                             UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 09-1332


MCELROY COAL COMPANY,

               Petitioner,

          v.

NATIONAL LABOR RELATIONS BOARD,

               Respondent.



                             No. 09-1427


NATIONAL LABOR RELATIONS BOARD,

               Petitioner,

          v.

MCELROY COAL COMPANY,

               Respondent.



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


Argued:    March 25, 2010                   Decided:    August 20, 2010


Before MICHAEL and DAVIS, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.
Petition for review granted, order    vacated,   and   remanded   by
unpublished per curiam opinion.


ARGUED: David Christopher Burton, WILLIAMS MULLEN, Virginia
Beach, Virginia, for McElroy Coal Company.     Amy Helen Ginn,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the
National Labor Relations 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 B. Broido, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
the National Labor Relations Board.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              McElroy Coal Company petitions this court to reverse

the order of the National Labor Relations Board (NLRB) adopting

the administrative law judge’s decision that McElroy violated

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

McElroy argues that the two-member NLRB “group,” which issued

its order on March 9, 2009, lacked the statutory authority to

act because it had less than three members.

              Shortly before oral argument in this case, we held in

another case that the same two-member NLRB group constituted a

quorum empowered to issue orders under the delegation provision

of Section 3(b) of the Act.          Narricot Industries, L.P. v. NLRB,

587 F.3d 654, 660 (4th Cir. 2009).               On June 17, 2010, the

Supreme Court abrogated our Narricot Industries decision when it

issued its decision in New Process Steel, L.P. v. NLRB, No. 08-

1457, 2010 U.S. LEXIS 4973 (June 17, 2010), holding that Section

3(b)   does    not   authorize   two   members   to   constitute   a     valid

delegee   group.      Accordingly,     the   two-member   NLRB   group    that

issued the order in this case lacked the statutory authority to

act.    We therefore grant the petition for review, vacate the

Board’s order, and remand to the Board for further proceedings.

                                             PETITION FOR REVIEW GRANTED,
                                             ORDER VACATED, AND REMANDED.




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