                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-2362


GESTAMP SOUTH CAROLINA, L.L.C.,

                Petitioner,

           v.

NATIONAL LABOR RELATIONS BOARD,

                Respondent.



                              No. 12-1041


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

           v.

GESTAMP SOUTH CAROLINA, L.L.C.,

                Respondent.



On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (11-CA-22595;
11-CA-22628)


Argued:   October 24, 2012              Decided:   October 16, 2013


Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan
HARWELL, United States District Judge for the District of South
Carolina, sitting by designation.
Petition for review granted; cross-application for enforcement
denied; vacated and remanded by unpublished per curiam opinion.


ARGUED: John J. Coleman, III, BURR & FORMAN LLP, Birmingham,
Alabama, for Gestamp South Carolina, L.L.C.          Nina Schichor,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
ON BRIEF: Marcel L. Debruge, BURR & FORMAN LLP, Birmingham,
Alabama, for Gestamp South Carolina, L.L.C.        Lafe E. Solomon,
Acting General Counsel, Celeste J. Mattina, Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Linda
Dreeben,   Deputy   Associate   General   Counsel,   Usha  Dheenan,
Supervisory    Attorney,    NATIONAL    LABOR    RELATIONS   BOARD,
Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        Gestamp South Carolina, LLC, petitions for review of an

order of the National Labor Relations Board (“the NLRB” or “the

Board”) affirming the decision of an administrative law judge

(“ALJ”)     finding     that       Gestamp        violated     the    National      Labor

Relations Act (“the NLRA”).               For the reasons stated herein, we

grant Gestamp’s petition for review, deny the Board’s cross-

application for enforcement, vacate the Board’s decision, and

remand.

     As is relevant to this appeal, the Board’s Acting General

Counsel issued a complaint alleging that Gestamp violated 29

U.S.C.     § 158(a)(3)       and    (1)      by     suspending       and   discharging

employee    David     Anthony      Kingsmore       and   by    discharging      employee

Reggie Alexander because of their union organization efforts.

The complaint also alleged that Supervisor and Quality Engineer

Michael Fink violated 29 U.S.C. § 158(a)(1) by warning Kingsmore

that he would be fired if General Manager Carmen Evola found out

he was trying to unionize the facility.                        Following a hearing,

the ALJ found that Gestamp and Fink had committed the alleged

violations.

     On appeal, a three-member panel of the NLRB, comprised of

Board    Members    Mark   Gaston      Pearce,       Craig     Becker   and    Brian   E.

Hayes,     affirmed    the     ALJ’s      decision       and    adopted       the   ALJ’s

recommended order with minor modifications.                      Gestamp petitioned

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for    review    of      the    Board’s        order,     raising       several     non-

constitutional challenges to the decision, and the Board cross-

petitioned      for     enforcement     of     the      order.      Following       oral

argument, however, Gestamp raised an additional, constitutional

challenge to the Board’s power to act at the time it issued its

decision, based upon our recent decision in NLRB v. Enterprise

Leasing Co. Southeast, 722 F.3d 609 (4th Cir. 2013).

       In Enterprise Leasing, we held that the President’s recess

appointment of a board member to the NLRB is constitutionally

valid under the Recess Appointments Clause of the United States

Constitution      only     if    the    appointment         is    made     during    an

intersession,      as    opposed   to     an    intrasession,       recess     of    the

Senate.    See id. at 652.         Further, if the recess appointment of

any one member of a three-member NLRB panel is invalid, the

appointment is “invalid from [its] inception,” and there can

exist no lawful quorum to exercise the authority of the Board

under the NLRA.         Id. at 660 (internal quotation marks omitted);

see New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638

(2010) (“[F]ollowing a delegation of the Board’s powers to a

three-member group, two members [cannot] continue to exercise

that   delegated      authority    once      the     group’s     (and   the   Board’s)

membership falls to two.”).               In doing so, we followed recent

rulings of our sister circuits on this important constitutional

issue.    See NLRB v. New Vista Nursing and Rehab., LLC, 719 F.3d

                                          4
203 (3rd Cir. 2013); Noel Canning v. NLRB, 705 F.3d 490 (D.C.

Cir. 2013), cert. granted, 133 S. Ct. 2861 (June 24, 2013).

     Board Member Craig Becker served as one of the three panel

members in this case.     However, Member Becker was appointed by

the President on March 27, 2010, during a two-week adjournment

of the Senate.   See New Vista, 719 F.3d at 213.         Because his

appointment was constitutionally invalid from its inception, see

id. at 221, there were not enough valid members to meet the

requisite quorum and the Board lacked the power to lawfully act

when it issued its decision in this case.      Accordingly, we grant

Gestamp’s   petition    for   review,   deny   the   Board’s   cross-

application for enforcement, vacate the Board’s decision, and

remand the case to the NLRB for further proceedings as may be

appropriate. *

                          PETITION FOR REVIEW GRANTED; CROSS-
                          APPLICATION   FOR  ENFORCEMENT DENIED;
                          VACATED AND REMANDED




     *
       As noted above, the United States Supreme Court has
granted certiorari review in Noel Canning.     See NLRB v. Noel
Canning, 133 S. Ct. 2861 (June 24, 2013).    Although no formal
motion has been made to hold this case in abeyance pending the
Supreme Court’s decision in Noel Canning, the option was
suggested by Gestamp and opposed by the NLRB in their respective
Rule 28(j) letters. See Fed. R. App. P. 28(j). In light of our
decision in Enterprise Leasing, we decline to delay further
resolution of this appeal at this juncture.        We also deny
Gestamp’s Motion to Strike the NLRB’s Rule 28(j) letter and/or
for supplemental briefing.


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