                              UNPUBLISHED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,
                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Enforcement granted by unpublished per curiam opinion.




                                    2
Nos. 14-2051/2148.     ARGUED: Gregory Branch Robertson, HUNTON &
WILLIAMS    LLP,    Richmond,   Virginia,   for   Petitioner/Cross-
Respondent.      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/Cross-
Petitioner.      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.




                                 3
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,

                                          4
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.

                                                  5
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

                                          6
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 cross-

application 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

                                         7
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

                                          8
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

                                              9
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

                                               10
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




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