805 F.3d 1131
D.C. Cir.2015Background
- Spurlino Materials of Indianapolis (SMI) drivers/plant operators were unionized; only a Project Labor Agreement (PLA) for a downtown convention-center project governed work on that specific project and contained a no‑strike clause.
- The union charged Spurlino (SM and SMI) with unlawfully firing prominent union supporter Gary Stevenson in 2007; the NLRB and later the Seventh Circuit ordered reinstatement, but litigation/appeals continued into 2010.
- On May 13, 2010 employees voted to undertake an unfair‑labor‑practice (ULP) strike to protest Stevenson’s discharge and failure to reinstate him; the strike began August 3, 2010 and expressly excluded PLA work (honoring the PLA no‑strike clause).
- The nine‑day strike included picketing and a strike letter stating the strike would continue until Stevenson was offered reinstatement and that PLA work would be honored; when employees offered to return unconditionally, SMI refused, claiming the strike was either economic or an unprotected partial strike.
- An ALJ and the NLRB found (1) the strike was an unfair‑labor‑practice strike, (2) the PLA exception did not render it an unprotected partial strike, and (3) SMI and SM were a single employer; the Board ordered reinstatement and make‑whole relief.
- The D.C. Circuit denied Spurlino’s petition for review and enforced the Board’s order.
Issues
| Issue | Spurlino's Argument | NLRB's / Union's Argument | Held |
|---|---|---|---|
| 1) Whether the strike was an unfair‑labor‑practice (ULP) strike or an economic strike | The strike was economic (employees had economic motives); thus employer could hire permanent replacements and need not reinstate | The strike was at least partly motivated by protest of Stevenson’s unlawful discharge/failure to reinstate, so it was a ULP strike entitled to reinstatement | Court upheld Board: strike was an unfair‑labor‑practice strike (substantial evidence) |
| 2) Whether honoring the PLA no‑strike clause (continuing PLA work) converted the strike into an unprotected partial strike | Even if ULP, the employees’ exclusion of PLA work made the strike a partial strike and unprotected | The PLA exception was a contractual obligation; honoring it did not amount to impermissible ‘‘picking and choosing’’ of work or an attempt to set terms of employment | Court upheld Board: respecting the PLA did not convert the strike into a partial strike |
| 3) Whether SMI and SM constitute a single employer for NLRA liability | Companies were separate; no triggering act by SM for single‑employer analysis; limited common control | Common ownership, management/control by James Spurlino, interrelated operations and centralized labor relations supported single‑employer finding | Court affirmed Board: substantial evidence supported single‑employer status |
| 4) Whether Board’s factual findings were supported by substantial evidence / law | Board relied on subjective/self‑serving testimony and attenuated timing regarding Stevenson | Board’s findings relied on voting records, strike letter, picket signs, testimony, and operational/financial records showing common control | Court found substantial evidence supported Board and applied legal standards correctly |
Key Cases Cited
- NLRB v. Int’l Van Lines, 409 U.S. 48 (1972) (distinguishes rights of economic vs. ULP strikers regarding reinstatement)
- Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956) (ULP strikers entitled to reinstatement even if employer hired replacements)
- Metro. Edison Co. v. NLRB, 460 U.S. 693 (1983) (waiver of right to strike must be clear and unmistakable)
- NLRB v. City Disposal Sys. Inc., 465 U.S. 822 (1984) (consequences of invalidating protected strike status)
- Teamsters Local Union No. 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990) (employer’s unfair practice need only be a contributing cause of a strike)
- Gen. Indus. Emps. Union, Local 42 v. NLRB, 951 F.2d 1308 (D.C. Cir. 1991) (objective and subjective evidence relevant to strike categorization)