Coastal Lumber Co. v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COASTAL LUMBER COMPANY, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
 No. 01-1144
UNITED STEELWORKERS OF AMERICA,
AFL-CIO CLC,
Intervenor.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
COASTAL LUMBER COMPANY,
Respondent,
 No. 01-1230
UNITED STEELWORKERS OF AMERICA,
AFL-CIO CLC,
Intervenor.

On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board.
(6-CA-31698)
Argued: September 26, 2001
Decided: October 30, 2001
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
2 COASTAL LUMBER COMPANY v. NLRB
Petition for review and cross-application for enforcement denied, and
case remanded with instructions by unpublished per curiam opinion.
COUNSEL
ARGUED: John S. Burgin, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, Raleigh, North Carolina, for Coastal Lum-
ber. Darlene Marie Haas, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Board. Daniel Martin Kovalik,
Assistant General Counsel, UNITED STEELWORKERS OF AMER-
ICA, AFL-CIO/CLC, Pittsburgh, Pennsylvania, for Intervenor. ON
BRIEF: Sheri Lea Roberson, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, Raleigh, North Carolina, for Coastal Lum-
ber. John H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, Meredith Jason, Senior
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The National Labor Relations Board found that Coastal Lumber
Company committed unfair labor practices by refusing to bargain
with a unit certified by the Board. Coastal petitioned this court for
review of the Board’s order, contending that six employees in the unit
are supervisors and therefore not entitled to organize and bargain col-
lectively. The Board cross-petitioned for enforcement of its order.
While this appeal was pending, the Supreme Court issued its opin-
ion in NLRB v. Kentucky River Community Care, Inc., 121 S. Ct.
COASTAL LUMBER COMPANY v. NLRB 3
1
1861 (2001). Although portions of the regional director’s opinion in
this case seem to use an analysis that perhaps is unaffected by the
Court’s holding in Kentucky River, some of the conclusions could be
understood to rest upon the type of analysis that was rejected by the
Supreme Court in Kentucky River.
A reviewing court is limited to considering only the analysis in the
Board’s decision; a court cannot "enforce the Board’s order by apply-
ing a legal standard the Board did not adopt." Kentucky River, 121
S. Ct. at 1871; see also SEC v. Chenery Corp., 332 U.S. 194, 196-97
(1947) ("It will not do for a court to be compelled to guess at the the-
ory underlying the agency’s action; nor can a court be expected to
chisel that which must be precise from what the agency has left vague
and indecisive. In other words, [w]e must know what a decision
means before the duty becomes ours to say whether it is right or
wrong." (internal quotation marks omitted)). Because the decision in
this case can be read to have been premised in part on an incorrect
legal standard, we decline to review or enforce the Board’s order at
this juncture and we remand the case to the Board for reconsideration
in light of the Supreme Court’s decision in Kentucky River.2 See
Southwest Merch. Corp. v. NLRB, 943 F.2d 1354, 1361 (D.C. Cir.
1991) (remanding case to the Board for clarification because of,
among other things, "the ambiguity surrounding [the Board’s] legal
theory and the relationship of that theory to the facts found"); cf.
NLRB v. Hub Plastics, Inc., 52 F.3d 608, 611 (6th Cir. 1995) ("If the
Board applies what we consider the incorrect standard, . . ., we must
1
The Board summarily denied Coastal’s request for review of the
regional director’s opinion.
2
Because the supervisory-status question is the primary issue in this
case, we believe that resolution of the waiver issue raised by the Board
and the Union is better left until after the Board addresses the
supervisory-status issue on remand. Cf. NLRB v. Gimrock Constr., Inc.,
247 F.3d 1307, 1308 n.1 (11th Cir. 2001) (declining to consider certain
issues given the court’s conclusion that the case must be remanded to the
Board "for a thorough explanation of the Board’s disposition of Respon-
dent’s first claim").
4 COASTAL LUMBER COMPANY v. NLRB
deny enforcement and remand the case for reconsideration in light of
the proper standard.").
PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT DENIED; CASE REMANDED
WITH INSTRUCTIONS