The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted March 24, 2016 Decided May 17, 2016
No. 15-1029
NOEL CANNING, A DIVISION OF THE NOEL CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 15-1046
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,
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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 for the Court filed by Senior Circuit Judge
SENTELLE.
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 (D.C. Cir.
2013). On certiorari, the Supreme Court affirmed this Court’s
decision concluding that the appointments were invalid, albeit
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on modified reasoning. See NLRB v. Noel Canning (Noel
Canning II), 134 S. Ct. 2550 (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 NLRB 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 F. App’x 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
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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, § 160(e) makes no mention of remand or, more
generally, when the Board may reassume jurisdiction after
vacatur. A court’s authority to remand comes instead from its
“equity powers.” Ford Motor Co. v. NLRB, 305 U.S. 364,
373 (1939). Therefore, this case is not about § 160(e) as Noel
Canning would have it, but rather the interpretation of our
mandate in Noel Canning I.
The question presented is whether our mandate in Noel
Canning I permits a properly reconstituted Board to
reconsider the merits of the case. Noel Canning argues that it
does not. Judicial mandates, Noel Canning claims, must be
read according to their “precise terms.” NLRB v. Donnelly
Garment Co., 330 U.S. 219, 226 (1947). Since the Noel
Canning I opinion and judgment stated only that Noel
Canning’s petition for review is granted, the Board’s order is
vacated, and the cross-application for enforcement is
denied—with no mention of remand—Noel Canning contends
it cannot be read as giving the Board, once properly
constituted, authority to take up the case again. See Noel
Canning I, 705 F.3d at 515; Judgment, Noel Canning I, No.
12-1115, Doc. No. 1417095 (D.C. Cir. Jan. 25, 2013).
Our sister circuits disagree. In NLRB v. Whitesell
Corporation, 638 F.3d 883, 888 (8th Cir. 2011), the Eighth
Circuit considered whether the Board had jurisdiction to
reissue an order that had been vacated for lack of a quorum in
light of New Process Steel, L.P. v. NLRB, 560 U.S. 674
(2010). Like this Court’s judgment in Noel Canning I, the
Eighth Circuit’s order denying the Board’s application for
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enforcement did not remand the case. See NLRB v. Whitesell
Corp., 385 F. App’x 613, 614 (8th Cir. 2010) (unpublished
per curiam). Nonetheless, when considering the authority of a
properly constituted Board to reissue the order, the Eighth
Circuit stated that it had “expected that the Board would visit
the merits of th[e] case again” with a full complement of
members. Whitesell Corp., 638 F.3d at 889. Because the
denial of enforcement had been based on the lack of quorum,
not the merits, the Eighth Circuit held that its prior decision
on the New Process issue did “not preclude the Board, now
properly constituted, from considering [the merits] anew and
issuing its first valid decision.” Id. The Seventh and Fourth
Circuits have reached the same conclusions in the wake of
Noel Canning II. See Big Ridge, Inc., 808 F.3d at 711
(holding that when it vacated a Board decision without
remand because the Board lacked a proper quorum, it had
“expected the Board to consider the case anew once it
regained a quorum”); Huntington Ingalls Inc., 631 F. App’x at
131 (holding that “[a] decision finding the lack of a proper
quorum clearly contemplates further Board action”).
Petitioner provides no convincing reason for us to
interpret our Noel Canning I mandate differently than our
sister circuits have interpreted theirs. Noel Canning points to
several cases in which courts have rebuked the Board for
reopening a matter in the absence of a remand—most notably,
Int’l Union of Mine, Mill & Smelter Workers v. Eagle-Picher
Mining & Smelting Co., 325 U.S. 335 (1945); George Banta
Co. v. NLRB, 686 F.2d 10 (D.C. Cir. 1982); and NLRB v.
Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996)—but, as the
Seventh Circuit observed when confronted with many of the
same precedents, “all of these cases can be distinguished
because they deal with appellate court rulings on the merits,
whereas . . . the case at hand involve[s] denial[] of
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enforcement due to lack of a quorum.” Big Ridge, Inc., 808
F.3d at 712. This is a distinction with a difference.
When a court affirms or rejects an agency’s decision on
the merits, parties to the litigation have important interests in
the finality of that decision. See Eagle-Picher, 325 U.S. at
340 (“The party adverse to the administrative body is entitled
to rely on the conclusiveness of a decree entered by a court to
the same extent that other litigants may rely on judgments for
or against them.”). Those interests are absent when a court
rules only that an administrative body never had a quorum to
issue a decision in the first place. See Huntington Ingalls,
Inc., 631 F. App’x at 130-31. In fact, far from promoting
finality, Noel Canning’s interpretation of this Court’s mandate
in Noel Canning I actually “deprives the employees” and the
company itself “from having [the case] resolved on the merits
once and for all by this court.” Id.
After the Supreme Court issued its ruling in Noel
Canning II, this Court remanded more than a dozen pending
cases to the Board, which by then had five validly appointed
members, so that properly constituted panels could issue new
rulings on the merits. Cf. Nguyen v. United States, 539 U.S.
69, 83 (2003) (finding remand to court of appeals
“appropriate” after a case was decided by an improperly
constituted panel). By contrast, when this Court decided Noel
Canning I, we did not remand: indeed, “at that time, there
was no properly constituted Board to which [this Court] could
remand the proceedings.” Big Ridge, Inc., 808 F.3d at 711.
Noel Canning’s attempt to exploit these circumstances in
order to prevent the Board from resolving its case contradicts
the principle that a “mandate is to be interpreted reasonably
and not in a manner to do injustice.” Bailey v. Henslee, 309
F.2d 840, 844 (8th Cir. 1962) (internal quotation marks and
citation omitted). Here, the Board’s decision to reconsider the
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merits of the case and issue a new decision and order was not
only consistent with this Court’s Noel Canning I mandate, but
also reasonable and in furtherance of justice.
We offer one further thought with respect to Noel
Canning’s petition. We recently observed in a different
context that “common sense sometimes matters in resolving
legal disputes.” Southern New England Telephone Co. v.
NLRB, 793 F.3d 93, 94 (D.C. Cir. 2015). 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. In other words, it seems
to us highly unlikely that the law would establish that a
question properly presented to the labor board must pend
forever if the board for procedural or quorum-related reasons
invalidly entered its first order.
Turning to the Board’s cross-application for enforcement,
we note that, in its opening brief, Noel Canning does not
contest the Board’s findings that it violated Section 8(a)(1)
and (5) of the NLRA by refusing to reduce to writing and
execute a collective bargaining agreement arrived at through
collective bargaining with the Teamsters Local 760.
Therefore, we may summarily enforce the 2014 decision and
order. See, e.g., Allied Mech. Servs., Inc. v. NLRB, 668 F.3d
758, 765 (D.C. Cir. 2012) (uncontested Board findings may
be summarily enforced). See also Fox v. Gov’t of D.C., 794
F.3d 25, 29 (D.C. Cir. 2015) (argument not raised in an
opening brief is forfeited). Moreover, in Noel Canning I, this
Court concluded that the findings in the Board’s 2012
decision and order, which were adopted by reference in its
2014 decision and order, were supported by substantial
evidence. See 705 F.3d at 493-96. After reviewing the record
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and the parties’ briefing, we see no reason to depart from that
conclusion here.
CONCLUSION
For the foregoing reasons, we deny Noel Canning’s
petition for review and grant the Board’s cross-application for
enforcement.
So ordered.