# McElroy Coal Co. v. National Labor Relations Board

> Court of Appeals for the Fourth Circuit · August 20, 2010 · 392 F. App'x 137

URL: https://www.frixlaw.com/law-library/cases/2968516

## Case

- **Full name:** McELROY COAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent; National Labor Relations Board, Petitioner, v. McElroy Coal Company, Respondent
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** August 20, 2010
- **Citations:** 392 F. App'x 137
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Michael, Davis, Beaty, Middle
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNPUBLISHED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.
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unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2968516. Public record. Not legal advice.