National Labor Relations Board v. McElroy Coal Co.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1989

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

MCELROY COAL COMPANY,

Respondent.

On Application for Enforcement of an Order of the National Labor
Relations Board. (6-CA-35806)

Submitted: January 27, 2011 Decided: February 18, 2011

Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Petition for enforcement granted by unpublished per curiam
opinion.

Lafe E. Solomon, Acting 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, Amy H. Ginn, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
David C. Burton, WILLIAMS MULLEN, Virginia Beach, Virginia, for
Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

The National Labor Relations Board (“Board”) brings

this action to enforce a Board order against McElroy Coal

Company. The Administrative Law Judge (“ALJ”) concluded McElroy

violated Section 8(a)(1) of the National Labor Relations Act

(“the Act”), 29 U.S.C. § 158(a)(1) (2006). The Board, by a two

member group, affirmed the ALJ’s factual determinations and

legal conclusions that McElroy violated Section 8(a)(1) of the

Act.

In its previous appeal to this court, the Board filed

an unopposed motion to remand the case based on the Supreme

Court’s holding in New Process Steel, L.P. v. NLRB, 130 S. Ct.

2635 (2010), that the Act does not authorize fewer than three

members to form a valid delegee group. We granted the petition

for review, vacated the Board’s order, and remanded to the Board

for further proceedings. McElroy Coal Co. v. NLRB, 392 F. App’x

137 (4th Cir. 2010) (Nos. 09-1332, 09-1427).

On remand, the Board, by a three-member panel,

concluded that McElroy violated Section 8(a)(1) of the Act.

Because substantial evidence supports the Board’s conclusion, we

grant the petition for enforcement. We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would

not aid the decisional process.

PETITION FOR ENFORCEMENT GRANTED

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