National Labor Relations Board v. Fisher Island Holdings, LCC , 140 F. App'x 857 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10065 ELEVENTH CIRCUIT
July 20, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
Agency Docket No. 12-CV-23440
NATIONAL LABOR RELATIONS BOARD,
Petitioner-Cross Respondent,
versus
FISHER ISLAND HOLDINGS, LCC,
FISHER ISLAND CLUB, INC., et al.,
Respondents-Cross Petitioners.
________________________
Application for Enforcement of an Order
of the National Labor Relations Board
_________________________
(July 20, 2005)
Before TJOFLAT, DUBINA and COX, Circuit Judges.
PER CURIAM:
The National Labor Relations Board (“NLRB”) applies to this court for
enforcement of its order issued against Fisher Island Holdings, LLC (“Fisher”). For
the reasons stated in Member Meisburg’s dissenting opinion, we conclude that
NLRB’s finding that Fisher violated 29 U.S.C. § 158(a)(1) is not supported by
substantial evidence. See Int’l Bhd. of Boilermakers v. NLRB, 127 F.3d 1300, 1306
(11th Cir. 1997). NLRB’s application for enforcement of its cease and desist order
is therefore denied. NLRB’s order requiring that a new employee representation
election be held is not a final order within the meaning of § 160(f) and is therefore
unreviewable at this time. See Florida Bd. Of Bus. Regulation v. NLRB, 686 F.2d
1362, 1366 n.8 (11th Cir. 1982); see also Cooper/T. Smith, Inc. v. NLRB, 177 F.3d
1259, 1261 n.1 (11th. Cir 1999) (stating that an employer can obtain review of a
Board representation decision only by refusing to bargain after a union is certified).
For that reason, NLRB’s application for enforcement must be denied in full.
DENIED.
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