805 F.3d 1131 (D.C. Cir. 2015), 12-1034, Spurlino Materials, LLC v. National Labor Relations Bd.

Docket Nº12-1034, 12-1123
Citation805 F.3d 1131
Opinion JudgeGarland, Chief Judge :
Party NameSPURLINO MATERIALS, LLC AND SPURLINO MATERIALS OF INDIANAPOLIS, LLC, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT, COAL, ICE, BUILDING MATERIAL, SUPPLY DRIVERS, RIGGERS, HEAVY HAULERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 716, INTERVENOR
AttorneyA. Jack Finklea argued the cause for petitioner. With him on the briefs was James H. Hanson. Timothy W. Wiseman entered an appearance. Greg P. Lauro, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, ...
Judge PanelBefore: GARLAND, Chief Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.
Case DateNovember 13, 2015
CourtUnited States Courts of Appeals, United States Court of Appeals (District of Columbia)

Page 1131

805 F.3d 1131 (D.C. Cir. 2015)

SPURLINO MATERIALS, LLC AND SPURLINO MATERIALS OF INDIANAPOLIS, LLC, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT,

COAL, ICE, BUILDING MATERIAL, SUPPLY DRIVERS, RIGGERS, HEAVY HAULERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 716, INTERVENOR

Nos. 12-1034, 12-1123

United States Court of Appeals, District of Columbia Circuit

November 13, 2015

Argued September 11, 2015.

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[Copyrighted Material Omitted]

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

A. Jack Finklea argued the cause for petitioner. With him on the briefs was James H. Hanson. Timothy W. Wiseman entered an appearance.

Greg P. Lauro, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.

Neil E. Gath was on the brief for intervenor Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local Union No. 716 in support of respondent. William R. Groth entered an appearance.

Before: GARLAND, Chief Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.

OPINION

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Garland, Chief Judge :

The petitioner's employees conducted a strike that they said was intended to protest the company's unlawful termination of and failure to reinstate a prominent union supporter. At the same time, they honored a clause in an agreement they had with the company not to strike -- for any reason -- on one particular construction project. The National Labor Relations Board (NLRB) found that the strike was indeed aimed at unfair labor practices, and that the employees were entitled to reinstatement when they offered to return to work. It further found that the employees' decision to respect the specific no-strike clause did not convert the strike into an unprotected partial strike.

In light of these findings, the N.L.R.B. concluded that the company's refusal to reinstate the striking workers was itself an unfair labor practice, and it ordered the company to reinstate the employees and to make them whole. The company has filed a petition for review of the Board's decision and order, and the Board has filed a cross-application for enforcement. We deny the company's petition and grant the Board's cross-application.

I

Spurlino Materials (SM) and Spurlino Materials of Indianapolis (SMI), collectively " Spurlino," supply and deliver concrete to construction sites. James Spurlino is the majority owner, president, and designated manager of both SM and SMI. Each has a principal office in Ohio. SM's operating facility is located in Middletown, Ohio. SMI operates in Indianapolis, Indiana -- about two hours away.

In January 2006, Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local Union No. 716, was certified as the exclusive bargaining representative of SMI's drivers and plant operators. Over the following years, the union and SMI met a number of times in an unsuccessful effort to negotiate a collective bargaining agreement. Their last negotiating session, at which they again failed to reach agreement, took place in August 2009.

During the relevant period, the only contract that covered terms and conditions of employment for the unit employees was a Project Labor Agreement (PLA) for a convention center expansion project in downtown Indianapolis. Both SMI and the union (among other employers and unions) were signatories. The PLA applied only to work performed on that project. Article 12 of the agreement contained a no-strike clause with respect to work on the convention center project.

During this period, the union also filed a series of unfair labor practice charges. Relevant here is the union's charge that SM violated section 8(a)(3) of the National

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Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(3), by discharging one of the union's most prominent supporters, Gary Stevenson, in February 2007. In December 2007, an Administrative Law Judge (ALJ) found that SM did unlawfully discharge Stevenson. In March 2009, a two-member National Labor Relations Board affirmed that finding and ordered SM to reinstate Stevenson with backpay. SM and the N.L.R.B. subsequently filed cross-applications for review and enforcement of the Board's decision and order in the United States Court of Appeals for the Seventh Circuit. In September 2009, at the direction of that court, the parties entered into settlement discussions. Those discussions failed and, in late March 2010, the parties began filing their appellate briefs.1

Around that time, employees began to call the union's president, Jim Cahill, asking about the status of both the Stevenson unfair labor practices litigation and the contract negotiations with SMI. In response, Cahill called a meeting to update the employees and take a vote on whether to engage in an unfair labor practice strike. At the May 13, 2010 meeting, the union's attorney, Geoffrey Lohman, gave an update on the status of the Seventh Circuit litigation, informed the employees of the recent unsuccessful attempt to settle the case, and predicted that it might be years before the litigation concluded.

Lohman also took questions. Some employees asked about the Stevenson litigation and said that they should do something to get the company to comply with the Board's reinstatement order. At least one employee asked a question related to the status of the contract negotiations, prompting Lohman to provide an update about those negotiations as well. When the conversation turned to a strike, Lohman explained the difference between an unfair labor practice strike and an economic strike, advising the employees that SMI would be required to reinstate them upon request if they engaged in the former, but not necessarily if they engaged in the latter. Accordingly, he said, the union recommended that, if there were to be a strike, it should be over the company's unfair labor practices. Following Lohman's presentation, the employees voted unanimously to engage in an unfair labor practice strike.

Wishing to make the strike as effective as possible, the union did not immediately call for the employees to strike. Ten weeks later, however, after learning that SMI would start a " big job" on August 3, Cahill decided that it was an opportune moment. Spurlino Materials, LLC, 357 N.L.R.B. No. 126, at 4 (Dec. 6, 2011) (ALJ Op.). On the morning of August 3, he had a strike letter delivered to SMI's operations supervisor/dispatcher. The letter stated that the employees would be engaging in an unfair labor practice strike that would continue " until Spurlino Materials remedie[d] the unfair labor practice it committed in discharging Gary Stevenson," including giving Stevenson " an offer of reinstatement . . . [and] lost wages." J.A. 599.

The letter further stated that the strike would " cover all work performed by the bargaining unit which is not subject to a

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labor agreement with a binding no strike clause." Id. In that regard, it said that the union would " continue to honor Article 12 of the Project Labor Agreement" for the convention center project, id., which stated that the signatory unions would not engage in any " economic or unfair labor practice strike" on that project, PLA ¶ 12.1 (J.A. 567). Accordingly, the letter declared that unit employees assigned to that project would " fully perform all work covered by the PLA in accordance with that no strike provision" and would not picket at that jobsite. J.A. 599.

SMI was able to continue its operations throughout the course of the nine-day strike, using SM employees from Ohio and hiring approximately sixteen replacement workers to cover the striking employees' work. Despite the striking employees' willingness to perform PLA-related work, SMI did not assign them any such work. Throughout the strike, the employees picketed with signs stating that they were on an " unfair labor practice strike for the illegal termination of Gary Stevenson." Spurlino Materials, 357 N.L.R.B. No. 126, at 5.

On August 11, Cahill gave SMI's operations manager a letter notifying the company that the employees were prepared to end the strike and unconditionally return to work the next day. The letter demanded that the company immediately recall the employees to work. SMI, however, refused to reinstate the strikers. It told the union that it had no duty to do so, both because the strike was an economic strike (and SMI had hired permanent replacements for all positions), and because the strike was an unprotected partial strike since it had excluded the convention center site.

Thereafter, the union filed an unfair labor practice charge alleging that SMI, SM, or both as a single employer had violated sections 8(a)(3) and (1) of the NLRA, 29 U.S.C. § § 158(a)(3) & (1), by refusing to reinstate the striking employees. Following a hearing, an ALJ concluded that SMI and SM constituted a single employer that had violated the Act as alleged. The ALJ ordered the companies to reinstate the employees and make them whole for any loss of earnings and benefits suffered as a result of the unlawful refusal to reinstate them. The Board adopted the ALJ's findings and recommendations in all relevant respects.

Spurlino now petitions for review and the Board cross-applies for enforcement of its order. Spurlino defends its refusal to reinstate the striking employees on two grounds, which we take up in Part II. In Part III, we address Spurlino's further contention that the Board erred in finding that SMI and SM constituted a single...

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12 practice notes
  • N.Y. Party Shuttle, LLC v. Nat'l Labor Relations Bd., 112221 FED5, 20-61072
    • United States
    • United States Court of Appeals (5th Circuit)
    • 22 Noviembre 2021
    ...contradicted-the Board's finding of 6 common ownership is supported by substantial evidence. See Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1142 (D.C. Cir. 2015) (noting that common ownership need not be absolute, just substantial, and that no particular corporate structure is B. The B......
  • ALARIS HEALTH AT ROCHELLE PARK, (2016)
    • United States
    • 25 Febrero 2016
    ...strike. Strikes may be categorized as either economic or unfair labor practice strikes. Spurlino Materials, LLC, et ano. v. NLRB, 805 F.3d 1131, 1136-1137 (D.C. Cir. 2015), citing Gen. Indus. 25Emps. Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C. Cir. 1991). That categorization carries ......
  • Who Is Merrick Garland And What Does His Nomination Mean For Labor And Employment Law?
    • United States
    • Mondaq United States
    • 29 Marzo 2016
    ...Garland has continued his pattern of administrative deference in his more recent opinions as well. See Spurlino Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. 2015); see also Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. Judge Garland also has shown a willingness to uphold ad......
  • DH Long Point Management LLC v. National Labor Relations Board, 051421 FEDDC, 20-1030
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • 14 Mayo 2021
    ...case." Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1100 (D.C. Cir. 2019) (citing Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1136 (D.C. Cir. 2015); Bally's Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)). Substantial evidence is defined as ......
  • Request a trial to view additional results
9 cases
  • N.Y. Party Shuttle, LLC v. Nat'l Labor Relations Bd., 112221 FED5, 20-61072
    • United States
    • United States Court of Appeals (5th Circuit)
    • 22 Noviembre 2021
    ...contradicted-the Board's finding of 6 common ownership is supported by substantial evidence. See Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1142 (D.C. Cir. 2015) (noting that common ownership need not be absolute, just substantial, and that no particular corporate structure is B. The B......
  • ALARIS HEALTH AT ROCHELLE PARK, (2016)
    • United States
    • 25 Febrero 2016
    ...strike. Strikes may be categorized as either economic or unfair labor practice strikes. Spurlino Materials, LLC, et ano. v. NLRB, 805 F.3d 1131, 1136-1137 (D.C. Cir. 2015), citing Gen. Indus. 25Emps. Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C. Cir. 1991). That categorization carries ......
  • DH Long Point Management LLC v. National Labor Relations Board, 051421 FEDDC, 20-1030
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • 14 Mayo 2021
    ...case." Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1100 (D.C. Cir. 2019) (citing Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1136 (D.C. Cir. 2015); Bally's Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)). Substantial evidence is defined as ......
  • HY-BRAND INDUSTRIAL CONTRACTORS, LTD AND BRANDT CONSTRUCTION, CO., SINGLE EMPLOYERS AND/OR JOINT EMP, (2017)
    • United States
    • 14 Diciembre 2017
    ...NLRB 592, 592 fn. 2 (1984); Alexander Bistritzky , 323 NLRB 524, 524–525 (1997); Spurli-no Materials, LLC, 357 NLRB 1510 (2011), enfd. 805 F.3d 1131 (D.C. Cir. 2015).3See Rogan Brothers Sanitation, Inc., 362 NLRB No. 61 (2015), slip op. at 5–6, enfd. 651 Fed.Appx. 34 (2nd Cir. 2016).4Boliva......
  • Request a trial to view additional results
3 firm's commentaries
  • Who Is Merrick Garland And What Does His Nomination Mean For Labor And Employment Law?
    • United States
    • Mondaq United States
    • 29 Marzo 2016
    ...Garland has continued his pattern of administrative deference in his more recent opinions as well. See Spurlino Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. 2015); see also Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. Judge Garland also has shown a willingness to uphold ad......
  • Who is Merrick Garland and What Does His Nomination Mean for Labor and Employment Law?
    • United States
    • JD Supra United States
    • 17 Marzo 2016
    ...Garland has continued his pattern of administrative deference in his more recent opinions as well. See Spurlino Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. 2015); see also Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. Judge Garland also has shown a willingness to uphold ad......
  • Analysis of Recent Cases Reveals What Justice Garland Could Mean for Employers
    • United States
    • JD Supra United States
    • 21 Marzo 2016
    ...to agency action could be very harmful to businesses in the face of activist federal agencies. Spurli​no Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. In this case, the court of appeals denied the petition of construction contractor Spurlino Materials, LLC for review of a determination b......

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