Nal Labor Relations Bd. v. Talmadge Park, No. 09-2601 (2d Cir. 2010)
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09-2601-ag Nat l Labor Relations Bd. v. Talmadge Park 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Submitted: July 15, 2009 Decided: June 23, 2010) Docket No. 09-2601-ag - - - - - - - - - - - - - - - - - - - - -x NATIONAL LABOR RELATIONS BOARD, Petitioner, - v.TALMADGE PARK, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, SACK, Circuit Judge, and GOLDBERG, Judge.* 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 2 3 4 5 6 7 8 9 Linda Dreeben, Deputy Associate General Counsel, National Labor Relations Board, for Petitioner. William A. Ryan, Ryan & Ryan, LLC, New Haven, CT, for Respondent. 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). 13 May 27, 2009, only two of the Board s five seats were 14 filled. 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. 18 29 U.S.C. § 153(b). 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. 22 the situation when the Board issued the order that is the 23 subject of this petition. 24 When the order issued on Though the National Labor Relations Act stipulates See Anticipating a triple vacancy, the Such was 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). 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. 8 Board s petition is denied. See id. at *8. Recognizing that, on this The
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