Opinion
No. 09-1344.
Heard November 2, 2009.
Decided July 30, 2010.
On Petition to Enforce an Order of the National Labor Relations Board.
Jose R. González-Nogueras, with whom Alejandro Méndez-Román and Jiménez, Graffam Lausell, were on brief for respondent.
Daniel A. Blitz, Attorney, National Labor Relations Board, with whom Jill A. Griffin, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, were on brief for petitioner.
The National Labor Relations Board ("the NLRB") petitions for enforcement of an order it issued on April 30, 2008 against respondent, Metro Mayaguez, Inc. ("Metro Mayaguez"). The NLRB's order found that Metro Mayaguez violated the National Labor Relations Act ("the NLRA"), 29 U.S.C. §§ 151- 169, by committing unfair labor practices.
In December 2007, the five-member NLRB, pursuant to section 3(b) of the NLRA, 29 U.S.C. § 153(b), delegated its powers to a three-member group. When the NLRB issued the underlying order in the instant case, the NLRB had only two members. While this appeal was pending, the Supreme Court held in New Process Steel, L.P. v. NLRB, — ___ U.S. ___, 130 S.Ct. 2635, at 2638, 177 L.Ed.2d 162, No. 08-1457, 2010 U.S. LEXIS 4973, at *5 (June 17, 2010), that, following a delegation of the NLRB's powers to a three-member group, two members cannot continue to exercise that delegated authority once the group's (and the NLRB's) membership falls to two. Accordingly, we conclude that the NLRB as constituted did not have the authority to issue the April 30, 2008 order against Metro Mayaguez. We thus deny the NLRB's petition for enforcement.
See, e.g., Fola Coal Co. v. NLRB, No. 09-1938, ___ Fed.Appx. ___, 2010 WL 2725595, at *1, 2010 U.S.App. LEXIS 13658, at *2 (4th Cir. July 2, 2010) (unpublished decision); NLRB v. Whitesell Corp., No. 08-3291, 2010 WL 2542904, at *1, 2010 U.S.App. LEXIS 13045, at *2 (8th Cir. June 25, 2010) (unpublished decision); Galicks, Inc. v. NLRB, Nos. 09-1972/09-2441, 2010 WL 2640306, at *1, 2010 U.S.App. LEXIS 12949, at *2 (6th Cir. June 24, 2010) (unpublished decision); NLRB v. Park, No. 09-2601, 608 F.3d 913, 2010 U.S.App. LEXIS 12857, at *2 (2d Cir. June 23, 2010) (per curiam).