Nos. 09-1038-ag (L), 09-1646-ag (XAP).United States Court of Appeals, Second Circuit.
July 1, 2010.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
ON CONSIDERATION WHEREOF, it is hereby ORDERED,ADJUDGED, and DECREED that the petition for review is GRANTED, the NLRB’s cross-application for enforcement is DENIED, the decision and order of the NLRB are VACATED, and the case is REMANDED
for further proceedings.
Stuart Weinberger, Goldberg Weinberger, New York, NY, for Petitioner-Cross-Respondent.
Amy H. Ginn, Attorney (Julie B. Broido, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, of counsel), National Labor Relations Board, Washington, DC, for Respondents Cross-Petitioner.
Tamir W. Rosenblum, Mason Tenders District Council of Greater New York (Joseph J. Vitale, Cohen, Weiss and Simon LLP, of counsel), New York, NY, for Intervenor-Respondent.
Present: WILFRED FEINBERG, WALKER and ROBERT A. KATZMANN, Circuit Judges.
Petitioner County Waste of Ulster, LLC petitions for review of the February 11, 2009 decision of the National Labor Relations Board (“NLRB”) that County Waste violated section 8(a)(2) of the National Labor Relations Act, 29 U.S.C. § 158(a)(2). Respondent NLRB cross-applies for enforcement of the NLRB order. We assume the parties’ familiarity with the facts and procedural history of the case.
The NLRB decision at issue in this case was issued by a two-member panel at a time when the NLRB had only two members. On June 17, 2010, the Supreme Court held that a delegee group of the NLRB could not continue to exercise its delegated authority once the group’s and the NLRB’s membership fell to two, New Process Steel, L.P. v. NLRB, 560 ___ U.S. ___, 130 S.Ct. 2635, 2644-15, 177 L.Ed.2d 162 (2010), abrogating this Court’s decision in Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009) See NLRB v. Talmadge
Park, 608 F.3d 913, 913 (2d Cir. 2010). Accordingly, the two-member panel of the NLRB did not have the authority to enter a decision and order in this case.
For the foregoing reason, County Waste’s petition for review of the NLRB’s decision and order is hereby GRANTED, the cross-application for enforcement is DENIED, the decision and order of the NLRB are VACATED, and the case isREMANDED for further proceedings.