County Waste of Ulster, LLC v. National Labor Relations Board , 385 F. App'x 11 ( 2010 )

09-1038-ag(L), 09-1646-ag(XAP)
County Waste of Ulster, LLC v. National Labor Relations Board
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day of
July, two thousand ten.
Present:
WILFRED FEINBERG,
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
Circuit Judges.
________________________________________________
COUNTY WASTE OF ULSTER, LLC,
Petitioner-Cross-Respondent,
v. No. 09-1038-ag(L), 09-1646-ag(XAP)
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner, and
LOCAL 108, LIUNA,
Intervenor-Respondent.
________________________________________________
For Petitioner-Cross-Respondent: STUART WEINBERGER , Goldberg & Weinberger, New
York, NY
For Respondent-Cross-Petitioner: 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 Intervenor-Respondent: TAMIR W. ROSENBLUM , Mason Tenders District Council of
Greater New York (Joseph J. Vitale, Cohen, Weiss and
Simon LLP, of counsel), New York, NY
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.
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. ---,
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No. 08-11457, slip. op. at 13-14 (June 17, 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, --- F.3d ---, slip.
op. at 2-3 (2d Cir. June 23, 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 is REMANDED for further proceedings.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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