Lineback v. Spurlino Materials, LLC

546 F.3d 491, 71 Fed. R. Serv. 3d 1304, 184 L.R.R.M. (BNA) 3345, 2008 U.S. App. LEXIS 21090, 2008 WL 4490184
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 8, 2008
Docket07-3925
StatusPublished
Cited by50 cases

This text of 546 F.3d 491 (Lineback v. Spurlino Materials, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 71 Fed. R. Serv. 3d 1304, 184 L.R.R.M. (BNA) 3345, 2008 U.S. App. LEXIS 21090, 2008 WL 4490184 (7th Cir. 2008).

Opinions

RIPPLE, Circuit Judge.

The Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Ware-housemen 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.

[495]*495I

BACKGROUND

A. Facts

Spurlino, a full-service construction materials supplier, produces and sells ready-mix concrete. In November 2005, Spurli-no 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.

1. Spurlino’s Efforts to Undermine 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 Spur-lino’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. Mat-ney 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 Spurli-no 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.

[496]*496Meanwhile, 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.

2. Spurlino’s Discrimination Against Union Organizers

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 Spur-lino 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, Spurli-no 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

[497]

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Bluebook (online)
546 F.3d 491, 71 Fed. R. Serv. 3d 1304, 184 L.R.R.M. (BNA) 3345, 2008 U.S. App. LEXIS 21090, 2008 WL 4490184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lineback-v-spurlino-materials-llc-ca7-2008.