirement or the statutory requirement that its decisional panels consist of three members. See, e.g., Noel Canning v. NLRB, 705 F.3d 490, 403 U.S.App.D.C. 350 (D.C. Cir. 2013); NLRB v. New Vista Nursing & Rehab., 719 F.3d 203 (3d Cir. 2013); cf. U.S. Const. art. II, § 2, cl. 3.
We worried that a similar problem might be lurking in our case. When it decided our case, after all, the Board had just three members, and one of these -- Craig Becker -- was appointed without Senate confirmation during an intra-session Senate recess. Indeed, the Third Circuit had specifically declared his appointment invalid. See New Vista Nursing & Rehab., 719 F.3d at 221. But with some other courts voicing disagreement and the Supreme Court agreeing to tackle the issue, we thought the prudent course to put this case on hold until the Court could speak.
The Court has now spoken and its guidance dispels our main worries. In NLRB v. Noel Canning, the Court clarified that the President's recess appointment powers extend to filling vacancies that arise during a Senate session and extend to filling vacancies during intra-session recesses of a " sufficient" duration. 134 S.Ct. 2550, 2567, 2573, 189 L.Ed.2d 538 (2014). The Court did go on to hold several NLRB members' appointments unlawful because they occurred during a three-day intra-session recess that was " too short to trigger the President's recess-appointment power." Id. at 2574. But in light of historical practice the Court held that only recesses lasting fewer than ten days are " presumptively too short." Id. at 2567. Mr. Becker, by contrast, was appointed during ...