10-3359-ag (L)
NLRB v. County Waste of Ulster



                             UNITED STATES COURT OF APPEALS

                                      FOR THE SECOND CIRCUIT

                                         _______________

                                        August Term, 2011

                 (Argued: December 13, 2011            Decided: January 6, 2012)

                        Docket Nos. 10-3359-ag (Lead) 10-3615-ag (XAP)

              ________________________________________________________

                                 NATIONAL LABOR RELATIONS BOARD,

                                                     Petitioner-Cross-Respondent, and

                                             LIUNA

                                                   Intervenor-Petitioner/Cross-Respondent

                                              —v.—

                                  COUNTY WASTE OF ULSTER, LLC,

                                                     Respondent-Cross-Petitioner.

              ________________________________________________________

Before: SACK, KATZMANN, and PARKER, Circuit Judges.

        Petition to enforce and cross-petition to review a National Labor Relations Board

(“Board”) decision and order, concluding that respondent/cross-petitioner violated section

8(a)(2) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(2), by allowing a

union to distribute a bonus to employees when an election was pending. County Waste of Ulster,

LLC, 355 N.L.R.B. No. 64 (2010). We hold that the Board’s review of this case was adequate
and that Board members who enter a decision that is vacated pursuant to the Supreme Court’s

holding in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (“New Process Steel”), may

participate in the panel that reviews the case on remand. Petition to enforce GRANTED and

cross-petition to review DENIED.

_______________


Counsel for Petitioner/Cross-Respondent:           AMY H. GINN, Attorney (Julie B. Broido,
                                                   Supervisory Attorney, Lafe E. Solomon,
                                                   Acting General Counsel, Celeste Mattina,
                                                   Acting Deputy General Counsel, John H.
                                                   Ferguson, Associate General Counsel, Linda
                                                   Dreeben, Deputy Associate General
                                                   Counsel, on the brief), National Labor
                                                   Relations Board, Washington, D.C.

Counsel for Intervenor-Petitioner/Cross-           TAMIR W. ROSENBLUM, Mason Tenders
Respondent:                                        District Council of Greater New York, New
                                                   York, N.Y. ( Joseph J. Vitale, Cohen, Weiss
                                                   and Simon LLP, New York, N.Y., on the
                                                   brief)

Counsel for Respondent/Cross-Petitioner:           STUART WEINBERGER, Goldberg and
                                                   Weinberger LLP, New York, N.Y.
_______________

PER CURIAM:

       The Board petitions to enforce its August 10, 2010 decision and order (the “August 2010

Decision”), concluding that County Waste, LLC (“County Waste”) violated section 8(a)(2) of

the NLRA, 29 U.S.C. § 158(a)(2), by allowing Local 124, to distribute a bonus to employees

when an election was pending. County Waste of Ulster, LLC, 355 N.L.R.B. No. 64 (2010). The

competing union, Local 108, Laborers International Union of North America (“Local 108”), was

granted permission to intervene. Respondent County Waste cross-petitions for review of the


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August 2010 Decision. In its petition for review, County Waste contends that the August 2010

Decision cannot be enforced since two of the Board members who entered it also sat on the panel

that issued an earlier decision in this case (the “February 2009 Decision”), which was vacated by

this Court pursuant to New Process Steel. County Waste of Ulster, LLC v. NLRB, 385 F. App’x

11 (2d Cir. 2010).1 Because we find that nothing in New Process Steel precludes Board

members who enter a subsequently vacated decision from participating on the panel that reviews

the case on remand, we grant the Board and Local 108’s petition to enforce the August 2010

Decision and deny County Waste’s cross-petition for review.

I.     Background

       In order to determine whether the Board’s conduct in this case comports with the

Supreme Court’s holding in New Process Steel, we need only consider this case’s procedural

history. Following an election convened on January 6, 2006, Local 108 filed an unfair labor

practice charge against County Waste alleging a number of unfair labor practice violations, and

the Board issued a complaint based on that charge. In an opinion dated May 9, 2007,

Administrative Law Judge Raymond P. Green (the “ALJ”) issued a decision dismissing many of

Local 108’s unfair labor practice claims, but concluding that County Waste had violated section

8(a)(1) and (2) of the NLRA.


       1
         County Waste also argues that: substantial evidence does not support the Board’s
finding that Local 124 was permitted to distribute the bonus; even if Local 124 distributed the
bonus, this conduct did not violate the NLRA; and, the Board engaged in “sham”
decisionmaking. We address these issues in a separate summary order in which we hold that (1)
substantial evidence supports the Board’s finding that County Waste permitted Local 124 to
distribute a bonus while an election was pending; (2) the Board reasonably concluded that by
allowing Local 124 to distribute the bonus, County Waste sought to influence the election in
violation of section 8(a)(2) of the NLRA; and, (3) County Waste did not proffer adequate
evidence to overcome the presumption that public officers properly discharge their duties.

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       On February 11, 2009, a two-member panel of the Board affirmed the ALJ’s

determination that County Waste violated section 8(a)(2) of the NLRA “by allowing Local 124

to distribute the bonus to employees.” County Waste of Ulster, LLC, 353 N.L.R.B. No. 89, at 1

(2010). It did so “for the reasons set forth in the [ALJ’s] decision.” Id. However, it remanded

the case to the ALJ to clarify his finding that County Waste violated section 8(a)(1) by granting

the bonus since this violation had not been alleged in the complaint.2 Id.

       Thereafter, County Waste filed a petition to review the February 2009 Decision,

asserting, inter alia, that the Board lacked jurisdiction since only two Board members were

involved in deciding the case and, at the time the case was decided, the Board had only two

members. The Board cross-appealed to enforce its decision and order. By summary order dated

July 1, 2010, this Court vacated and remanded the February 2009 Decision in light of the

Supreme Court’s decision in New Process Steel, which held that a delegee group of the NLRB

cannot exercise its delegated authority once the group’s and the NLRB’s membership falls to

two. County Waste of Ulster, LLC, 385 F. App’x at 11. County Waste petitioned for a rehearing

on the basis that this Court’s order remanding the case did not direct that the matter be returned

to a panel from which the two Board members who entered the February 2009 Decision would

be excluded. On July 27, 2010, this motion was denied and, on August 6, a judgment mandate

issued, returning the case to the Board.

       On August 10, 2010, County Waste filed a request with the Board that the two members

who were on the original panel be excluded from the panel reviewing the case on remand. The

same day, the Board entered a decision affirming the February 2009 Decision. The two


       2
           On remand, the section 8(a)(1) charge was dismissed.

                                                -4-
members who entered the February 2009 Decision also participated on the panel that entered the

August 2010 Decision. In a footnote, the Board noted:

       Consistent with the Board’s general practice in cases remanded from the courts
       of appeals, and for reasons of administrative economy, the panel includes the
       members who participated in the original decision. Furthermore, under the
       Board’s standard procedures applicable to all cases assigned to a panel, the
       Board members not assigned to the panel had the opportunity to participate in
       the adjudication of this case at any time up to the issuance of this decision.

County of Ulster, LLC, 355 N.L.R.B. No. 64, at 1 n.3 (2010). By letter dated September 7, 2010

County Waste asked the Board to reconsider its August 2010 Decision. On September 27, the

Board entered an order denying County Waste’s motion. County Waste of Ulster, LLC, 355

N.L.R.B. No. 193 (2010).

II.    Discussion

       County Waste contends that pursuant to New Process Steel, the August 2010 Decision is

unenforceable since two of the Board members that entered that decision also participated in the

panel that issued the February 2009 Decision. This argument is unavailing. In New Process

Steel, the Supreme Court held that section 3(b) of the NLRA as amended by the Taft-Hartley

Act, 29 U.S.C. § 153(b) (“Section 3(b)”),3 which sets out the Board’s quorum requirements and



       3
         This section, titled “[d]elegation of powers to members and regional directors; review
and stay of actions of regional directors; quorum; seal,” provides in pertinent part, that:

       The Board is authorized to delegate to any group of three or more members any or all of
       the powers which it may itself exercise . . . . A vacancy in the Board shall not impair the
       right of the remaining members to exercise all of the powers of the Board, and three
       members of the Board shall, at all times, constitute a quorum of the Board, except that
       two members shall constitute a quorum of any group designated pursuant to the first
       sentence hereof.

29 U.S.C. § 153(b).

                                               -5-
delegation procedures, does not permit a two member panel of the Board to decide a case when

the Board itself consists only of two members, 130 S. Ct. at 2638. Nothing in the text of Section

3(b) or the Supreme Court’s reasoning in New Process Steel addresses or even implicates how

the Board should handle cases that are vacated and remanded. Moreover, it is well-established

that even a reversal on appeal does not preclude an adjudicator from deciding the same question

on remand. Withrow v. Larkin, 421 U.S. 35, 57 (1975) Here, it is undisputed that the August

2010 Decision was issued by a three member panel of the Board. Accordingly, the Board acted

within its authority under Section 3(b).

III.   Conclusion

       For the foregoing reasons, the Board and Local 108’s motion to enforce is GRANTED

and County Waste’s petition to review is DENIED.




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