Spurlino Materials, LLC

SPURLINO MATERIALS, LLC 355 NLRB No. 77 409 Spurlino Materials, LLC and Coal, Ice, Building Ma- terial, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, and Local Union No. 716, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Cases 25–CA–30053, 25– CA–30054, 25–CA–30080, 25–CA–30104, 25– CA–30156, 25–CA–30179, and 25–CA–30362 August 9, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND HAYES On March 31, 2009, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 353 NLRB 1198.1 Thereafter, the General Counsel filed an application for enforcement. On June 17, 2010, the United States Supreme Court is- sued its decision in New Process Steel, L.P. v. NLRB, 136 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 maintained. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Su- preme Court’s decision. 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 353 NLRB 1198 (2009), which is incorporated herein by ref- erence.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 We find it unnecessary to rely on Industrial Hard Chrome, 352 NLRB 298 fn. 2 (2008), as cited at 298 fn. 4 of the decision. Member Hayes joins Member Schaumber in finding that Respondent untimely raised, and thus waived, an “economic exigency” argument. See 353 NLRB 1198, 1198 fn. 3. Additionally, in adopting the judge’s conclusion that the Respondent unlawfully suspended and subsequently discharged employee Gary Stevenson, Member Hayes agrees with the statements made by Member Schaumber regarding the relevance of “disproportionate” discipline and the well-established Board and judi- cial doctrine that the Board cannot simply substitute its business judg- ment for that of the employer.