UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2051

HUNTINGTON INGALLS INCORPORATED,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE 

WORKERS,

Intervenor.

------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,

Amicus Supporting Petitioner.

No. 14-2148

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

HUNTINGTON INGALLS INCORPORATED,

Respondent, 

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE 

WORKERS,
2

Intervenor.

-----------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,

Amicus Supporting Petitioner.

Petition for Review and Cross Application for Enforcement of an 

Order of the National Labor Relations Board. (05−CA−081306)

No. 14-2072

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

ENTERPRISE LEASING COMPANY SOUTHEAST, LLC,

Respondent.

_______________

 

On Application for Enforcement of an Order of the National 

Labor Relations Board. (11−CA−073779)

Argued: September 16, 2015 Decided: November 23, 2015

Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Enforcement granted by unpublished per curiam opinion. 
3

Nos. 14-2051/2148. ARGUED: Gregory Branch Robertson, HUNTON &

WILLIAMS LLP, Richmond, Virginia, for Petitioner/CrossRespondent. Heather Stacy Beard, Robert James Englehart, 

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for 

Respondent/Cross-Petitioner. ON BRIEF: Kurt G. Larkin, HUNTON & 

WILLIAMS LLP, Richmond, Virginia; Dean C. Berry, Assistant 

General Counsel, HUNTINGTON INGALLS INDUSTRIES, INC., Newport 

News, Virginia, for Petitioner/Cross-Respondent. Richard F. 

Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General 

Counsel, John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, David Seid, NATIONAL 

LABOR RELATIONS BOARD, Washington, D.C., for Respondent/CrossPetitioner. William H. Haller, Associate General Counsel, 

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, 

Upper Marlboro, Maryland, for Intervenor. Kate Comerford Todd, 

Steven P. Lehotsky, U.S. CHAMBER LITIGATION CENTER, Washington, 

D.C.; Noel J. Francisco, James M. Burnham, Sarah A. Hunger, 

JONES DAY, Washington, D.C., for Amicus Curiae. 

No. 14-2072. ARGUED: Heather Stacy Beard, David A. Seid, 

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for 

Petitioner. Dean John Sauer, JAMES OTIS LAW GROUP, LLC, St. 

Louis, Missouri; Daniel R. Begian, OGLETREE, DEAKINS, NASH, 

SMOAK & STEWART, P.C., St. Louis, Missouri, for Respondent. ON 

BRIEF: Richard F. Griffin, Jr., General Counsel, Jennifer 

Abruzzo, Deputy General Counsel, John H. Ferguson, Associate 

General Counsel, Linda Dreeben, Deputy Associate General 

Counsel, Robert J. Englehart, Supervisory Attorney, NATIONAL 

LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. 

Michael Martinich-Sauter, CLARK & SAUER, LLC, St. Louis, 

Missouri, for Respondent. 

Unpublished opinions are not binding precedent in this circuit.
4

PER CURIAM:

These refusal-to-bargain cases are before us for the second 

time on appeal. In the first appeal, Enterprise Leasing Company 

Southeast, LLC (Enterprise) and Huntington Ingalls, Incorporated 

(Huntington) challenged orders of the National Labor Relations 

Board (the Board) requiring each company to bargain with the 

union, Local 391 of the International Brotherhood of Teamsters 

in the case of Enterprise and the International Association of 

Machinists and Aerospace Workers in the case of Huntington, 

following Board-conducted union elections. Because each case 

involved the constitutional question of whether the President’s

three January 2012 appointments to the Board ran afoul of the 

United States Constitution’s Recess Appointments Clause, U.S. 

Const. art. II, § 2, cl. 3, thereby depriving the Board of a 

proper quorum, we first addressed whether each company violated 

the NLRA as a means of avoiding the constitutional question 

presented. NLRB v. Enterprise Leasing Co. Southeast, LLC, 722 

F.3d 609, 613-14 (4th Cir. 2013), cert. denied, 134 S. Ct. 2902 

(2014). On this nonconstitutional question, we agreed with the 

Board that both Enterprise and Huntington violated Sections 

8(a)(1) and (a)(5) of the National Labor Relations Act (NLRA), 

29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain with the 

unions, 722 F.3d at 616-20, 624-31. Because the 

nonconstitutional question was resolved in favor of the Board, 
5

we addressed the constitutional question presented. On this 

question, we held that the President’s three January 2012 

appointments to the Board violated the Recess Appointment 

Clause, and, therefore, the Board lacked a proper quorum when it 

issued its decisions in 2012. Id. at 631-60. Because the Board 

lacked a proper quorum, we “vacated” the Board’s decisions and 

denied enforcement of the Board’s orders. Id. at 660. 

Following our decision, the Board filed a petition for 

rehearing for the limited purpose of requesting that we modify 

our judgment to include language explicitly remanding the cases

to the Board for further proceedings. In so requesting, the 

Board posited that such a request was actually unnecessary given 

that our decision “anticipat[es] the possibility of issuance of 

new Board orders.” (Huntington J.A. 640). Nevertheless, the 

Board desired such language in our judgment to avoid “needless 

litigation.” (Huntington J.A. 640). Summarily, this court 

denied the petition for rehearing. The Board then filed a 

petition for a writ of certiorari with the United States Supreme 

Court.

In NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the 

Supreme Court resolved the constitutional question addressed by 

this court in its prior panel opinion. There, the Court 

affirmed the D.C. Circuit’s determination that the President’s 

three January 2012 appointments to the Board were invalid. Id.
6

at 2578. In so affirming, however, the Court took issue with 

the D.C. Circuit’s reasoning, opining that the Recess 

Appointments Clause applies to both inter-session recesses and 

“intra-session recess[es] of substantial length,” id. at 2561, 

as well as to Board vacancies that occur prior to or during the 

recess, id. at 2567. According to the Court, because the 

President’s three January 2012 appointments to the Board 

occurred during a three-day recess of the Senate, the recess was 

“too short a time to bring [the] recess within the scope of the 

Clause,” and, therefore, the recess appointments were invalid. 

Id. at 2557. Following the Court’s decision in Noel Canning, 

the Supreme Court denied the Board’s petition for a writ of 

certiorari in this case. NLRB v. Enterprise Leasing Co.

Southeast, LLC, 134 S. Ct. 2902 (2014).

On August 14, 2014, the Board’s Executive Secretary 

notified both Enterprise and Huntington that because the “Board 

panel that previously decided” each case was “not properly 

constituted,” the Board was going to consider each case “anew.” 

(Enterprise J.A. 467; Huntington J.A. 1808). Both Enterprise 

and Huntington objected to the Board’s consideration of their 

respective cases on the basis that, absent a remand from this 

court, the Board lacked jurisdiction.

On October 2, 2014, a properly constituted Board issued a 

decision in Enterprise’s case, and a similarly constituted Board 
7

issued a decision in Huntington’s case on October 3, 2014. The 

Board rejected Enterprise’s and Huntington’s arguments that the 

Board lacked jurisdiction to issue its decisions. The Board 

reasoned that our prior decision clearly contemplated further 

Board action and that such further action was consistent with 

the Eighth Circuit’s decision in NLRB v. Whitesell Corp., 638 

F.3d 883, 889 (8th Cir. 2011) (holding that the denial of 

enforcement on the basis that the Board lacked a proper quorum 

did not deprive the Board of jurisdiction to consider the case 

anew). On the merits, the Board adopted the reasoning of its 

earlier decisions, further observing that neither Enterprise nor 

Huntington offered “any newly discovered” or “previously 

unavailable evidence” that would “require the Board to 

reexamine” its earlier decisions. (Enterprise J.A. 472; 

Huntington J.A. 1816). The Board’s orders require Enterprise 

and Huntington to bargain with the unions upon request and 

embody any understanding in a signed agreement.

On October 6, 2014, Huntington filed a petition for review 

of the Board’s order against it. On October 8, 2014, the Board 

filed an application for enforcement of its order against 

Enterprise, and, on October 24, 2014, the Board filed a crossapplication for enforcement of its order against Huntington.

Relying on our decision in NLRB v. Lundy Packing Co., 81 

F.3d 25 (4th Cir. 1996) (Lundy II), Enterprise and Huntington 
8

first contend that the Board was without jurisdiction to 

consider the cases anew. We reject this argument for the simple 

reason that Lundy II is distinguishable from the case at hand.

In NLRB v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir.

1995) (Lundy I), we denied enforcement of the Board’s bargaining 

unit determination for a production and maintenance unit at 

Lundy Packing’s Clinton, North Carolina facility. Id. at 1579, 

1583. The union election that followed the Board’s bargaining 

unit determination resulted in a 318 to 309 win for the union. 

Id. at 1579. In denying enforcement of the Board’s bargaining 

unit determination, we held that the Board abused its discretion 

when it excluded certain employees from the bargaining unit. 

Id. at 1580-83. In response to our decision, the Board sought 

to revisit the union election results by “counting the 

challenged ballots.” Lundy II, 81 F.3d at 26. To prevent this, 

Lundy Packing sought a stay in our court. Id. We held that the 

Board was not at liberty to revisit the union election results, 

“[a]bsent a remand” from this court. Id. (citation and internal 

quotation marks omitted).

Enterprise and Huntington argue that per Lundy II the Board 

in this case was not at liberty to revisit their challenges to 

the union election results absent a remand from this court. We 

reject this argument for the simple reason that the court in 

Lundy I disposed of the case on the merits, while this court in 
9

its prior panel opinion did not. 

The approach adopted in Lundy II makes perfect sense where 

the Board seeks to revisit a merits determination made by this 

court. If the Board is permitted to do so, the products are the 

prevention of review by the Supreme Court and endless 

litigation. Id. Indeed, to have allowed the Board to 

continuously stab at our merits determination in Lundy I that 

the bargaining unit was underinclusive would have prevented 

Supreme Court review of our Lundy I decision and resulted in 

endless litigation. However, where the court denies enforcement 

on the basis that the Board lacked a proper quorum, as was the 

case here, Lundy II’s concerns of the prevention of Supreme 

Court review and endless litigation fall by the way side. No 

action by the Board is preventing Supreme Court review. In 

fact, our prior decision was brought to the Supreme Court for 

review, and the parties here are at liberty to seek such review 

from the decision we reach today. Likewise, the concerns of 

endless litigation are not present where the Board simply 

reconstitutes to obtain a proper quorum. Unlike Lundy II, the 

Board here is not looking to find a new factual or legal basis 

in which to justify its previous decisions. Rather, it

revisited the cases with a proper quorum, and the factual and 

legal basis of its decisions have remained the same. 

Moreover, the interpretation of Lundy II pressed by 
10

Enterprise and Huntington has its own shortcomings. First, 

their interpretation makes little sense because it deprives the 

employees of Enterprise and Huntington who have chosen union 

representation through valid union elections from having 

Enterprise’s and Huntington’s challenges to the union elections 

resolved on the merits once and for all by this court. We see 

nothing in the NLRA that intimates the type of deprivation of 

review pressed by Enterprise and Huntington. Second, their 

interpretation creates a circuit split and places us at odds 

with the well-reasoned decision by the Eighth Circuit in 

Whitesell. That court understandably carved out a very narrow 

exception to the remand rule where the court disposes of the 

case on the basis that the Board issued a quorumless decision. 

A decision finding the lack of a proper quorum clearly 

contemplates further Board action, and, thus, the Board here did 

not err when it revisited Enterprise’s and Huntington’s 

challenges to the union elections.

Next, Enterprise and Huntington contend that the properly 

reconstituted Board erred when it rejected their respective 

challenges to the union elections. These contentions mirror the 

challenges previously raised to this court in the prior appeal, 

and we reject them for the reasons stated in our prior panel 

opinion. Enterprise Leasing, 722 F.3d at 616-20, 624-31. 

Huntington also contends that because the bargaining unit has 
11

grown in size since the union election, we should refuse to 

enforce the Board’s order against Huntington. We have reviewed

this contention and find it to be without merit.

Accordingly, for the reasons stated herein, we grant 

enforcement of the Board’s orders.

ENFORCEMENT GRANTED