Nat'l Labor Relations Bd. v. Talmadge Park

• Court: Court of Appeals for the Second Circuit
• Decided: June 23, 2010
• Docket: 09-2601
• Status: Published

Opinion

09-2601-ag Nat’l Labor Relations Bd. v. Talmadge Park 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2008 7 8 9 (Submitted: July 15, 2009 Decided: June 23, 2010) 10 11 Docket No. 09-2601-ag 12 13 - - - - - - - - - - - - - - - - - - - - -x 14 15 NATIONAL LABOR RELATIONS BOARD, 16 17 Petitioner, 18 19 - v.- 20 21 TALMADGE PARK, 22 23 Respondent. 24 25 - - - - - - - - - - - - - - - - - - - -x 26

27 Before: JACOBS, Chief Judge, SACK, Circuit Judge, 28 and GOLDBERG, Judge.* 29 30 The National Labor Relations Board petitions for

31 enforcement of an order against respondent, Talmadge Park.

32 The order issued on May 27, 2009 when the Board comprised

33 only two members, and we accordingly deny the petition on

34 the basis of New Process Steel, L.P. v. National Labor

35 Relations Board, No. 08-1457, 2010 WL 2400089 (June 17,

36 2010).

* The Honorable Richard W. Goldberg, Judge of the United States Court of International Trade, sitting by designation. 1 Linda Dreeben, Deputy Associate 2 General Counsel, National Labor 3 Relations Board, for Petitioner. 4 5 William A. Ryan, Ryan & Ryan, 6 LLC, New Haven, CT, for 7 Respondent. 8 9 PER CURIAM:

10 The National Labor Relations Board petitions for

11 enforcement of an order against respondent, Talmadge Park,

12 pursuant to 29 U.S.C. § 160(e). When the order issued on

13 May 27, 2009, only two of the Board’s five seats were

14 filled. Though the National Labor Relations Act stipulates

15 a three-member quorum, it also permits the Board to delegate

16 its authority to a group of three or more members, any two

17 of whom may constitute a quorum of that delegate group. See

18 29 U.S.C. § 153(b). Anticipating a triple vacancy, the

19 Board in 2007 delegated its authority to a three-member

20 group that continued to exercise the Board’s authority when

21 the third member of the group vacated his seat. Such was

22 the situation when the Board issued the order that is the

23 subject of this petition.

24 In Snell Island SNF LLC v. National Labor Relations

25 Board, 568 F.3d 410 (2d Cir. 2009), we held that two Board

26 members may exercise the Board’s authority in such

27 circumstances as a quorum of a three-member delegate group. 1 See id. at 424. However, the Supreme Court has since

2 overridden that holding in New Process Steel, L.P. v.

3 National Labor Relations Board, No. 08-1457, 2010 WL 2400089

4 (June 17, 2010). See id. at *8. Recognizing that, on this

5 point, Snell Island yields to New Process Steel, we conclude

6 that the Board as constituted did not have the authority to

7 issue the May 27, 2009 order against Talmadge Park. The

8 Board’s petition is denied.