Lineback v. Spurlino Materials, LLC
| Decision Date | 08 October 2008 |
| Docket Number | No. 07-3925.,07-3925. |
| Citation | 546 F.3d 491 |
| Parties | Rik LINEBACK, Regional Director of the Twenty-Fifth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. SPURLINO MATERIALS, LLC, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven L. Sokolow, Kayce R. Compton (argued), National Labor Relations Board, Washington, DC, for Petitioner-Appellee.
Robert J. Brown (argued), Thompson Hine, Dayton, OH, for Respondent-Appellant.
Before BAUER, RIPPLE and MANION, Circuit Judges.
The Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local No. 716 ("the Union") filed charges with the National Labor Relations Board ("NLRB") against employer Spurlino Materials, LLC ("Spurlino"), alleging that Spurlino had committed multiple violations of the federal labor laws. On March 21, 2007, the NLRB's General Counsel consolidated the charges against Spurlino and issued a formal complaint.
On May 11, 2007, the NLRB's Regional Director filed a section 10(j) petition in the district court, seeking a preliminary injunction pending adjudication of the charges by the NLRB. See 29 U.S.C. § 160(j). The district court held a hearing on the petition and, on November 8, entered an order enjoining Spurlino from engaging in a number of unfair labor practices. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Spurlino, a full-service construction materials supplier, produces and sells ready-mix concrete. In November 2005, Spurlino acquired from another company, American Concrete Co., three ready-mix concrete plants in the Indianapolis area. Spurlino hired all or nearly all of the employees who had been working for American Concrete at each of these locations, and it maintained the seniority lists that had been put in place by American Concrete.
After the acquisition, Spurlino employees Ron Eversole, Gary Stevenson,1 Matt Bales and others contacted the Union. The Union petitioned the Board for a union representation election. Thereafter, Eversole, Stevenson and Bales led the unionization effort at Spurlino; they solicited union authorization cards from employees and spoke to employees about the Union.
Prior to the election, Spurlino management allegedly campaigned heavily to discourage its employees from voting for union representation. Spurlino managers, including manager Gary Matney, allegedly met individually with drivers to warn them that, if they voted for the Union, things were going to get "ugly" at the company. ALJ Tr. at 516. Multiple employees testified that Matney had informed them that Spurlino successfully had avoided unionization in the past and that, if the employees voted for the Union, the company would drag out the contract negotiations and pay any fines that it might incur. ALJ Tr. at 411-12, 600, 667. Spurlino's human resources manager also allegedly encouraged employees to vote against the Union.
On January 13, 2006, employees at Spurlino's Indianapolis plants voted in a secret ballot election conducted by the NLRB. Despite the efforts of the company to persuade them otherwise, a majority of the employees voted to be represented by the Union. Soon thereafter, Matney allegedly told an employee that the workers would not be receiving a wage and benefit increase that Spurlino had planned to implement because the employees had voted for the Union. ALJ Tr. at 516, 577-78. Matney also allegedly warned employees that things would be getting much worse at the company.
After the election, the NLRB certified the Union as the employees' exclusive collective bargaining representative.2 Spurlino and the Union accordingly began negotiations over their first labor contract in February 2006. Although the Union and the company held thirteen bargaining sessions between February 2006 and January 2007, the negotiations made little progress, and, on the record before us, the parties still have been unable to reach an agreement. The Union contends that this lack of progress is the result of an attempt by Spurlino to drag out negotiations, consistent with its earlier threats.
Meanwhile, attendance at Union meetings by Spurlino employees has declined significantly, from 12-15 employees in February 2006, to 2-4 employees by mid-2007. According to testimony from employees, fears of being seen at Union meetings and frustration with the lack of progress on a contract have caused this decline in attendance.
Spurlino's alleged efforts to undermine the Union did not end with the election. The charges in this case involve allegations of discrimination against Union leaders and refusal to bargain with the Union over changes in terms and conditions of employment, specifically in the method that Spurlino uses to assign work to its ready-mix concrete truck drivers.
Spurlino ordinarily dispatches its concrete truck drivers based on their position on a call list, which is ordered according to seniority. For example, at all relevant times, Union leader Ron Eversole has been first on Spurlino's call list because he is the most senior driver at the Kentucky Avenue facility. Because of his position on the call list, Eversole is dispatched first on any given work day. The dispatcher then moves down the call list until all drivers scheduled to work that day have been dispatched at least once. After drivers deliver their first loads of the day and return to the facility, they are dispatched to other jobs on a first-back, first-out basis.
In December 2005, Spurlino was awarded a large contract to provide ready-mix concrete for the construction of a new football stadium for the Indianapolis Colts. Construction work on the stadium project was covered by a labor agreement, the Project Labor Agreement for Work Stabilization for Stadium and Convention Center Expansion Construction ("PLA"), which was negotiated by the numerous contractors and unions involved in the project. As a condition of receiving the contract for the stadium project, Spurlino was required to become a party to the PLA and to abide by its terms when performing work on the stadium.
The PLA required companies contracted to work on the stadium project to pay wages and benefits greater than those that Spurlino generally paid. In compliance with the PLA, Spurlino paid its drivers a higher wage and more generous benefits for work performed on the stadium project than for the same work performed for other Spurlino customers; therefore, the drivers generally preferred to be dispatched to work on the stadium project. Spurlino's method for assigning drivers to the stadium project thus determined who would benefit from the higher wages provided under the PLA.
Spurlino initially serviced the stadium project by delivering concrete from its Kentucky Avenue plant, which is four or five miles away from the stadium. The Union requested that Spurlino dispatch drivers to the stadium project by seniority, according to the call list. Spurlino argued before both the ALJ and the district court that it simply integrated the stadium project dispatches into its regular seniority-based call list—if the stadium project dispatch was the first dispatch, then it went to Eversole, if it was the second it went to Mooney, and so on. Nevertheless, Spurlino also maintained the position that the PLA governing the stadium project itself required that seniority would play no role for purposes of the project.3
According to the Union, Spurlino allegedly manipulated its dispatches to the stadium project in an effort to punish Union leaders Eversole, Stevenson and Bales for their Union activities. Specifically, the Director alleged that Spurlino disregarded its usual "first-back, first-out" policy and dispatched other drivers to the stadium project out of order so that Eversole, Stevenson and Bales would not receive these valuable assignments. Spurlino, on the other hand, denies that it manipulated the dispatching during this time period.
As the stadium project began to require greater volumes of concrete, Spurlino decided to build a temporary and portable concrete plant on the stadium property. The portable plant was dedicated to providing concrete for the stadium project only, and it operated only on days that the stadium project had large daily demands for concrete. Again, because the drivers providing services for the stadium project received higher wages and benefits under the PLA, the portable plant was a highly desirable work assignment. Accordingly, the method of selecting employees who would work at that plant was important to the employees, and the Union requested that the portable plant drivers be selected by seniority. Spurlino declined to do so, citing the PLA.
Spurlino initially sought volunteers from the Kentucky Avenue plant to work at the portable plant. Spurlino managers informed the drivers that, if there were more volunteers than positions available, then selection would be based on the drivers' skills, qualifications and past performance. These considerations included performance on a driver test, attendance records, timeliness, truck cleanliness and overall attitude. Unlike Spurlino's usual practice, seniority would be used only to distinguish between two otherwise equally qualified candidates. Spurlino also allegedly informed the drivers that anyone assigned to the portable plant would lose his seniority at the Kentucky Avenue plant, even when the portable plant was not in operation and he returned to the Kentucky Avenue plant.
Despite the significant wage increase and benefits for those drivers assigned to the portable plant, Bales did not volunteer for one of these positions. He stated that he declined to seek a position there because the employees were...
To continue reading
Request your trial
-
United States v. Spectrum Brands, Inc.
...conduct in the past."); Russian Media Grp., LLC v. Cable America, Inc. , 598 F.3d 302, 307 (7th Cir. 2010) ; Lineback v. Spurlino Mat’ls, LLC , 546 F.3d 491, 504 (7th Cir. 2008). Thus, we are not persuaded that the lack of express statutory authorization for forward-looking injunctive relie......
-
The City of N.Y. v. Mickalis Pawn Shop Llc
...in legal conduct, or from engaging in illegal conduct that was not fairly the subject of litigation. See Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 504 (7th Cir.2008) (noting that an injunction is overbroad if it results in a “likelihood of unwarranted contempt proceedings for acts ......
-
Univ. of Notre Dame v. Sebelius
...the government, and the public unless I find that Notre Dame has less than a “negligible chance of success.” Lineback v. Spurlino Materials, 546 F.3d 491, 502 (7th Cir.2008); Kiel v. City of Kenosha, 236 F.3d 814, 815–16 (7th Cir.2000). This simply means that a greater harm can make up for ......
-
Chester v. Grane Healthcare Co.
...the District Court does not have jurisdiction to consider the ultimate merits of unfair labor practice cases, Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 502 (7th Cir.2008), the text of § 10(j) does not create such a presumption that the Board is entitled to relief with minimal showi......