In what looks to be the first application of New Process Steel v. NLRB by a court of appeals, on June 23, 2010, the Second Circuit denied the NLRB’s petition for enforcement of an order issued by the 2-Member Board.  In NLRB v. Talmadge Park, the per curium opinion concluded that:

In Snell Island SNF LLC v. National Labor Relations Board, 568 F.3d 410 (2d Cir. 2009), we held that two Board members may exercise the Board’s authority in such circumstances as a quorum of a three-member delegate group. See id. at 424. However, the Supreme Court has since overridden that holding in New Process Steel, L.P. v. National Labor Relations Board, No. 08-1457, 2010 WL 2400089 (June 17, 2010). See id. at *8. Recognizing that, on this point, Snell Island yields to New Process Steel, we conclude that the Board as constituted did not have the authority to issue the May 27, 2009 order against Talmadge Park. The Board’s petition is denied.

 

Significantly, the employer in Talmadge Park did not challenge the Board’s authority to issue the 2-Member decision and even stipulated to the appellate court’s entry of a consent judgment enforcing the Board’s decision. Thus, the Second Circuit’s decision to deny enforcement under such circumstances signals judicial approval of broad and far-reaching effects of the New Process decision, i.e., 2-Member Orders will be denied enforcement even in the absence of a specific challenge on that basis. Whether other circuits will take this same view is not known at this time; also undecided is whether those parties which had Orders entered against them by the 2-Member Board but did not appeal to a court of appeals are in fact bound by those Orders. Also significant about the Second Circuit’s Talmadge Park decision is that, unlike the D.C. Circuit’s decision in Laurel Baye, which vacated a now void 2-Member decision and remanded the case to the Board for consideration at such a time when the Board regained a quorum, the Second Circuit denied enforcement of the Board’s petition without remanding the case back the Board, likely foreclosing the Board’s ability to reconsider the case. We will continue to monitor this important issue and will report on developments as they occur.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced…

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced with wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.

Justin is a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin’s practice encompasses all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010).