McElroy Coal Company v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1332
MCELROY COAL COMPANY,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 09-1427
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
MCELROY COAL COMPANY,
Respondent.
On Petition for Review of an Order of the National Labor
Relations Board. (6-CA-35806)
Argued: March 25, 2010 Decided: August 20, 2010
Before MICHAEL and DAVIS, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.

-- 1 of 3 --

2
Petition for review granted, order vacated, and remanded by
unpublished per curiam opinion.
ARGUED: David Christopher Burton, WILLIAMS MULLEN, Virginia
Beach, Virginia, for McElroy Coal Company. Amy Helen Ginn,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the
National Labor Relations 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 B. Broido, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
the National Labor Relations Board.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 3 --

3
PER CURIAM:
McElroy Coal Company petitions this court to reverse
the order of the National Labor Relations Board (NLRB) adopting
the administrative law judge’s decision that McElroy violated
Section 8(a)(1) of the National Labor Relations Act (the Act).
McElroy argues that the two-member NLRB “group,” which issued
its order on March 9, 2009, lacked the statutory authority to
act because it had less than three members.
Shortly before oral argument in this case, we held in
another case that the same two-member NLRB group constituted a
quorum empowered to issue orders under the delegation provision
of Section 3(b) of the Act. Narricot Industries, L.P. v. NLRB,
587 F.3d 654, 660 (4th Cir. 2009). On June 17, 2010, the
Supreme Court abrogated our Narricot Industries decision when it
issued its decision in New Process Steel, L.P. v. NLRB, No. 08-
1457, 2010 U.S. LEXIS 4973 (June 17, 2010), holding that Section
3(b) does not authorize two members to constitute a valid
delegee group. Accordingly, the two-member NLRB group that
issued the order in this case lacked the statutory authority to
act. We therefore grant the petition for review, vacate the
Board’s order, and remand to the Board for further proceedings.
PETITION FOR REVIEW GRANTED,
ORDER VACATED, AND REMANDED.

-- 3 of 3 --