Case: 09-60034     Document: 00511150663          Page: 1    Date Filed: 06/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 22, 2010

                                       No. 09-60034                         Lyle W. Cayce
                                                                                 Clerk

BENTONITE PERFORMANCE MINERAL LLC, a Product Line of
Halliburton Energy Services, Inc.

                                                   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
                               27-CA-20596


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        In this case, we are asked to review whether the National Labor Relations
Board (the Board”) erred in finding that Bentonite Performance Mineral LLC
(“Bentonite”) committed numerous unfair labor practices in violation of the
National Labor Relations Act.
        On appeal, Bentonite raised a threshold issue, arguing that under Section
3(b) of the Act, the two-member Board which issued the order in this case was


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
  Case: 09-60034    Document: 00511150663    Page: 2   Date Filed: 06/22/2010

                                No. 09-60034

without lawful authority to render a decision. While this appeal was pending,
the Supreme Court decided New Process Steel, L.P. v. National Relations Board,
560 U.S. ____ (2010) and agreed with appellant’s position that the two member
board had no authority to adjudicate cases pending before the Board.
      Accordingly, we vacate the Board’s order and remand for further
proceedings consistent with this opinion.


VACATED and REMANDED.




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