PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1514 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-73779) No. 12-2000 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; COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN HOTEL & LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALER- DISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT, Amici Supporting Petitioner. No. 12-2065 NATIONAL LABOR RELATIONS BOARD, Petitioner, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Intervenor, v. HUNTINGTON INGALLS INCORPORATED, Respondent. ----------------------------- CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN HOTEL & LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALER- DISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT, Amici Supporting Respondent. On Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board. (5−CA−81306) Argued: March 22, 2013 Decided: July 17, 2013 - 2 - Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Enforcement denied by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Duncan joined. Judge Duncan wrote a separate concurring opinion. Judge Diaz wrote an opinion concurring in part and dissenting in part. ARGUED: Beth S. Brinkmann, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., David A. Seid, Robert James Englehart, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board; James B. Coppess, AFL-CIO, Washington, D.C., for International Association of Machinists and Aerospace Workers. Daniel R. Begian, John P. Hasman, THE LOWENBAUM PARTNERSHIP, LLC, Clayton, Missouri, for Enterprise Leasing Company Southeast, LLC; Gregory Branch Robertson, Michael Randolph Shebelskie, HUNTON & WILLIAMS, LLP, Richmond, Virginia, for Huntington Ingalls Incorporated. ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney General, Scott R. McIntosh, Sarang V. Damle, Melissa N. Patterson, Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Ruth E. Burdick, Supervisory Attorney, Daniel A. Blitz, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board. D. Michael Linihan, THE LOWENBAUM PARTNERSHIP, LLC, Clayton, Missouri, for Enterprise Leasing Company Southeast, LLC. Kurt G. Larkin, HUNTON & WILLIAMS, LLP, Richmond, Virginia, Dean C. Berry, HUNTINGTON INGALLS INDUSTRIES, INC., Newport News, Virginia, for Huntington Ingalls Incorporated. William H. Haller, Associate General Counsel, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Upper Marlboro, Maryland, for International Association of Machinists and Aerospace Workers. Mark Theodore, PROSKAUER ROSE LLP, Los Angeles, California, Ronald E. Meisburg, Lawrence Z. Lorber, James F. Segroves, PROSKAUER ROSE LLP, Washington, D.C., for Amici Curiae; Robin S. Conrad, Shane B. Kawka, NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States; Quentin Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, D.C., for Amicus Curiae National Association of Manufacturers. - 3 - HAMILTON, Senior Circuit Judge: Before the court are two cases that we have consolidated. In the first case, Enterprise Leasing Company − Southeast, LLC (Enterprise) seeks review of a National Labor Relations Board (the Board) decision and order finding that Enterprise violated §§ 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 Local 391 of the International Brotherhood of Teamsters (Local 391) after the Board certified Local 391 as the exclusive bargaining representative of a unit of Enterprise’s employees. The Board has filed an application for enforcement of its order. In the second case, Huntington Ingalls, Inc. (Huntington) petitions for review of a Board decision and order finding that Huntington violated §§ 8(a)(1) and (a)(5) of the NLRA, id., by refusing to bargain with the International Association of Machinists and Aerospace Workers (Machinists Union) after the Board certified the Machinists Union as the exclusive bargaining representative of a unit of Huntington’s employees. The Board has filed an application for enforcement of its order. The determinative question in these cases is whether the Board had a quorum at the time it issued its decisions in 2012. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-45 (2010) (holding that, following a delegation of the NLRB’s powers to a three-member group, two members cannot continue to - 4 - exercise that delegated authority once the group’s (and the Board’s) membership falls to two). Resolution of this question turns on whether the three appointments by the President of the United States to the Board on January 4, 2012 are valid under the Recess Appointments Clause of the United States Constitution, which provides that 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.” U.S. Const. art. II, § 2, cl.3. If these appointments are invalid, the parties agree that the Board could not lawfully act when it issued its decisions in 2012. For the reasons stated below, we conclude that the President’s three January 4, 2012 appointments to the Board are constitutionally infirm, because the appointments were not made during “the Recess of the Senate.” Accordingly, we deny the Board’s applications for enforcement of its orders. I The two cases currently before the court have a similar procedural history. Local 391 prevailed in an election conducted by the Board. Before a Board Hearing Officer in a representation case, Enterprise challenged the election result on multiple fronts. Enterprise lost the representation case before a Board Hearing Officer and lost again on review by the - 5 - Board. Following these losses, Enterprise refused to bargain with Local 391. Local 391 initiated an unfair labor practice proceeding against Enterprise, and, in response, Enterprise contended, among other things, that the Board lacked a quorum to issue a decision because the President’s three January 4, 2012 appointments to the Board were invalid under the United States Constitution. The Board rejected Enterprise’s arguments and ordered Enterprise to bargain with Local 391. The Board now seeks enforcement of its decision and order. The dispute in Huntington’s case centers on the appropriate bargaining unit for Huntington’s 2,400 technical employees. Before a Board Regional Director (RD), the Machinists Union contended that a portion of Huntington’s 2,400 technical employees, namely those in the “E85 RADCON” department, was an appropriate bargaining unit whereas Huntington contended that the bargaining unit should consist of all 2,400 of its technical employees. The RD agreed with the Machinists Union and issued a decision and direction of election (DDE). Huntington then requested Board review of the DDE. On December 30, 2011, the Board affirmed the RD’s decision. In the ensuing election, the Machinists Union prevailed. The Board subsequently certified the Machinists Union as the exclusive representative for purposes of collective bargaining. Following certification, Huntington refused to comply with the - 6 - Machinists Union bargaining request, and the Machinists Union filed an unfair labor practice charge. In that proceeding, Huntington contended, inter alia, that the Board did not have a quorum to issue a decision, because the President’s three January 4, 2012 appointments to the Board were constitutionally infirm. The Board rejected this argument and others, holding that Huntington’s refusal to bargain was unlawful. The Board seeks enforcement of this decision and order, and Huntington petitions for review of such decision. In their respective briefs, both Enterprise and Huntington raise constitutional and non-constitutional arguments. Before we can address the constitutional arguments, we must first attempt to resolve these cases on non-constitutional grounds, if possible. See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (noting that a court “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”); see also Noel Canning v. NLRB, 705 F.3d 490, 493 (D.C. Cir.) (pursuant to Spector Motor and - 7 - Ashwander, court addressed non-constitutional claims concerning company’s refusal to bargain before addressing the question of whether the President’s three January 4, 2012 appointments to the Board were constitutional), cert. granted, 2013 WL 1774240 (U.S. June 24, 2013). In addressing the non-constitutional arguments advanced by both Enterprise and Huntington, we first will turn to Enterprise’s case and then to Huntington’s case. II A Enterprise operates an Alamo and National car rental facility at the Raleigh-Durham International Airport (RDU Airport). On November 9, 2010, Local 391 filed a petition with 1 the Board seeking to represent a unit of Enterprise’s employees. Enterprise and Local 391 signed an election agreement, and the Board conducted an election by secret ballot at Enterprise’s facility from 7:00 p.m. to 9:00 p.m. on Thursday, December 16, 1 The parties agree that the 101 employee bargaining unit consisted of full and regular part-time greeters, exit booth agents, counter representatives, rental agents, handler agents, service agents, customer service representatives, bus drivers, push/pullers, and mechanics employed by Enterprise. The bargaining unit excluded salaried employees, technical employees, office clerical employees, guards, professional employees, and supervisors. - 8 - 2010, and from 10:00 a.m. to 12:00 p.m., and again from 3:00 p.m. to 5:00 p.m., on Friday, December 17, 2010. At some point before the election, Local 391 mailed a flyer to all eligible voters which included a photograph of employee and eligible voter Roberto Henriquez without his prior 2 authorization for Local 391 to use his photograph. One side of the flyer contained the words, “Yes. Everybody can make the right choice!! To end Unfair treatment & Unfair pay!!” The words were surrounded by the photographs of eight employees of Enterprise, including Henriquez. The other side of the flyer had a note that asked employees to let Local 391 be their voice for better pay, benefits, and treatment. The photograph of Henriquez was taken by Chafik Omerani, an Enterprise employee and Local 391 supporter, at a food court in a shopping mall near the RDU Airport. On the first day of the election, December 16, 2010, Wake County, North Carolina, where the RDU airport is located, experienced inclement weather. Weather records establish that between 1/10 and 1/8 of an inch of freezing rain and 1/2 to one inch of snow fell in Wake County on December 16. No additional 2 Henriquez did not testify at the hearing before the Board Hearing Officer. Accordingly, the record does not reflect whether Henriquez was or was not a Local 391 supporter. However, it is clear that his prior authorization was not obtained and that Local 391 had a general policy of not using employees’ images without their prior consent. - 9 - freezing rain or snow fell on December 17, and there was no snow accumulation at the RDU airport or Enterprise’s facility on either day. As a result of the inclement weather, area schools and some businesses were closed on December 16. The opening of schools and some government businesses was delayed on December 17. The RDU Airport and Enterprise’s facility at the airport remained open during regular hours on both December 16 and 17. Although Enterprise’s facility remained open, it received ten employee 3 “call-outs” on December 16 and four “call-outs” on December 17. No evidence was presented concerning Enterprise’s normal or average call-out rate. There was also no evidence presented indicating that any eligible Enterprise employee was unable to vote on account of the weather. Moreover, neither party sought to postpone the election on account of the weather. On December 16, 2010, Local 391 organizer Steve Jones entered Enterprise’s facility approximately thirty minutes before the start of the election. He approached the customer service counter where two Enterprise Customer Service Representatives, one of whom was Damion Knowles, were seated. After greeting Knowles, Jones asked him how his interview had 3 “Call-out” is a term used to describe an employee who contacts his or her employer to report that he or she will not be coming to work. - 10 -