                                                                    FILED
                                                         United States Court of Appeals
                                  PUBLISH                        Tenth Circuit

                  UNITED STATES COURT OF APPEALS               August 27, 2014
                                                             Elisabeth A. Shumaker
                             TENTH CIRCUIT                       Clerk of Court



 TEAMSTERS LOCAL UNION NO.
 455,

              Petitioner,

 v.                                                 No. 12-9519

 NATIONAL LABOR RELATIONS
 BOARD,

              Respondent.


 HARBORLITE CORPORATION,

              Intervenor.


               PETITION FOR REVIEW OF AN ORDER OF
              THE NATIONAL LABOR RELATIONS BOARD
                       (NLRB No. 27-CA-21386)


Michael J. Belo, Berenbaum Weinshienk PC, Denver, Colorado, 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, Georgia (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




                                       -2-
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.

                                              -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 intra-

session 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. 134 S.

Ct. 2550, 2567, 2573 (2014). The Court did go on to hold several NLRB

members’ appointments unlawful because they occurred during a three-day intra-

session 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

                                        -4-
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, 132 S. Ct. 1826, 1834 (2012); Richison v.

Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011); see also 29 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

                                        -5-
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

decisionmaking 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 (1991) (“Appointments Clause




                                         -6-
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



       1
         The court might yet have discretion afforded by statute to decide whether
the Board was properly composed even though the question isn’t jurisdictional
and even though the parties never raised it. The D.C. Circuit held as much in
Noel Canning, 705 F.3d at 497-98, and we see no occasion to disagree with its
opinion on that score. But the lack of any advocacy — and after the Supreme
Court’s Noel Canning instruction, any authority — suggesting a problem with Mr.
Becker’s appointment, together with the ease with which the merits of this case
can be resolved, conspire to convince us that sua sponte intervention in this case
isn’t appropriate.

                                         -7-
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. 22, 2011). The Board ordered Harborlite to cease

making such threats and to post a notice admitting its violation of the law —

punishments the company acceded to voluntarily. So far so good in the union’s

eyes — but not far or good enough. As the union sees things, Harborlite’s

lockout was itself unlawful and this entitles its union employees to back pay.

         Like the Board before us, we cannot agree. The Supreme Court has long

instructed that an employer may, consistent with the NLRA, lock out employees

during collective bargaining negotiations to “bring[] economic pressure to bear in

support of [its] legitimate bargaining position.” Am. Ship Bldg. Co. v. NLRB, 380

U.S. 300, 318 (1965); see also Serv-Air, Inc. v. NLRB, 395 F.2d 557, 562 (10th

Cir. 1968). It is equally settled that during a lawful lockout an employer may hire

temporary replacement employees to get its work done. See NLRB v. Brown, 319

F.2d 7, 11 (10th Cir. 1963), aff’d, 380 U.S. 278 (1965); Harter Equip., Inc., 280

N.L.R.B. 597 (1986), review denied sub nom. Local 825, Int’l Union of Operating




                                          -8-
Eng’rs v. NLRB, 829 F.2d 458 (3d Cir. 1987). We see no way we might now

permissibly overturn such long-settled precedent.

      To be sure, the union doesn’t ask us to do quite so much. Its position is a

bit more nuanced than that: it doesn’t dispute that lockouts can be lawful or that

companies may hire temporary workers during lockouts. Instead, it contends a

previously lawful lockout becomes unlawful when a company threatens to hire not

temporary workers but permanent ones. It is Harborlite’s initial (if quickly

withdrawn) threat to hire permanent replacement workers, the union says, that

tainted its otherwise lawful lockout and rendered it unlawful.

      This argument hinges on an uncertain premise. Implicit in the union’s

position is the belief that hiring permanent workers during a lockout, or

threatening to do so, violates the NLRA. But that belief isn’t obviously true.

What if an employer is tempted toward permanent replacement not to “interfere

with, restrain, or coerce” employees seeking to exercise their collective

bargaining rights but for entirely licit business reasons — expecting, for example,

that better qualified replacements might be found through a promise of more-

than-merely-temporary employment? Cf. Medite of N.M., Inc. v. NLRB, 72 F.3d

780, 788 (10th Cir. 1995) (“allowing replacement workers to be kept on

permanently” helps give “the replacement workers adequate incentive to take

replacement jobs”). Consider, as well, that employers are permitted to hire

permanent replacements for striking employees. See, e.g., NLRB v. Int’l Van

                                        -9-
Lines, 409 U.S. 48, 50 (1972); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379

(1967); NLRB v. MacKay Radio & Tel. Co., 304 U.S. 333, 345-46 (1937). If that

doesn’t “interfere with, restrain, or coerce” employees exercising their collective

bargaining rights during a strike, how does the same conduct do so during a

lockout? Doesn’t labor law generally recognize employees’ right to strike for the

sake of a better deal no less than their right to hold out against an employer’s

lockout? Cf. 29 U.S.C. § 163 (“Nothing in this subchapter, except as specifically

provided for herein, shall be construed so as either to interfere with or impede or

diminish in any way the right to strike . . . .”). Perhaps there are answers to these

statutory interpretation questions, but they are not insignificant ones. Indeed, the

Supreme Court has twice noted but declined to resolve them. See Am. Ship Bldg.

Co., 380 U.S. at 308 n.8; NLRB v. Brown, 380 U.S. 278, 292 n.6 (1965).

      Happily, to decide this particular case we need not attempt any answers of

our own either. Neither need we evaluate the Board’s views on the matter or the

amount of deference owed them. Even granting the union its premise — even

assuming without deciding that threatening to hire permanent replacement

workers itself violates the NLRA — it doesn’t necessarily follow that such threats

also and automatically turn an otherwise lawful lockout unlawful and in this way

generate a second violation of the statute.

      Why not? As the Board explained, there is no evidence in our record that

the hastily made and quickly withdrawn threat did anything to harm the parties’


                                        - 10 -
collective bargaining efforts or impeded resolution of their labor dispute. Given

this, the Board declared that, while the threat itself may be unlawful, it didn’t

transform the lockout itself into an act that “interfere[d] with, restrain[ed], or

coerce[d]” collective bargaining employees. In reaching this conclusion, the

Board pointed to and relied on its decision in Peterbilt Motors Co. — a case in

which the Board held that an employer’s unlawful conduct during an otherwise

lawful lockout won’t render the lockout itself unlawful so long as the conduct

doesn’t “materially affect the progress of negotiations.” 357 N.L.R.B. No. 13, at

4 (July 15, 2011), review denied sub nom. UAW v. NLRB, 516 F. App’x 488 (6th

Cir. 2013).

      Before us, the union doesn’t argue that the Board’s holding — that an

unconsummated and rapidly withdrawn threat to hire permanent replacement

workers must materially affect the progress of negotiations before potentially

rendering an otherwise lawful lockout unlawful — is inconsistent with the NLRA.

We have no claim before us that the Board’s view on this score defies the statute

under which it operates. Instead, the union’s theory is again more nuanced and a

good deal more modest too. The union argues only that the Board’s rule and its

application in this case defy the Board’s own administrative precedents.

      To be sure, the union here touches on an important principle. It is beyond

dispute that an administrative agency “may not . . . depart from a prior policy sub

silentio or simply disregard rules that are still on the books.” FCC v. Fox Tel.


                                         - 11 -
Stations, Inc., 556 U.S. 502, 515 (2009). The Administrative Procedure Act’s ban

on arbitrary agency action demands more than that. Id. (citing 5 U.S.C.

§ 706(2)(A)). Surely the most basic of law’s guarantees, due process and equal

treatment, do too. And judicial attention to these demands is, if anything,

especially important where (as in labor law) the governing statute speaks in

indeterminate terms and the agency’s decisions rarely derive from “any specific

statutory language at all.” Catherine L. Fisk & Deborah C. Malamud, The NLRB

in Administrative Law Exile: Problems with Its Structure and Function and

Suggestions for Reform, 58 Duke L.J. 2013, 2039 (2009).

      In our case, however, we just cannot discern any inconsistency in the

Board’s treatment of its own precedent. The union says its silver bullet is Ancor

Concepts, Inc., 323 N.L.R.B. 742 (1997), enforcement denied on other grounds,

166 F.3d 55 (2d Cir. 1999). But in Ancor the Board found a lockout illegal only

after an employer told his locked-out employees that he had permanently replaced

them. See id. at 744-45. By its very terms, then, nothing in Ancor speaks to the

effect of a threat to hire permanent replacements that the employer does not claim

to have acted on — let alone one the employer soon pledges not to act on. For

similar reasons, the union is wrong to claim the Board’s decision betrays an

inconsistency with its decisions in Globe Business Furniture, Inc., 290 N.L.R.B.

841 (1988), and KLB Industries, Inc., 357 N.L.R.B. No. 8 (July 26, 2011). The

union reads both cases as holding lockouts unlawful because of the employer’s

                                       - 12 -
unremedied NLRA violations. But both cases involved employer misconduct that

materially impeded collective bargaining negotiations — the withholding of

critical information from unionized employees. See Globe Bus., 290 N.L.R.B. at

841 n.2; KLB Indus., 357 N.L.R.B. No. 8, at 5. Meanwhile, the Board found in

this case that Harborlite’s threat didn’t have a material impact on negotiations and

that finding is supported by substantial (indeed, uncontested) record evidence.

      Having failed to suggest any inconsistency by the Board so far, the union

shifts gears, directing us to an altogether different line of administrative

precedent it says the Board failed to abide — Passavant Memorial Area Hospital,

237 N.L.R.B. 138 (1978), and Grondorf, Field, Black & Co., 318 N.L.R.B. 996,

996-97 (1995). In those cases, the Board held that an employer seeking to avoid

liability through the “repudiation or disavowal of [its] coercive conduct” should

at a minimum “give assurances to employees that in the future their employer will

not interfere with the exercise of their” rights. Passavant, 237 N.L.R.B. at 138-

39. But this line of precedent is no more helpful than the last to the union’s

cause. True, in our case the Board did impose liability on Harborlite for its threat

to hire permanent replacements, holding that the threat violated § 158(a)(1)

because the company didn’t repudiate it in the particular fashion Passavant

specifies. And to that extent, we readily acknowledge parallels between our case

and the precedent the union cites. But the Board’s holding in this particular isn’t

one the company or the union disputes. Rather, the question before us is whether

                                        - 13 -
the company’s threat also had the additional knock-on effect of rendering an

otherwise lawful lockout unlawful. Precisely nothing in Passavant or Grondorf

speaks to that question, either expressly or by necessary implication. The union’s

cases establish that an insufficiently repudiated violation of the statute still counts

as a violation; they do not establish that an insufficiently repudiated violation

causes a second and independent violation of the statute.

      At the end of the day, the union musters no justification for forcing the

Board to act where it has chosen not to act. In saying this much we don’t mean to

suggest we endorse every jot and tittle in the administrative precedents we’ve

discussed. To resolve this case, we need and do hold only that the Board’s

refusal to order additional remedial measures wasn’t arbitrary in light of the

administrative precedents the union has identified. The petition for review is

denied.




                                         - 14 -
