Fola Coal Company, d/b/a Powellton Coal Company v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1938
FOLA COAL COMPANY, d/b/a Powellton Coal Company,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and
UNITED MINE WORKERS OF AMERICA, AFL-CIO,
Intervenor.
No. 09-2057
_______________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
FOLA COAL COMPANY, d/b/a Powellton Coal Company,
Respondent.
On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (9-CA-44608;
9-CA-44650)

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Argued: May 13, 2010 Decided: July 2, 2010
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded; petition for enforcement denied by
unpublished per curiam opinion.
ARGUED: David Christopher Burton, WILLIAMS MULLEN, Virginia
Beach, Virginia, for Fola Coal Company. David Arthur Fleischer,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
ON BRIEF: Ronald Meisburg, General Counsel, John E. Higgins,
Jr., Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel, Julie
Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board. Grant Crandall, Judith Rivlin,
UNITED MINE WORKERS OF AMERICA, Fairfax, Virginia; Charles F.
Donnelly, UNITED MINE WORKERS OF AMERICA, Charleston, West
Virginia, for Intervenor.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On July 31, 2009, two members of the National Labor
Relations Board (“NLRB”) sustained a complaint of unfair labor
practices against Fola Coal Company (“Company”). See Fola Coal
Co. LLC, 354 N.L.R.B No. 60 (2009), 2009 WL 2366518. The
Company petitioned for judicial review -- and the NLRB cross-
petitioned for enforcement -- of the agency’s order.
In its appellate brief, the Company argued that § 3(b) of
the National Labor Relations Act (“Act”) does not permit a two-
member panel of the NLRB to exercise authority on behalf of the
agency. See 29 U.S.C. § 153(b) (2006). One week later, this
court rejected an identical argument in a published opinion.
See Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 660 (4th Cir.
2009). On June 17, 2010, the Supreme Court effectively
abrogated that holding when it held in New Process Steel, L.P.
v. NLRB, 560 U.S. ___ (2010), available at 2010 WL 2400089, that
§ 3(b) does not permit a two-member panel to act for the NLRB.
New Process Steel compels us to hold that the NLRB’s order
in this case exceeded the agency’s authority under the Act.
Therefore, we deny the NLRB’s petition for enforcement, vacate
the order, and remand the case to the NLRB for proceedings
consistent with the holding in New Process Steel.
VACATED AND REMANDED;
PETITION FOR ENFORCEMENT DENIED

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