                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-1938


FOLA COAL COMPANY, d/b/a Powellton Coal Company,

                Petitioner,

          v.

NATIONAL LABOR RELATIONS BOARD,

                Respondent,

          and

UNITED MINE WORKERS OF AMERICA, AFL-CIO,

                Intervenor.



                            No. 09-2057
                          _______________

NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

          v.

FOLA COAL COMPANY, d/b/a Powellton Coal Company,

                Respondent.




On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board.    (9-CA-44608;
9-CA-44650)
Argued:   May 13, 2010                         Decided:   July 2, 2010


Before MOTZ and    AGEE,   Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Vacated and remanded; petition        for      enforcement   denied   by
unpublished per curiam opinion.


ARGUED: David Christopher Burton, WILLIAMS MULLEN, Virginia
Beach, Virginia, for Fola Coal Company. David Arthur Fleischer,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the 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
Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board. Grant Crandall, Judith Rivlin,
UNITED MINE WORKERS OF AMERICA, Fairfax, Virginia; Charles F.
Donnelly, UNITED MINE WORKERS OF AMERICA, Charleston, West
Virginia, for Intervenor.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

       On     July    31,   2009,        two   members      of     the   National      Labor

Relations Board (“NLRB”) sustained a complaint of unfair labor

practices against Fola Coal Company (“Company”).                           See Fola Coal

Co.    LLC,    354    N.L.R.B      No.    60   (2009),      2009    WL    2366518.       The

Company petitioned for judicial review -- and the NLRB cross-

petitioned for enforcement -- of the agency’s order.

       In its appellate brief, the Company argued that § 3(b) of

the National Labor Relations Act (“Act”) does not permit a two-

member panel of the NLRB to exercise authority on behalf of the

agency.       See 29 U.S.C. § 153(b) (2006).                     One week later, this

court rejected an identical argument in a published opinion.

See Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 660 (4th Cir.

2009).         On    June    17,    2010,      the       Supreme    Court      effectively

abrogated that holding when it held in New Process Steel, L.P.

v. NLRB, 560 U.S. ___ (2010), available at 2010 WL 2400089, that

§ 3(b) does not permit a two-member panel to act for the NLRB.

       New Process Steel compels us to hold that the NLRB’s order

in    this    case    exceeded     the     agency’s       authority      under   the    Act.

Therefore, we deny the NLRB’s petition for enforcement, vacate

the    order,       and   remand   the     case     to    the    NLRB    for   proceedings

consistent with the holding in New Process Steel.

                                                             VACATED AND REMANDED;
                                                   PETITION FOR ENFORCEMENT DENIED


                                               3
