Construction Company Must Reinstate Workers Post-Strike

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By Lisa Nagele-Piazza

Nov. 13 — A construction materials supplier in Indiana must reinstate employees who engaged in a strike and compensate them for any related lost wages and benefits, the U.S. Court of Appeals for the District of Columbia Circuit ruled Nov. 13.

The National Labor Relations Board properly concluded that Spurlino Materials LLC and an Indianapolis affiliate violated federal labor law by refusing to reinstate workers after a nine-day unfair labor practice strike protesting the discharge of an active union supporter, the federal appeals court said.

The court rejected the company's argument that the employees engaged in an economic strike, not an unfair labor practice strike. The distinction is significant because an employer isn't generally required to reinstate economic strikers if it replaces them with permanent new hires during the strike. But unfair labor practice strikers are entitled to reinstatement, even if the employer hired replacements.

In this case, the court found that the strike could be categorized as an unfair labor practice strike because it was at least partially motivated by Spurlino's refusal to reinstate the union supporter the NLRB deemed was unlawfully discharged. Although Spurlino produced evidence that the strikers also had economic motivation, an employer's unfair labor practice “need only be a contributing factor,” the court said.

Additionally, the board reasonably found that the workers' decision to honor a no-strike agreement for one particular project site “did not convert their otherwise lawful strike into an unprotected partial strike,” the appeals court held.

Strike Supported Union Driver

In January 2006, the Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716 became the exclusive bargaining representative of drivers and plant operators at the Spurlino affiliate in Indianapolis. But the parties' attempts to negotiate a collective bargaining agreement failed, according to the court.

The union filed several unfair labor practice charges against Spurlino, including a charge that the company unlawfully discharged a “prominent” union supporter, Gary Stevenson. The NLRB ultimately ordered the company to reinstate Stevenson with back pay.

The Stevenson litigation advanced to the U.S. Court of Appeals for the Seventh Circuit, and the parties entered settlement discussions at the appeals court's direction in September 2009. But the parties failed to reach an agreement.

The Seventh Circuit ultimately upheld the NLRB's decision in Stevenson's case (122 DLR A-2, 6/24/11). But in May 2010, while the case was still pending, the union held a meeting to discuss the litigation and the status of contract negotiations. The union's attorney explained the difference between an economic strike and an unfair labor practice strike, and the employees unanimously voted to engage in an unfair labor practice strike to support Stevenson's reinstatement.

During the nine-day strike, the Indianapolis location was able to continue operations using employees from Spurlino's Ohio plant and by hiring replacement workers. When the strike ended, Spurlino refused to reinstate the participating employees.

Spurlino argued that the employees engaged in an unprotected economic strike, but the court disagreed.

“Spurlino cannot win that argument as long as the employees struck at least in part to protest its unfair labor practices,” the D.C. Circuit said.

The union didn't make any economic demands during the strike, the court said. Further, the union's strike-letter and the employee's picket signs stated that workers were striking because the company refused to reinstate Stevenson, it said.

Thus, the board's conclusion that the strike was an unfair labor practice strike was supported by the evidence, the court held.

No Unprotected ‘Partial Strike.'

Spurlino argued that, even if the strike was an unfair labor practice strike, the employees engaged in an unprotected “partial strike” by offering to continue working on one convention center project in Indianapolis.

The National Labor Relations Act only affords protection to “complete strikes,” the court explained. Partial strikes are not protected when employees attempt to “pick and choose the work they will do” and “set their own terms and conditions of employment in defiance of their employer's authority to determine those matters,” it said.

But Spurlino and the union were signatories to a project labor agreement—specifically for the convention center project—that contained a no-strike clause, the court said. Thus, it was reasonable for the board to conclude that the workers' “respect for a prior contractual agreement” didn't make the strike an unprotected partial strike, the appeals court held.

Judge Merrick B. Garland wrote the opinion, joined by Judges Stephen F. Williams and A. Raymond Randolph.

Alvin J. Finklea, Timothy W. Wiseman and James H. Hanson, of Scopelitis, Garvin, Light, Hanson & Feary PC, Indianapolis, represented Spurlino. NLRB attorneys John H. Ferguson, Linda Dreeben, Greg P. Lauro and Julie B. Broido represented the board.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com