Teamsters Local Union No. 455 v. Nat'l Labor Relations Bd.

• Decision Date: 27 August 2014
• Docket Number: No. 12–9519.,12–9519.
• Citation: 765 F.3d 1198
• Parties: TEAMSTERS LOCAL UNION NO. 455, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Harborlite Corporation, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

765 F.3d 1198

TEAMSTERS LOCAL UNION NO. 455, Petitioner,

v. NATIONAL LABOR RELATIONS BOARD, Respondent.Harborlite Corporation, Intervenor.

No. 12–9519.

United States Court of Appeals, Tenth Circuit.

Aug. 27, 2014.

Michael J. Belo, Berenbaum Weinshienk PC, Denver, CO, 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, GA (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 (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 intrasession 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. ––– U.S. ––––, 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 intrasession 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 an intra-session recess exceeding two weeks—one lasting from March 26 to April 12, 2010. 156 Cong. Rec. S2180 (daily ed. Mar. 26, 2010) (statement of Sen. Kaufman);New Vista, 719 F.3d at 213. So it is that, after Noel Canning, there seems little reason to doubt the validity of the appointment before us and the power of the Board to issue the order under review.

To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer. One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always long enough. Cf. Noel Canning, 134 S.Ct. at 2599 (Scalia, J., concurring in the judgment).

But whatever questions may linger along these lines, we see no reason to venture any answers here. The ably represented parties didn't question the Board's authority in administrative proceedings and even now don't seek to press the issue. That's enough to end the matter. We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead. See Wood v. Milyard, ––– U.S. ––––, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir.2011); see also29 U.S.C. § 160(e); Pub. Serv. Co. of N.M. v. NLRB, 692 F.3d 1068, 1076 (10th Cir.2012).

Of course like most rules this waiver rule bears its exceptions. If, for example, we lacked jurisdiction to review the Board's decision we would have to admit it regardless of the parties' wishes. Here, though, our jurisdiction depends on the National Labor Relations Act, which confirms this court's authority to entertain the union's petition even if there happens to be some defect in the Board's composition. The statute authorizes courts of appeals to review “final order[s]” of the Board and to “enforc[e], modify [ ], ... or set[ ] aside” any Board order as the law requires. 29 U.S.C. § 160(f). In assessing whether a particular agency action is final, we ask “whether the action's impact is direct and immediate, whether the action marks the consummation of the agency's decision-making process, and whether the action is one by which rights or obligations have been determined.” Pub. Serv. Co. of Colo. v. U.S. EPA, 225 F.3d 1144, 1147 (10th Cir.2000) (brackets omitted). All of those things are present here: the Board's order denied the union's requested relief, marked the end of the road for the agency's consideration of the issue, and purported to decide the union's rights under the NLRA. The order could be invalid and issued without authority, but none of that would destroy our jurisdiction to hear the case. Indeed, it would be passing strange for an ultra vires agency action to be better insulated from judicial review than one issued under lawful authority. And so whatever the constitutional status of Mr. Becker's appointment, nothing prevents us from proceeding to decide the merits of our case. See, e.g., D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 351 (5th Cir.2013) (“[T]he validity of Member Becker's recess appointment is not a matter we must address for jurisdictional reasons.”); cf. Freytag v. Comm'r, 501 U.S. 868, 878–79, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (“Appointments Clause objections to judicial officers” are “nonjurisdictional structural constitutional objections”).¹*

The union's challenge on the merits arises from a routine collective bargaining dispute. When negotiations between the Teamsters and Harborlite reached an impasse, management told the union that unless it would agree to the company's final offer it would lock out union members and “immediately begin hiring permanent replacements for locked out employees.” Several days later—and (not incidentally) after the union initiated legal action—the company (sort of) changed its tune. While it continued the lockout and began hiring new workers, it said that “until further notice” these workers would only be temporary. Harborlite insisted it had a right to hire permanent replacements but promised to refrain from doing so—for the time being at least—“in an effort to show that [it was] being more than reasonable.” And in fact, in three months' time the company let its temporary workers go and permitted union members to return to work even though the union never did accept the company's purportedly final offer.

The Board agreed with the union that the act of threatening to hire permanent replacement workers violated 29 U.S.C. § 158(a)(1), a provision of the NLRA that says employers may not “interfere with, restrain, or coerce employees in the exercise of” their collective bargaining rights. See Harborlite Corp., 357 N.L.R.B. No. 151, at 1–2 (Dec....