The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2362
GESTAMP SOUTH CAROLINA, L.L.C.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 12-1041
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
GESTAMP SOUTH CAROLINA, L.L.C.,
Respondent.
On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (11-CA-22595;
11-CA-22628)
Argued: October 24, 2012 Decided: October 16, 2013
Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan
HARWELL, United States District Judge for the District of South
Carolina, sitting by designation.
Petition for review granted; cross-application for enforcement
denied; vacated and remanded by unpublished per curiam opinion.
ARGUED: John J. Coleman, III, BURR & FORMAN LLP, Birmingham,
Alabama, for Gestamp South Carolina, L.L.C. Nina Schichor,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
ON BRIEF: Marcel L. Debruge, BURR & FORMAN LLP, Birmingham,
Alabama, for Gestamp South Carolina, L.L.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, Usha Dheenan,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gestamp South Carolina, LLC, petitions for review of an
order of the National Labor Relations Board (“the NLRB” or “the
Board”) affirming the decision of an administrative law judge
(“ALJ”) finding that Gestamp violated the National Labor
Relations Act (“the NLRA”). For the reasons stated herein, we
grant Gestamp’s petition for review, deny the Board’s cross-
application for enforcement, vacate the Board’s decision, and
remand.
As is relevant to this appeal, the Board’s Acting General
Counsel issued a complaint alleging that Gestamp violated 29
U.S.C. § 158(a)(3) and (1) by suspending and discharging
employee David Anthony Kingsmore and by discharging employee
Reggie Alexander because of their union organization efforts.
The complaint also alleged that Supervisor and Quality Engineer
Michael Fink violated 29 U.S.C. § 158(a)(1) by warning Kingsmore
that he would be fired if General Manager Carmen Evola found out
he was trying to unionize the facility. Following a hearing,
the ALJ found that Gestamp and Fink had committed the alleged
violations.
On appeal, a three-member panel of the NLRB, comprised of
Board Members Mark Gaston Pearce, Craig Becker and Brian E.
Hayes, affirmed the ALJ’s decision and adopted the ALJ’s
recommended order with minor modifications. Gestamp petitioned
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for review of the Board’s order, raising several non-
constitutional challenges to the decision, and the Board cross-
petitioned for enforcement of the order. Following oral
argument, however, Gestamp raised an additional, constitutional
challenge to the Board’s power to act at the time it issued its
decision, based upon our recent decision in NLRB v. Enterprise
Leasing Co. Southeast, 722 F.3d 609 (4th Cir. 2013).
In Enterprise Leasing, we held that the President’s recess
appointment of a board member to the NLRB is constitutionally
valid under the Recess Appointments Clause of the United States
Constitution only if the appointment is made during an
intersession, as opposed to an intrasession, recess of the
Senate. See id. at 652. Further, if the recess appointment of
any one member of a three-member NLRB panel is invalid, the
appointment is “invalid from [its] inception,” and there can
exist no lawful quorum to exercise the authority of the Board
under the NLRA. Id. at 660 (internal quotation marks omitted);
see New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638
(2010) (“[F]ollowing a delegation of the Board’s powers to a
three-member group, two members [cannot] continue to exercise
that delegated authority once the group’s (and the Board’s)
membership falls to two.”). In doing so, we followed recent
rulings of our sister circuits on this important constitutional
issue. See NLRB v. New Vista Nursing and Rehab., LLC, 719 F.3d
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203 (3rd Cir. 2013); Noel Canning v. NLRB, 705 F.3d 490 (D.C.
Cir. 2013), cert. granted, 133 S. Ct. 2861 (June 24, 2013).
Board Member Craig Becker served as one of the three panel
members in this case. However, Member Becker was appointed by
the President on March 27, 2010, during a two-week adjournment
of the Senate. See New Vista, 719 F.3d at 213. Because his
appointment was constitutionally invalid from its inception, see
id. at 221, there were not enough valid members to meet the
requisite quorum and the Board lacked the power to lawfully act
when it issued its decision in this case. Accordingly, we grant
Gestamp’s petition for review, deny the Board’s cross-
application for enforcement, vacate the Board’s decision, and
remand the case to the NLRB for further proceedings as may be
appropriate. *
PETITION FOR REVIEW GRANTED; CROSS-
APPLICATION FOR ENFORCEMENT DENIED;
VACATED AND REMANDED
*
As noted above, the United States Supreme Court has
granted certiorari review in Noel Canning. See NLRB v. Noel
Canning, 133 S. Ct. 2861 (June 24, 2013). Although no formal
motion has been made to hold this case in abeyance pending the
Supreme Court’s decision in Noel Canning, the option was
suggested by Gestamp and opposed by the NLRB in their respective
Rule 28(j) letters. See Fed. R. App. P. 28(j). In light of our
decision in Enterprise Leasing, we decline to delay further
resolution of this appeal at this juncture. We also deny
Gestamp’s Motion to Strike the NLRB’s Rule 28(j) letter and/or
for supplemental briefing.
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