645 F.3d 870
7th Cir.2011Background
- Spurlino Materials, LLC (Spurlino) is a multi-state construction materials supplier with a Kentucky Avenue, Indianapolis, operation employing about fifteen concrete truck drivers.
- In 2005-2006, Kentucky Avenue truckers pursued unionization represented by Local Union 716; Bales, Eversole, and Stevenson were active supporters.
- Spurlino deviated from its seniority-based dispatching to the stadium project (PLA) in early 2006, bypassing top senior drivers.
- Spurlino created a temporary portable plant with four “portable plant drivers” who would lose seniority if not needed; the Union was not bargained with over this change.
- Spurlino later established an “alternate portable plant driver” position and conducted a new driving test without Union bargaining; it also excluded certain Union supporters from portable plant driver selection.
- Spurlino subcontracted warehouse project work to non-unit labor without bargaining, and Stevenson, a pro-Union employee, was suspended and later terminated; Stevenson claimed Weingarten rights were violated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Spurlino violate 8(a)(1) and 8(a)(3) by deviating from seniority to stadium project dispatches? | Spurlino argues PLA governs dispatch order. | NLRB contends deviation targeted anti-union motives. | Yes; sustained violation. |
| Did creation of portable/alternate plant driver positions trigger 8(a)(1) and 8(a)(5) bargaining duties? | Positions and tests were unilateral changes. | PLA may govern staffing; no bargaining required. | Yes; sustained violation. |
| Was excluding union supporters from portable plant driver roles a violation of 8(a)(1) and 8(a)(3)? | Company used neutral criteria; no anti-union motive. | Selections were non-discriminatory. | Yes; sustained violation. |
| Did Weingarten rights apply to Stevenson and was his termination unlawful under 8(a)(1) and 8(a)(3)? | Stevenson sought union representation during interrogation. | Termination based on conduct; not retaliatory. | Yes; sustained violation. |
| Did subcontracting warehouse work to non-unit labor violate 8(a)(1) and 8(a)(5)? | Subcontracting changed terms, required bargaining. | No mandatory bargain due to business need. | Yes; sustained violation. |
Key Cases Cited
- Fibreboard Paper Prods. Corp. v. N.L.R.B., 379 U.S. 203 (1964) (contracting out requires bargaining over changes in terms)
- N.L.R.B. v. Gerig's Dump Trucking, Inc., 137 F.3d 936 (7th Cir. 1998) (8(a)(1) interference; anti-union motive evidence)
- Dorothy Shamrock Coal Co., 833 F.2d 1263 (7th Cir. 1987) (anti-union hostility evidence supports 8(a)(3) finding)
- Beverly Farm Found., Inc. v. N.L.R.B., 144 F.3d 1048 (7th Cir. 1998) (impasse and unilateral changes vs. mandatory bargaining)
- Safeway Stores v. United Food and Commercial Workers Union, 270 N.L.R.B. 193 (1984) (bargaining over terms affected by new procedures)
- N.L.R.B. v. Joy Recovery Tech. Corp., 134 F.3d 1307 (7th Cir. 1998) (contracting out and unit labor decisions)