UNPUBLISHED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. 

Certiorari granted by Supreme Court, July 1, 2014 

Vacated and remanded by Supreme Court, July 1, 2014
2

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denied; vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
3

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 crossapplication 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
4

for review of the Board’s order, raising several nonconstitutional challenges to the decision, and the Board crosspetitioned 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 
5

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 crossapplication 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; CROSSAPPLICATION 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.