Fola Coal Company v. NLRB, No. 09-1938 (4th Cir. 2010)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1938 FOLA COAL COMPANY, d/b/a Powellton Coal Company, Petitioner, v. NATIONAL LABOR RELATIONS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) Argued: May 13, 2010 Before MOTZ and Circuit Judge. AGEE, Decided: Circuit Vacated and remanded; petition unpublished per curiam opinion. Judges, for and July 2, 2010 HAMILTON, enforcement Senior denied by 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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: On July 31, 2009, two members of the National Labor Relations Board ( NLRB ) sustained a complaint of unfair labor practices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 ). Co. LLC, 354 N.L.R.B No. 60 (2009), 2009 WL See Fola Coal 2366518. The Company petitioned for judicial review -- and the NLRB crosspetitioned 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 twomember 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 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
