American Standard Companies Inc., American Standard Inc., d/b/a American Standard

National Labor Relations Board - Unpublished Board Decisions

Feb 26, 2014

08-CA-033352 (N.L.R.B. Feb. 26, 2014)

NOT TO BE INCLUDED MJS
IN BOUND VOLUMES TIFFIN, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
AMERICAN STANDARD COMPANIES, INC.,
AMERICAN STANDARD INC., d/b/a
AMERICAN STANDARD
and Cases 08-CA-33352
08-CA-33477
08-CA-33551
08-CA-33641
GLASS, MOLDERS, POTTERY, PLASTICS 08-CA-34284
& ALLIED WORKERS INTERNATIONAL UNION, 08-CA-34372
AFL-CIO, CLC , AND ITS LOCAL UNION NO. 7A 08-CA-34809
ORDER DENYING MOTION FOR RECONSIDERATION AND REQUEST FOR
REHEARING DE NOVO
On October 22, 2010, the National Labor Relations Board
issued its Decision and Order in this proceeding, in which it
found that the Respondent committed various violations of
Section 8(a)(1) and (5) of the Act.1
Subsequently, the Respondent petitioned for review of the
Order in the United States Court of Appeals for the District of
Columbia Circuit, and the Board cross-applied for enforcement.
On February 17, 2012, the D.C. Circuit denied the Respondent’s

1 The Decision and Order, reported at 356 NLRB No. 4 (2010),
incorporates by reference, with modifications, the Decision and
Order reported at 352 NLRB 644 (2008).
2
petition for review and enforced the Order in full. American
Standard Companies Inc. v. NLRB, 465 Fed. Appx. 1 (D.C. Cir.
2012). The D.C. Circuit issued its mandate in the case in April
2012.
On April 17, 2013, the Respondent filed with the Board a
motion for reconsideration of the Decision and Order and request
for rehearing de novo (“motion”). The Acting General Counsel
filed a response, and the Respondent filed a reply.
The Respondent contends that reconsideration and rehearing
are warranted in light of the D.C. Circuit’s decision in Noel
Canning v. NLRB,2 which issued on January 25, 2013. According to
the Respondent, under the reasoning of Noel Canning the recess
appointment of former Board Member Craig Becker--who was a
member of the three-member panel that issued the October 22,
2010 Decision and Order--was constitutionally invalid.
Therefore, the Respondent contends, the Board did not have a
lawful quorum when it issued the Decision and Order.
The Board has delegated its authority in this proceeding to
a three-member panel.
We deny the Respondent’s motion. The Respondent contends
that it does not seek modification of the Board’s October 2010
Order, but it does seek modification of that Order because its

2 705 F.3d 490 (D.C. Cir. 2013), cert. granted 81 U.S.L.W. 3695
(U.S. June 24, 2013) (No. 12-1281).
3
request for de novo rehearing necessarily contemplates the
eventual issuance of a new decision and order superseding the
2010 Order. The Board does not have jurisdiction to modify that
Order. As noted above, the D.C. Circuit enforced the Order in
February 2012 and issued its mandate in April 2012. Under
Section 10(e) of the Act,3 we have no jurisdiction to modify an
Order that has been enforced by a court of appeals because, upon
the filing of the record with the court of appeals, the
jurisdiction of that court is exclusive and its judgment and
decree are final, subject to review only by the Supreme Court.
Scepter Ingot Castings, Inc., 341 NLRB 997, 997 (2004) (citing
cases), enfd. sub nom. Scepter, Inc. v. NLRB, 448 F.3d 388 (D.C.
Cir. 2006).4
IT IS ORDERED that the Respondent’s motion for
reconsideration and request for a rehearing de novo is denied.
Dated, Washington, D.C. February 26, 2014.

3 Sec. 10(e) states, in relevant part: “Upon the filing of the
record with [the United States court of appeals] the
jurisdiction of the court shall be exclusive and its judgment
and decree shall be final,” except for potential further review
by the Supreme Court. 29 U.S.C. § 160(e).
4 The Respondent’s reliance on Nguyen v. United States, 539 U.S.
69 (2003), is misplaced. In Nguyen, the Supreme Court vacated
two criminal defendants’ convictions and remanded their cases to
the Ninth Circuit “for fresh consideration,” id. at 83, because
the convictions had been affirmed by a judicial panel that
included a non-Article III judge. No jurisdictional bar to
reconsideration was present in that case. In this case, by
contrast, Sec. 10(e) leaves us without jurisdiction to grant the
Respondent’s motion for reconsideration.
4
_________________________________
Philip A. Miscimarra, Member
_________________________________
Harry I. Johnson, III, Member
_________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD