Dresser-Rand Company v. NLRB, No. 12-60638 (5th Cir. 2014)
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Case: 12-60638 Document: 00512709269 Page: 1 Date Filed: 07/23/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________ No. 12-60638 Summary Calendar ___________________ United States Court of Appeals Fifth Circuit FILED July 23, 2014 Lyle W. Cayce Clerk DRESSER-RAND COMPANY, Petitioner Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner _______________________ Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board NLRB No. 03-CA-26543 NLRB No. 03-CA-26595 NLRB No. 03-CA-26711 NLRB No. 03-CV-26943 _______________________ Before SMITH, PRADO, and GRAVES, Circuit Judges. PER CURIAM:* In this case, we are asked to review the National Labor Relations Board s (the Board ) order finding that Petitioner Cross-Respondent Dresser-Rand Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 12-60638 Document: 00512709269 Page: 2 Date Filed: 07/23/2014 No. 12-60638 Company ( Dresser-Rand ) committed numerous unfair labor practices, in violation of the National Labor Relations Act, by locking out its employees in the wake of a strike. On appeal, Dresser-Rand argues that the Board s decision is invalid because, at the time it issued this ruling, it lacked a quorum. Specifically, Dresser-Rand contends three of the five Board members were not properly appointed by the President. In May 2013, the appeal was placed in abeyance pending a decision from the U.S. Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). In June 2014, the Supreme Court issued its decision in Noel Canning and agreed with Dresser-Rand that the President s recess appointments to the Board were unconstitutional. Id. at 2578. Dresser-Rand moves to lift the abeyance in light of the Supreme Court s decision. That motion is GRANTED. The Board also filed a motion asking this Court to grant Dresser-Rand s petition, vacate the unconstitutionally constituted Board s decision, and to remand this case to the Board for further proceedings. The Board also asks that the mandate issue expeditiously. Dresser-Rand opposes remand arguing all of the issues are fully briefed and ripe for review, and remand will add unnecessary delay. The Board s request is consistent with our practice when the Board has previously acted without lawful authority to render a decision. For example, in Bentonite Performance Mineral LLC v. NLRB, while the appeal was pending, the Supreme Court decided that the then two-member Board lacked authority adjudicate cases. 382 F. App x 402, 403 (5th Cir. 2010) (per curiam) (citing New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010)). We vacated the Board s order and remanded for further proceedings. Id. Moreover, nearly 2 Case: 12-60638 Document: 00512709269 Page: 3 Date Filed: 07/23/2014 No. 12-60638 every circuit has vacated and remanded the Board s decisions during the applicable time period in light of the Supreme Court s decision in Noel Canning. 1 We see no reason to depart from that practice in this case. Therefore, the Board s motion is GRANTED. Dresser-Rand s petition for review is GRANTED, the order of the Board is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion. Further, the Clerk of the Court is directed to issue the mandate expeditiously. IT IS SO ORDERED. NLRB v. Salem Hosp., No. 12-3632 (3d Cir. July 3, 2014) (same); NLRB v. Dover Hospitality Servs., Inc., No. 13-2307 (2d Cir. July 2, 2014) (vacating and remanding); DirecTV Holdings, LLC v. NLRB, Nos. 12-72526, 12 72639 (9th Cir. July 2, 2014) (same); Int l Union of Operating Eng rs, Local 627 v. NLRB, Nos. 13-9547, 13-9564 (10th Cir. July 2, 2014) (same); Relco Locomotives, Inc. v. NLRB, No. 13-2722 (8th Cir. July 1, 2014) (same). 1 3
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