     Case: 12-60638      Document: 00512709269         Page: 1    Date Filed: 07/23/2014




           IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                                  ___________________                      United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                     No. 12-60638                             July 23, 2014
                                  Summary Calendar
                                  ___________________                        Lyle W. Cayce
                                                                                  Clerk
DRESSER-RAND COMPANY,

              Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD,

              Respondent Cross-Petitioner

                               _______________________

           Petition for Review and Cross-Application for Enforcement
               of an Order of the National Labor Relations Board
                             NLRB No. 03-CA-26543
                             NLRB No. 03-CA-26595
                             NLRB No. 03-CA-26711
                             NLRB No. 03-CV-26943
                             _______________________

Before SMITH, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*

       In this case, we are asked to review the National Labor Relations Board’s
(the “Board”) order finding that Petitioner Cross-Respondent Dresser-Rand

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-60638

Company (“Dresser-Rand”) committed numerous unfair labor practices, in
violation of the National Labor Relations Act, by locking out its employees in
the wake of a strike.
      On appeal, Dresser-Rand argues that the Board’s decision is invalid
because, at the time it issued this ruling, it lacked a quorum. Specifically,
Dresser-Rand contends three of the five Board members were not properly
appointed by the President.
      In May 2013, the appeal was placed in abeyance pending a decision from
the U.S. Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). In
June 2014, the Supreme Court issued its decision in Noel Canning and agreed
with Dresser-Rand that the President’s recess appointments to the Board were
unconstitutional. Id. at 2578.
      Dresser-Rand moves to lift the abeyance in light of the Supreme Court’s
decision. That motion is GRANTED.
      The Board also filed a motion asking this Court to grant Dresser-Rand’s
petition, vacate the unconstitutionally constituted Board’s decision, and to
remand this case to the Board for further proceedings. The Board also asks
that the mandate issue expeditiously. Dresser-Rand opposes remand arguing
all of the issues are fully briefed and ripe for review, and remand will add
unnecessary delay.
      The Board’s request is consistent with our practice when the Board has
previously acted without lawful authority to render a decision. For example,
in Bentonite Performance Mineral LLC v. NLRB, while the appeal was
pending, the Supreme Court decided that the then two-member Board lacked
authority adjudicate cases. 382 F. App’x 402, 403 (5th Cir. 2010) (per curiam)
(citing New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010)). We vacated the
Board’s order and remanded for further proceedings. Id. Moreover, nearly


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                                     No. 12-60638

every circuit has vacated and remanded the Board’s decisions during the
applicable time period in light of the Supreme Court’s decision in Noel
Canning. 1 We see no reason to depart from that practice in this case.
       Therefore, the Board’s motion is GRANTED. Dresser-Rand’s petition for
review is GRANTED, the order of the Board is VACATED, and the case is
REMANDED to the Board for further proceedings consistent with this opinion.
Further, the Clerk of the Court is directed to issue the mandate expeditiously.
       IT IS SO ORDERED.




       1 NLRB v. Salem Hosp., No. 12-3632 (3d Cir. July 3, 2014) (same); NLRB v. Dover
Hospitality Servs., Inc., No. 13-2307 (2d Cir. July 2, 2014) (vacating and remanding);
DirecTV Holdings, LLC v. NLRB, Nos. 12-72526, 12 72639 (9th Cir. July 2, 2014) (same);
Int’l Union of Operating Eng’rs, Local 627 v. NLRB, Nos. 13-9547, 13-9564 (10th Cir. July
2, 2014) (same); Relco Locomotives, Inc. v. NLRB, No. 13-2722 (8th Cir. July 1, 2014)
(same).

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