Powellton Coal Co.

POWELLTON COAL CO. 355 NLRB No. 75 407 Fola Coal Company LLC d/b/a Powellton Coal Com- pany and United Mine Workers of America, AFL–CIO. Cases 9–CA–44608 and 9–CA–44650 August 9, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER On July 31, 2009, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 354 NLRB 419 (2009).1 Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Fourth Circuit, and the General Counsel filed a cross-application for enforce- ment. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. On July 2, 2010, the court of appeals denied the General Counsel’s cross-application for enforcement. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and conclu- sions and to adopt the recommended Order to the extent and for the reasons stated in the decision reported at 354 NLRB 419 (2009), which is incorporated herein by ref- erence.3 2 Consistent with the Board’s general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original deci- sion. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case at any time up to the issuance of this decision. 3 We find it unnecessary to rely on Cintas Corp., 353 NLRB 752 (2009), cited in fn. 2 of the prior decision, or Alcoa, Inc., 352 NLRB 1222 (2008), cited in fn. 3 of the prior decision.