Whitesell Corp.

National Labor Relations Board - Board Decisions

Aug 26, 2010

355 N.L.R.B. 635 (N.L.R.B. 2010)

WHITESELL CORP.
355 NLRB No. 134
635
Whitesell Corporation and Glass, Molders, Pottery,
Plastics and Allied Workers International Un-
ion, Local 359. Cases 18–CA–18143, 18–CA–
18168, and 18–CA–18203
August 26, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On August 29, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB 1196.1 Thereafter, the
General Counsel filed an application for enforcement.
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals issued an
order denying enforcement.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 The sole basis of the court’s decision denying enforcement was that
in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, the Supreme Court
had determined that “a two-member group may not exercise delegated
authority when the total Board membership falls below three because
‘the delegation clause [in section 3(b)] requires that a delegee group
maintain a membership of three in order to exercise the delegated au-
thority of the Board.’” NLRB v. Whitesell Corp., 2010 WL 2542904 at
*1 (quoting New Process Steel, L.P. v. NLRB, 130 S.Ct. at 2644, 2010
WL 2400089 at *8). The court neither discussed nor decided the merits
of the two Board Members’ unfair labor practice findings, some of
which the Company had not contested before the court.
Although the Board sought clarification of the court’s order, the
court denied that motion without explanation. Accordingly, we are
required to construe the court’s decision and mandate in light of the
principle that a “mandate is ‘to be interpreted reasonably and not in a
manner to do injustice.’” Bailey v. Henslee, 309 F.2d 840, 844 (8th
Cir. 1962) (quoting Wilkinson v. Massachusetts Bonding & Ins. Co., 16
F.2d 66, 67 (5th Cir. 1926)). Accord: NLRB v. Donnelly Garment Co.,
330 U.S. 219, 225–228 (1947). Because the Eighth Circuit predicated
its denial of enforcement solely on New Process Steel’s determination
that the two members lacked authority to issue an order, we have con-
cluded that the court’s decision and mandate are not a final resolution
of the pending unfair labor practice issues litigated before the adminis-
trative law judge and are not reasonably interpreted as terminating
further proceedings before the Board. Further, we do not find the
Eighth Circuit’s denial of the Board’s motion for remand or clarifica-
tion to be a significant factor in construing the court’s decision and
mandate. As courts have explained, no inferential weight should be
ascribed to summary denials of postjudgment motions for rehearing or
clarification, given the myriad reasons that the denials could represent.
See, e.g., Exxon Chemical Patents v. Lubrizol Corp., 137 F.3d 1475,
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 352
NLRB 1196, which is incorporated by reference.

1479–1480 (Fed. Cir. 1998) (motion for clarification); U.S. v. Cote, 51
F.3d 178, 181 (9th Cir. 1995) (petition for rehearing or modification);
Luckey v. Miller, 929 F.2d 618, 621–622 (11th Cir. 1991) (petition for
rehearing en banc).
Finally, the court’s jurisdiction under Sec. 10(e) and (f) of the Act
extends to review only of a “final order” of the Board. See Augusta
Bakery Corp. v. NLRB, 846 F.2d 445 (7th Cir. 1988) (dismissing peti-
tion for review for want of jurisdiction where Board had not issued a
“final” order). Absent such an order, there is nothing for a court to
enforce or set aside. See In re Labor Board, 304 U.S. 486, 494 (1938)
(in finding that the Third Circuit exceeded its jurisdiction in attempting
to halt further proceedings before the Board, the Supreme Court held
that a court without statutory power to decide the controversy in the
particular circumstances, “lacks jurisdiction of the subject matter and
must refrain from any adjudication of rights in connection therewith”).
The court here made no finding that the order issued by two Board
members who lacked authority to issue that order constituted a “final
order” under the Act and, in light of New Process, there is a serious
question whether the court had jurisdiction either to decide any dispute
on the merits or to terminate further proceedings before the Board in
this case.
3 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.