Court OKs Single Location Strike Based on Unlawful Firing

By Jeffrey L. Rhodes Dec 8, 2015
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A union’s strike of one employer location, while not striking another location, based on the unlawful firing of a union member was legitimate, the U.S. Court of Appeals for the D.C. Circuit ruled.

Spurlino Materials LLC and Spurlino Materials of Indianapolis LLC are companies primarily owned and managed by James Spurlino that provide concrete to construction sites. Their workers are organized by the Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehouseman and Helpers Local Union Number 716. From January 2006 to August 2009, the union and the Spurlino companies were negotiating a collective bargaining agreement. During this period, a project labor agreement (PLA) covered the employment terms of Spurlino employees working on a convention center expansion project in downtown Indianapolis. The PLA contained a no-strike clause regarding work on the convention center project. Over the same time period, the union filed a series of unfair labor practice charges against the Spurlino companies. One of those charges claimed that the companies knowingly violated the National Labor Relations Act (NLRA) by firing one of the union’s most prominent supporters, Gary Stevenson. In December 2007, an administrative law judge found that Spurlino Materials unlawfully discharged Stevenson. The National Labor Relations Board (NLRB) affirmed that finding in March 2009, and the company appealed that decision to the 7th U.S. Circuit Court of Appeals. The parties engaged in settlement negotiations while the case was pending, but Stevenson was not reinstated.

Meanwhile, in late March 2010, union employees held a meeting regarding efforts they could take to support Stevenson’s charge. In August 2010, the union voted to strike one of Spurlino Materials’ locations in support of Stevenson. The union sent a letter to the employer stating that it would strike to protest Stevenson’s firing but would not strike at the Indianapolis convention center. After the strike, Spurlino Materials of Indianapolis refused to reinstate the striking employees and, instead, continued to use replacement employees for their positions. The union filed an NLRB charge claiming that the strike was an unfair labor practice strike and, therefore, the employees were entitled to reinstatement. The NLRB agreed and required the companies to reinstate the striking employees. This decision was appealed to the D.C. Circuit.

The Spurlino companies claimed on appeal that the NLRB erred in finding that their refusal to reinstate the striking employees was unlawful. They argued that the striking employees were not entitled to reinstatement because they engaged in an economic strike rather than an unfair labor practice strike and because the strike was an unlawful partial strike. Under the NLRA, economic strikes are not protected and striking employees may be replaced. However, unfair labor practice strikes are protected and striking employees cannot be replaced once the strike ends. The law states that, to be an unfair labor practice strike, the unfair labor practice need not be the sole, or even the major, cause or aggravating factor of the strike; it need only be a contributing factor. The Spurlino companies argued that the union’s self-serving representation that it was striking over an unfair labor practice was not enough to convert the strike into an unfair labor practice strike.

The D.C. Circuit disagreed with the Spurlino companies and found that the evidence was substantial that the union intended to strike against the unfair labor practice. The Spurlino companies also argued that, because the union did not strike the Indianapolis convention center, the union was engaging in an unlawful partial strike. The D.C. Circuit found that simply because the strike did not cover all employer locations did not make it a partial strike. Rather, it found that the law prohibiting partial strikes was designed for disruptive collective actions less severe than a strike, such as a work slowdown or refusal to follow company instructions.

The D.C. Circuit also found that Spurlino Materials and Spurlino Materials of Indianapolis were joint employers for purposes of the NLRA, and thus both were responsible for the failure to reinstate the employees.

Spurlino Materials LLC v. NLRB, D.C. Cir., No. 12-1034 (Nov. 13, 2015).

Professional Pointer: If a strike has any connection to an unfair labor practice, the employer must reinstate all of the striking employees once the strike is over.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon, a business and employment law firm in Arlington, Va.

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