Big Ridge , Inc. & Fts International Proppants , LLC v. National Labor Relations Board

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 31, 2013
Decided July 2, 2014
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Nos. 12‐3120, 12‐3258, 12‐3322, 12‐3654
BIG R IDGE , INC. &
FTS INTERNATIONAL P ROPPANTS , LLC,
Petitioners, Cross‐
Respondents,
v.
NATIONAL LABOR R ELATIONS BOARD,
Respondent, Cross‐
Petitioner.
On Petitions for Review and Cross‐
Applications for Enforcement of Orders
of the National Labor Relations Board.
Nos. 14‐CA‐30379, 14‐CA‐30406, 14‐RC‐
12824, 30‐CA‐82116, 30‐RC‐6783
O R D E R
Big Ridge, Inc. and FTS International Proppants, LLC lost unrelated cases before the
National Labor Relations Board. Petitioners argued that the Board lacked a quorum at the
time it issued decisions in their cases, see 29 U.S.C. § 153(b), because three of the Board’s
five members—Sharon Block, Richard Griffin, and Terence Flynn—were improperly
appointed under the Recess Appointments Clause of the Constitution.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 12‐3120, 12‐3258, 12‐3322, 12‐3654 Page 2
In NLRB v. Noel Canning, No. 12–1281 (June 26, 2014), the U.S. Supreme Court held these
three appointments invalid because “when the appointments … took place, the Senate was
in the midst of a 3‐day recess. Three days is too short a time to bring a recess within the
scope of the Clause. Thus we conclude that the President lacked the power to make the
recess appointments here at issue.” Slip op. at 2.
As “in the absence of a lawfully appointed quorum, the Board cannot exercise its
powers,” Noel Canning, slip op. at 3 (citing New Process Steel, L.P. v. NLRB, 560 U.S. 674,
687–88 (2010)), we G RANT the petitions for review and VACATE the Board’s orders in both
cases. We also D ENY the cross‐petitions of the Board for enforcement of its orders.

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