Monday, March 12, 2012
NLRB v. County Waste, ____F.3d____(2d Cir. Jan. 6, 2012), is an important post-New Process Steel case. The basic issue is whether the same two members who sat on the pre-invalid New Process panel can sit on the post-New Process Steel three person panel. The 2d held that they can. The court reasoned:
County Waste contends that pursuant to New Process Steel, the August 2010 Decision isunenforceable since two of the Board members that entered that decision also participated in thepanel that issued the February 2009 Decision. This argument is unavailing. In New ProcessSteel, the Supreme Court held that section 3(b) of the NLRA as amended by the Taft-HartleyAct, 29 U.S.C. § 153(b) (“Section 3(b)”),3 which sets out the Board’s quorum requirements and-6-delegation procedures, does not permit a two member panel of the Board to decide a case whenthe Board itself consists only of two members, 130 S. Ct. at 2638. Nothing in the text of Section3(b) or the Supreme Court’s reasoning in New Process Steel addresses or even implicates howthe Board should handle cases that are vacated and remanded. Moreover, it is well-establishedthat even a reversal on appeal does not preclude an adjudicator from deciding the same questionon remand. Withrow v. Larkin, 421 U.S. 35, 57 (1975) Here, it is undisputed that the August2010 Decision was issued by a three member panel of the Board. Accordingly, the Board actedwithin its authority under Section 3(b).