U.S. Court of Appeals for the Fourth Circuit

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Fourth Circuit affirms jurisdiction of NLRB in absence of express remand by an appellate court

November 25, 2015

The Fourth Circuit held that the NLRB had jurisdiction in a post-Noel Canning case even in the absence of an express remand.

In the first petition for review, the Fourth Circuit ruled that the Board lacked a quorum due to President Obama’s invalid recess appointments, and reversed the Board’s order without remanding. Following the Supreme Court’s decision in NLRB v. Noel Canning, the Supreme Court denied the NLRB’s petition for writ of certiorari in this case. The NLRB, now lawfully constituted, sua sponte reviewed this case with a new panel, and arrived at the same conclusion—that the company acted unlawfully in refusing to bargain. The company filed another petition for review, arguing that the NLRB lacked jurisdiction to reanimate proceedings in the absence of a remand from the Fourth Circuit.

The U.S. Chamber’s brief argued that the NLRB could not revisit orders once appellate proceedings commenced and did not regain jurisdiction over a proceeding until a court remanded it back to the Board. The Fourth Circuit disagreed, concluding that because its earlier decision was not on the merits, a now-lawfully constituted Board could reconsider the case without a remand.

U.S. Chamber files amicus brief

January 12, 2015

In its brief the Chamber asked the Fourth Circuit to grant Huntington Ingalls’s petition for review and clarify whether section 10(e) of the National Labor Relations Act allows the National Labor Relations Board (NLRB) to resume processing of a case in the absence of an express remand by an appellate court. The brief argues that the Board’s attempted justification to reopen the finality of the Court’s decision interferes with investment stability and security which is needed to effectively pursue economic growth and long-term decision making for the business community. The court has already held, that the Board does not regain jurisdiction over a proceeding unless and until the court remands back to the Board, explaining that, when it denies “the Board’s request to enforce its bargaining order,” it “terminat[es] all administrative proceedings relating to the case.” NLRB v. Lundy Packing Co., 81 F.3d 25, 26 (4th Cir. 1996).

The brief goes on to point out that adopting the Board’s rule would create enormous uncertainty regarding the finality of judicial decisions. The Board’s proposed rule would allow it to interfere with ongoing disputes and retroactively amend final judgments with which it disagrees. Furthermore, without finality, companies cannot make long-term business decisions—such as expansion plans, hiring, and firing—and employees cannot rely on awards that they receive or employment that they have procured.

Noel J. Francisco, James M. Burnham, and Sarah A. Hunger of Jones Day represented the U.S. Chamber as co-counsel to the U.S. Chamber Litigation Center.

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