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Lack of Quorum on NLRB Invalidated Agency's Order, Plus Arbitration Matter

By FindLaw Staff on June 23, 2010 1:00 PM

NLRB v. Talmadge Park, No. 09-2601, involved the National Labor Relations Board's petition for enforcement of an order.  The court of appeals denied the petition, on the ground that the order issued on May 27, 2009 when the Board comprised only two members, and accordingly the order was invalid on the basis of the Supreme Court's decision in New Process Steel, L.P. v. NLRB.

Insurance Co. of N. Am. v. Pub. Serv. Mut. Ins. Co., No. 09-3640, concerned an appeal from the district court's order granting respondent's Fed. R. Civ. P. 60(b)(2) motion based on newly discovered evidence that an arbitrator who had resigned was, in fact, able to rejoin the arbitration panel prior to the district court's decision on whether to convene a new panel or order a replacement arbitrator.  The court of appeals affirmed on the ground that the rule articulated in Marine Products Export Corp. v. M.T. Globe Galaxy, 977 F.2d 66 (2d Cir. 1992) - that, absent "special circumstances," if a vacancy arises on an arbitral panel due to the death of an arbitrator prior to the rendering of an award, a new panel should be convened - did not apply to a vacancy occasioned by a resignation, and that, in the instant case, the district court's decision either to reappoint the arbitrator who had resigned, or, in the alternative, to direct INA to appoint a replacement was proper pursuant to 9 U.S.C. section 5.

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