Dodge of Naperville, Inc. and v. NLRB , 796 F.3d 31 ( 2015 )

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
4
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.
5
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.
6
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.
7
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.
9
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
11
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)).