McCarthy Construction Co.

MCCARTHY CONSTRUCTION CO. 355 NLRB No. 67 365 McCarthy Construction Company and Cement Ma- sons Local 1, International Union of Bricklayers and Allied Craftworkers (BAC), AFL–CIO. Cases 7–CA–51474 and 7–CA–51647 August 6, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND PEARCE On February 2, 2010, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 355 NLRB 50.1 Thereafter, the Gen- eral Counsel filed an application for enforcement in the United States Court of Appeals for the Sixth Circuit. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be main- tained. Thereafter, the court of appeals dismissed the General Counsel’s application for enforcement. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and conclu- sions and to adopt the recommended Order to the extent and for the reasons stated in the decision reported at 355 NLRB 50 (2010), which is incorporated by reference.3 2 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 deci- sion. 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. 3 In adopting the provision in the amended remedy section of the de- cision, denying the General Counsel’s request for an imposed bargain- ing schedule (355 NLRB 50), we rely on Leavenworth Times, 234 NLRB 649 (1978). We find it unnecessary to additionally rely on Myers Investigative & Security Services, 354 NLRB 367 (2009). Chairman Liebman believes that such a remedy may be worthy of consideration in a future case. Leavenworth Times, supra at 649–651 (Member Murphy’s dissent).