Dodge of Naperville, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2015 Decided August 4, 2015

No. 12-1032

DODGE OF NAPERVILLE, INC. AND BURKE AUTOMOTIVE

GROUP, INC., DOING BUSINESS AS NAPERVILLE JEEP/DODGE,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 12-1122

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

James F. Hendricks Jr. argued the cause for petitioner.

With him on the briefs was Gary L. Lieber.

Douglas Callahan, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Stuart F. Delery, Acting Assistant Attorney

General at the time the brief was filed, U.S. Department of

Justice, Beth S. Brinkmann, Deputy Assistant Attorney

General, Scott R. McIntosh, Sarang V. Damle, and Melissa

Patterson, Attorneys, John H. Ferguson, Associate General

2

Counsel, National Labor Relations Board, Linda Dreeben,

Deputy Associate General Counsel, and Usha Dheenan,

Supervisory Attorney.

Before: GARLAND, Chief Judge, and MILLETT and

WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: The owner of a small car

dealership closed the dealership down and informed the six

mechanics there – all of whom were union members – that

they were expected to continue working at the owner’s larger,

non-unionized dealership for reduced wages and inferior

benefits. After delivering this news, the owner refused to

bargain with the mechanics’ union over the effects of the

move or to otherwise recognize the union in any way. The

union filed a charge with the National Labor Relations Board,

which ultimately found that the company had committed

various unfair labor practices during the relocation. Most

critically here, the Board concluded that the company acted

unlawfully when it withdrew recognition of the union.

On appeal, the company contends that it had no choice

but to withdraw recognition of the union, on the ground that

the relocated employees had been absorbed into a larger unit

of non-union employees at the new dealership. The company

also levies an attack on the Board’s composition at the time

the decision was issued. Because we conclude that these

challenges are meritless, we deny the petition for review and

grant the Board’s cross-application for enforcement.

3

I.

A.

This labor dispute unfolded outside of Chicago at two car

dealerships owned by Ed Burke: Burke Automotive Group,

Inc., doing business as Naperville Jeep Dodge, in Lisle,

Illinois; and its subsidiary, Dodge of Naperville, in nearby

Naperville, Illinois. (We refer to these dealerships

respectively as the Lisle dealership and the Naperville

dealership, and collectively as Burke Automotive, or simply

Burke.) In early June 2009, the Lisle dealership employed

fourteen mechanics, none of whom were unionized, while the

Naperville dealership employed six mechanics, all of whom

belonged to Automobile Mechanics Local No. 701,

International Association of Machinists and Aerospace

Workers, AFL-CIO (“the Union”). See Dodge of Naperville,

Inc., 357 N.L.R.B. No. 183, 2012 WL 30418, at *1 (Jan. 3,

2012). The Union had represented employees at the

Naperville dealership for 20 years. Id. at *28.

The Chrysler bankruptcy of 2009 triggered a chain of

events that forced Burke Automotive to close one of its

dealerships. On June 19, after significant back-and-forth,

Chrysler approved a proposal by Ed Burke to continue selling

vehicles in Lisle so long as he closed, at least temporarily, the

Naperville facility. Id. at *13.

On June 20, Burke Automotive shut down the Naperville

dealership and notified the six mechanics that they no longer

had jobs there. Id. at *14, 17. It permitted the Naperville

mechanics to work at the Lisle dealership immediately and

told them that if they refused employment, they would be

viewed as having quit and would be denied unemployment

compensation. Id. at *1, 17-20. Burke also ceased to honor

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the collective bargaining agreement (“CBA”) that it had

entered into with the Union. Id. at *19. At the Lisle facility,

the transferred employees worked alongside the other Lisle

employees and under the same supervision. They also were

compensated with wages and benefits at the standard Lisle

rates, which were considerably less favorable than those set

forth in the Naperville employees’ CBA. Id. at *2, *19-20.

Two former Naperville employees resigned in light of the

inferior terms and conditions imposed. Id. at *35-36. 1

The Union contacted Burke Automotive and requested

the opportunity to bargain over the effects of the move. But

Burke refused to recognize the Union, explaining that it no

longer represented a majority of mechanics in the bargaining

unit. Id. at *18-19.

B.

The Union filed charges with the National Labor

Relations Board’s General Counsel, who subsequently issued

a complaint against Burke Automotive. A hearing was held

before an administrative law judge (“ALJ”) in Chicago on

March 15 and March 16, 2010. The ALJ found that Burke

Automotive had violated Sections 8(a)(5) and 8(a)(1) of the

National Labor Relations Act (“NLRA”) by failing to bargain

with the Union about the effects of the relocation on the

Naperville mechanics, unreasonably delaying the provision of

1

Although the hourly rate was the same at the two dealerships, at

Naperville the mechanics were guaranteed 34 hours of pay a week,

provided that they were present at the dealership for 40 hours that

week. At Lisle, the mechanics were paid solely for the hours of

work that they were assigned and completed, even if they were

present in the garage for 40 hours or more. This often resulted in

considerably less take-home pay at the Lisle dealership. Dodge of

Naperville, 2012 WL 30418, at *16, *19.

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information to the Union, and unlawfully threatening the

mechanics against unionizing. Dodge of Naperville, Inc., 13-

CA-45399, 2010 WL 3285387 (N.L.R.B. Div. of Judges Aug.

2, 2010). He further found that Burke Automotive had

unlawfully withdrawn recognition of the Union as the

exclusive representative of the mechanics in the Naperville

bargaining unit, unlawfully repudiated the collective

bargaining agreement in effect at the time, unilaterally

changed the terms and conditions of employment, and

constructively discharged the two Naperville mechanics who

resigned. Id.

The Board affirmed the ALJ’s decision, subject to some

technical modifications and clarification of the underlying

reasoning. The Board also affirmed the ALJ’s order directing

Burke Automotive to take various affirmative steps, including

bargaining with the Union. One of the panel’s members

dissented with respect to the Board’s finding that Burke

unlawfully withdrew recognition of the Union. 2 It is

primarily this question of withdrawal that Burke presses in its

petition for review.

2

Because the dissenting member believed that withdrawal of

recognition was proper, he also dissented from the Board’s findings

that the employer unlawfully informed the Naperville employees

that they no longer enjoyed union representation at the Lisle

dealership, unlawfully repudiated the CBA, unlawfully imposed

unilateral changes without bargaining, and constructively

discharged two members. See Dodge of Naperville, 2012 WL

30418, at *7 n.3.

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II.

A.

Because the Board has “the primary responsibility of

marking out the scope of the statutory language and of the

statutory duty to bargain” under the NLRA, this Court “defers

to the Board’s ‘reasonably defensible’ construction of that

duty.” Cincinnati Newspaper Guild, Local 9 v. NLRB, 938

F.2d 284, 286 (D.C. Cir. 1991) (quoting Ford Motor Co. v.

NLRB, 441 U.S. 488, 496-97 (1979)) (internal quotation

marks omitted). Any findings of fact made by the Board are

conclusive if supported by substantial evidence, “even if a

reviewing court on de novo review would reach a different

result.” Citizens Inv. Servs. Corp. v. NLRB, 430 F.3d 1195,

1198 (D.C. Cir. 2005); see also Synergy Gas Corp. v. NLRB,

19 F.3d 649, 651 (D.C. Cir. 1994) (the Court will uphold an

order of the Board unless “it appears that the Board’s factual

findings are not supported by substantial evidence or that the

Board acted arbitrarily or otherwise erred in applying

established law to the facts at issue”).

B.

1.

As noted, the Board concluded that Burke Automotive

violated its duty to bargain with the Union over the effects of

the relocation to Lisle. Although Burke does not challenge

this ruling – at least not directly – the ruling bears on other

issues raised in the appeal. We therefore pause to discuss the

scope of an employer’s duty to bargain over the effects of a

relocation.

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An employer generally is free to make decisions about

the scope and direction of its enterprise, including whether to

shut down or relocate part of the business. First Nat’l Maint.

Corp. v. NLRB, 452 U.S. 666, 686-88 (1981). The employer

must, however, bargain with the union over the effects of that

decision on the employees represented by the union. Id. at

681-82; see also United Food & Commercial Workers Local

540 v. NLRB, 519 F.3d 490, 495-96 (D.C. Cir. 2008).

“[B]argaining over the effects of a decision must be

conducted in a meaningful manner and at a meaningful time,”

First Nat’l Maint. Corp., 452 U.S. at 681-82, which did not

occur here. Burke Automotive did not inform the Union of

the move until after it happened, and even then refused to

engage in any discussions with the Union about the move’s

effects on the employees.

The range of topics discussed during effects bargaining

depends on the nature of the change imposed. When an

employer transfers employees from one facility to another,

mandatory subjects of bargaining generally include “initial

wages, benefits, seniority rights, and working conditions at

the new location.” Dodge of Naperville, 2012 WL 30418, at

*3; see also Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368

(4th Cir. 1995) (holding that employer had a duty to bargain

with union over the effects of a merger on “wages, hours,

work rules, work schedules, and work locations”); Comar,

Inc., 349 N.L.R.B. 342, 354 (2007) (“Comar II”) (noting that

bargaining subjects during transfer included “the relocated

workers’ wages, work locations, schedules, carryover of

seniority, and other terms and conditions of employment at

the new plant, as well as over the conditions of the transfer”). 3

3

Burke mischaracterizes its duty to bargain to include, at most, the

effects of the mechanics’ discontinuation of employment. See

Petitioner’s Br. 24. The cases cited by Burke, however, refer to

8

Burke Automotive therefore was required to bargain with

the Union about the former Naperville employees’ initial

wages, benefits, schedules, and other terms and conditions at

the Lisle facility. During such bargaining, the employer was

required to consider “any proposals” put forth by the Union

on these topics. First Nat’l Maint. Corp., 452 U.S. at 678-79

n.17.

The duty to engage in effects bargaining persists even if

the employer’s management decision renders the historic unit

inappropriate for other purposes. Thus, an employer cannot

avoid effects bargaining simply by waiting until after the

change has taken place and then claiming that the bargaining

unit is no longer viable. See Comar II, 349 N.L.R.B. at 354.

We affirmed this commonsense principle in United Food &

Commercial Workers Local 540, where an employer claimed

that its duty to engage in effects bargaining was rendered

moot by the closure of a facility. We rejected the employer’s

argument, holding that an “employer’s duty to bargain over

the effects of a plant closing continues even after the closing:

. . . [W]hen a plant closes, an employer cannot escape its

effects bargaining duty simply by saying ‘No one works here

anymore; the bargaining unit has disappeared.’” 519 F.3d at

mandatory topics of bargaining when an employer shuts down a

facility and lays off the employees. See, e.g., Friedman’s Exp., Inc.,

315 N.L.R.B. 971, 971-72 (1994) (in the context of a plant closure,

“it is well settled that effects bargaining encompasses ‘issues such

as severance pay, seniority, pensions, health insurance, [and] job

security’ that are of concern to all bargaining unit employees

‘whose employment status will be altered by the managerial

decision.’”) (footnotes omitted). The Board found that Burke’s

actions constituted a relocation or transfer. Dodge of Naperville,

2012 WL 30418, at *3, *20, *24-25. Burke does not expressly

challenge this factual finding, which is supported by substantial

evidence in any event.

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496. Likewise, even if the Naperville bargaining unit merged

with the Lisle employees moving forward, the employer

retained an obligation to bargain about the relocation’s effects

on the Naperville employees.

2.

The more difficult question – and the one that Petitioner

more clearly presses on appeal – is whether the historic

Naperville unit became an inappropriate unit for other

collective bargaining purposes once those employees were

moved to Lisle. This question is critical to the Board’s

finding that Burke Automotive unlawfully withdrew

recognition of the unit. As the Board observed, an employer

may lawfully withdraw recognition (for purposes other than

effects bargaining) if the union no longer enjoys support from

a majority of employees in the relevant unit. Dodge of

Naperville, 2012 WL 30418, at *2 (citing Serramonte

Oldsmobile, 318 N.L.R.B. 80, 104 (1995), enforced in

relevant part, 86 F.3d 227 (D.C. Cir. 1996)).

Burke Automotive argued to the Board that the only

appropriate unit was the aggregated group of historic Lisle

and former Naperville employees. Burke contended that the

old Naperville unit lost its distinct identity when its

mechanics began working side-by-side with Lisle employees,

and that the merged group formed one (and only one)

“community of interest.”

The Board rejected this view. It began its analysis,

however, by explaining that under other circumstances, the

changes made during the relocation would justify recognizing

a combined Naperville-Lisle unit, rather than a unit of only

former Naperville employees. Specifically, many of the

similarities between the two units – the fact that the

10

mechanics did the same work side-by-side, under the same

supervision, for the same wages and benefits – indicated that

the units were no longer distinct. Dodge of Naperville, 2012

WL 30418, at *2. The Board further explained that these

changes usually would constitute the sort of “compelling

circumstance” that would justify disregarding a unit with a

twenty-year bargaining history. Id.

But not so here, where many of the employer’s unilateral

changes to the former Naperville employees’ working

conditions – such as reductions in take-home pay and inferior

benefits, to conform to the Lisle employees’ conditions –

were put into place without the required effects bargaining.

Because these changes were unlawful, they could be

disregarded in the analysis. Id. at *3. Moreover, the Board

reasoned, the employer’s failure to engage in any sort of

effects bargaining “ma[de] it impossible to assess what the

terms and conditions of the Naperville employees would have

been after the relocation, had the Respondent not acted

unlawfully.” Id. (citing Deaconess Medical Center, 314

N.L.R.B. 677, 677 n.1 (1994), and Holly Farms Corp., 311

N.L.R.B. 273, 279 n.25 (1993)). The Board therefore

concluded that the changed circumstances did not compel

modification of the historic Naperville unit at that time.

We review the Board’s determination of the appropriate

bargaining unit deferentially, as “the NLRA vests in the

Board authority to determine ‘the unit appropriate for the

purposes of collective bargaining.’” Serramonte, 86 F.3d at

236 (quoting 29 U.S.C. § 159(b) (1994)). We recognize that

“the Board’s discretion in this area is broad, reflecting

Congress’ recognition of the need for flexibility in shaping

the bargaining unit to the particular case.” Id. (quoting NLRB

v. Action Automotive, Inc., 469 U.S. 490, 494 (1985))

(brackets and internal quotation marks omitted); see also

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United Food & Commercial Workers Local 540, 519 F.3d at

494 (Because a determination of an appropriate bargaining

unit “requires a fact-intensive inquiry and a balancing of

various factors, the Board has broad discretion in making the

determination; we have said its decision is entitled to wide

deference.”) (internal quotation marks omitted). We also

have long observed that “the Board need only select an

appropriate unit, not the most appropriate unit.” Serramonte,

86 F.3d at 236 (emphasis in original) (brackets and internal

quotation marks omitted).

When determining whether a smaller bargaining unit is

appropriate, as opposed to a larger unit, the Board looks to

whether there is a “community of interest” among the

employees. United Food & Commercial Workers Local 540,

519 F.3d at 494 (internal quotation marks omitted). In doing

so, the Board considers factors such as “‘the employees’

wages, hours and other working conditions; commonality of

supervision; degree of skill and common functions; frequency

of contact and interchange with other employees; and

functional integration.’” Id. (quoting Sundor Brands, Inc. v.

NLRB, 168 F.3d 515, 518 (D.C. Cir. 1999)); see also Home

Depot USA, 331 N.L.R.B. 1289, 1290 (2000) (mentioning

these factors, as well as “employment benefits,” “amount of

working time spent away from the employment or plant

situs,” and “history of bargaining”).

The traditional community of interest analysis may be

modified under particular circumstances, and two such

modifications are relevant here. First, the Board is reluctant

to alter a historical relationship between a unit and its union,

and it therefore gives significant weight to a unit’s bargaining

history. Specifically, the Board demands that a party

challenging a historical unit show that “compelling

circumstances” warrant modification of the unit. Trident

12

Seafoods, Inc. v. NLRB, 101 F.3d 111, 118 (D.C. Cir. 1996);

ADT Security Servs., 355 N.L.R.B. 1388, 1396 (2010).

Second, when evaluating the community of interest factors,

the Board ignores any impermissible changes made

unilaterally by the employer (for example, changes made

without effects bargaining, if that was required). In re

Comar, Inc., 339 N.L.R.B. 903, 911 (2003) (“Comar I”) (“To

hold otherwise would allow [the employer] to benefit from its

own unlawful conduct.”), enforced, 111 F. App’x 1 (D.C. Cir.

2004); Holly Farms Corp., 311 N.L.R.B. at 279.

The Board applied these legal principles when it

concluded that Burke Automotive had failed to establish

compelling circumstances that would justify disregarding the

historic Naperville unit. Burke argues that this conclusion

was erroneous for various reasons. For the following reasons,

all of Burke’s arguments must be rejected.

Burke Automotive first argues that the NRLB applied a

“new standard” when it applied the “compelling

circumstances” test discussed above. Petitioner’s Br. 3, 26.

Burke is incorrect about the novelty of the “compelling

circumstances” test. As noted, the Board has repeatedly held

that a historical bargaining unit remains appropriate absent a

showing of “compelling circumstances,” as this Court has

recognized. Southern Power Co. v. NLRB, 664 F.3d 946, 951

(D.C. Cir. 2012) (discussing “compelling circumstances”

standard); Cmty. Hosps. of Cent. California v. NLRB, 335

F.3d 1079, 1085 (D.C. Cir. 2003) (same); Trident Seafoods,

101 F.3d at 118 (same).

Burke next argues that the Board should have applied an

“accretion” doctrine. “Accretion is the addition of a group of

employees to an existing union-represented bargaining unit

without a Board election.” Dean Transp., Inc. v. NLRB, 551

13

F.3d 1055, 1067 (D.C. Cir. 2009) (emphasis added). 4 The

Board has not applied the doctrine where, as here, the larger

unit was not organized and had no bargaining representative.

See N.Y. Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070,

1077 (D.C. Cir. 2007). Rather than relying on the accretion

doctrine, the Board framed its decision in accordance with its

presumption against disturbing a historical bargaining unit.

This was consistent with Board precedent.

Burke also contends that the Board’s decision in Brown

Truck & Trailer Manufacturing Co., 106 N.L.R.B. 999

(1953), establishes that a historical union cannot bargain over

the terms and conditions of unit employees at a new facility

where non-unit employees work. See Petitioner’s Br. 25.

Burke’s assertion misconstrues the case. Brown Truck merely

stands for the proposition that a bargaining unit that is

transferred to another facility cannot bargain over the terms

and conditions of employment for all of the employees at the

new facility. 106 N.L.R.B. at 1002. This principle – that a

union cannot bargain over the terms and conditions of

employment for employees it does not represent – is a core

tenet of labor law. See Int’l Ladies’ Garment Workers’ Union

v. NLRB, 366 U.S. 731, 736-37 (1961) (holding that a union

cannot represent a group of employees for which it does not

enjoy majority support). But it is inapposite here, where the

Board was simply considering whether the Union could

continue representing the six former Naperville employees.

4

When considering whether a smaller unit has been accreted into a

larger unit, the Board evaluates whether the two merged units form

an “overwhelming community of interest.” Safeway Stores, Inc.,

256 N.L.R.B. 918, 918 (1981). Even if accretion were relevant

here, it is not clear whether this standard is meaningfully different

from the “compelling circumstances” test.

14

It is only Burke Automotive’s last argument that gives us

pause. Burke questions whether, even if it had engaged in

effects bargaining with the Union, any changes made with

respect to mandatory bargaining topics would have been

sufficient to maintain the distinctness of the historic

Naperville and Lisle units. Burke points out that in other

cases where the Board has refused to disturb a historical

bargaining unit after a relocation or merger, additional factors

beyond wages and benefits indicated that the historical unit

remained distinct. For example, in Comar II, the Board found

that changed circumstances did not compel disregarding a

historical bargaining unit where an employer relocated a

group of employees from one facility to another but kept the

two sets of employees at the new facility separate from each

other and under different supervision. 349 N.L.R.B. at 360;

see also ADT, 355 N.L.R.B. at 1388-89 (finding no

compelling circumstances, despite merger of two units of

service employees, where each set of employees retained

different terms of employment, including – unlike here –

different primary work locations).

Although this is a tougher call, we conclude that the

Board’s decision was supported by substantial evidence and

that it was not arbitrary. It is clear that the Naperville

employees could have bargained for “wages, hours and other

working conditions” that were different from those of the

Lisle employees and were more consistent with the terms

outlined in the CBA; this weighs against finding a community

of interest. Moreover, the bargaining process is a flexible

one, where an employer is obligated to consider in good faith

“any proposals” submitted by the union. First Nat’l Maint.

Corp., 452 U.S. at 678-79 n.17. Although Congress has

limited mandatory subjects of bargaining “to matters of

‘wages, hours, and other terms and conditions of

employment,’” an employer and a union sitting down at the

15

bargaining table “are free to bargain about any legal subject.”

Id. at 674 (quoting 29 U.S.C. §§ 158(d) and 158(a)(5)).

Burke and the Union could have agreed to other changes that

would have led the Naperville employees to have, for

example, distinct supervisors or spheres of work from the

Lisle employees. There is uncertainty about what the

relocation would have looked like had effects bargaining

taken place, and the Board found that it would be unfair to

permit Burke to benefit from the uncertainty created by its

unlawful refusal to bargain. In view of the “wide deference”

accorded to the Board, United Food & Commercial Workers

Local 540, 519 F.3d at 494, we cannot say that this was error.

We note, however, that our decision is limited to these

particular facts. We might have reached a different

conclusion had effects bargaining taken place and resulted

only in modest differences between the two groups in wages

and benefits. The Board itself has noted that it can be

unworkable to continue recognizing a union representing only

a historic bargaining unit if unit employees are working side-

by-side with non-unit employees. See Abbott-Northwestern

Hosp., 274 N.L.R.B. 1063, 1067 (1985) (recognizing the

potential difficulty in having unit and non-unit employees

working alongside each other, performing the same jobs). It

may turn out that Burke’s withdrawal of recognition was

simply premature – but premature is still improper. We

therefore uphold as reasonable the Board’s conclusion that

Burke Automotive unlawfully withdrew recognition of the

Union when it did so immediately upon the relocation, prior

to any effects bargaining.

C.

Burke Automotive also challenges the Board’s decision

by attacking the composition of the Board itself. Burke

16

argues that the Board was operating with only two valid

members at the time that the decision was issued, and that the

Board consequently lacked the requisite quorum. According

to the employer, the Board’s opinion is therefore invalid. See

New Process Steel v. NLRB, 130 S. Ct. 2635, 2640-42 (2010)

(holding that the Board cannot render decisions when its

membership falls below three).

The Board’s opinion was issued on January 3, 2012. It is

undisputed that on that date, the three members that issued the

opinion – Chairman Mark G. Pearce, Member Brian Hayes,

and Member Craig Becker – were the only individuals acting

as Board members at that time. It also is undisputed that the

appointment of Craig Becker (who was recess appointed in

the second session of the 111th Congress) expired at the end

of the first session of the 112th Congress. See U.S. Const.,

art. II § 2, cl. 3 (“[The President] shall have power to fill up

all vacancies that may happen during the recess of the Senate,

by granting commissions which shall expire at the end of their

next session.”).

Burke Automotive argues that Becker’s appointment

ended on December 17, 2011, when the Senate agreed to

adjourn and convene for pro forma sessions only every

Tuesday and Friday between that date and January 23, 2012.

According to Burke, this action triggered the end of the

session and the beginning of an inter-session recess.

This argument has no merit. See D.R. Horton, Inc. v.

NLRB, 737 F.3d 344, 352-53 (5th Cir. 2013) (rejecting the

same argument regarding Member Becker’s service). The

Supreme Court recently observed that the end of an annual

session is triggered by a recess only if the Senate adjourns

sine die – that is, without specifying a date to return. NLRB v.

Noel Canning, 134 S. Ct. 2550, 2560-61 (2014) (“The Senate

17

or the House of Representatives announces an inter-session

recess by approving a resolution stating that it will ‘adjourn

sine die,’ i.e., without specifying a date to return (in which

case Congress will reconvene when the next formal session is

scheduled to begin).”). Because the Senate convened every

few days after December 17, the short recesses that took place

were intra-session recesses – in other words, the prior session

did not end. The first session of the 112th Congress instead

ended at noon on January 3, 2012, when the second session

began. See U.S. Const., amend. XX, § 2 (“The Congress shall

assemble at least once in every year, and such meeting shall

begin at noon on the 3d day of January, unless they shall by

law appoint a different day.”); D.R. Horton, 737 F.3d at 352

(“Because there was no sine die adjournment on an earlier

date, one Senate session ended on January 3, 2012,

immediately before the next session began at noon.”).

In its reply, Burke suggests (without any evidence or

argument) that perhaps the Board’s order issued after noon on

January 3, 2012, after Becker’s appointment expired.

Because we do not consider arguments raised for the first time

on reply, we do not address this argument. Petrochem

Insulation, Inc. v. NLRB, 240 F.3d 26, 30 (D.C. Cir. 2001). 5

5

Burke Automotive also contends that the Board abused its

discretion in issuing an affirmative bargaining order. See

Petitioner’s Br. 38. Although the affirmative bargaining order

originated with the ALJ, Burke did not object to the nature of that

order before the Board and has not explained its failure to do so.

We therefore lack authority to consider its objection here. See 29

U.S.C. § 160(e) (“No objection that has not been urged before the

Board . . . shall be considered by the court, unless the failure or

neglect to urge such objection shall be excused because of

extraordinary circumstances.”); Alwin Mfg. Co. v. NLRB, 192 F.3d

133, 143 (D.C. Cir. 1999) (“A court of appeals altogether ‘lacks

jurisdiction to review objections that were not urged before the

18

III.

For the foregoing reasons, we find no error in the Board’s

conclusions with respect to Burke Automotive’s unlawful

withdrawal of recognition. We also reject Burke’s other

challenges to the Board’s decision. We therefore deny

Burke’s petition for review and grant the Board’s cross-

application for enforcement.

So ordered.

Board.’”) (quoting Woelke & Romero Framing, Inc. v. NLRB, 456

U.S. 645, 665-66 (1982)).