Spurlino Materials, LLC v. National Labor Relations Board

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2875 & 10-3049

S PURLINO M ATERIALS, LLC,

Petitioner, Cross-Respondent,

v.

N ATIONAL L ABOR R ELATIONS B OARD ,

Respondent, Cross-Petitioner,

and

C OAL, ICE, B UILDING M ATERIAL, S UPPLY D RIVERS,

R IGGERS, H EAVY H AULERS, W AREHOUSEMEN AND

H ELPERS L OCAL U NION N O . 716, A/W INTERNATIONAL

B ROTHERHOOD OF T EAMSTERS, C HAUFFEURS,

W AREHOUSEMEN AND H ELPERS OF A MERICA,

Intervening Respondent, Cross-Petitioner.

Petition for Review and Cross-Application

for Enforcement of Order of the

National Labor Relations Board.

NLRB Case Nos. 25-CA-30053; 25-CA-30054; 25-CA-30080;

25-CA-30104; 25-CA-30156; 25-CA-30179 & 25-CA-30362

A RGUED JANUARY 11, 2011—D ECIDED JUNE 23, 2011

2 Nos. 10-2875 & 10-3049

Before E ASTERBROOK, Chief Judge, and C UDAHY and

P OSNER, Circuit Judges.

C UDAHY, Circuit Judge. Here, the National Labor Rela-

tions Board (Board) applies for enforcement of its

order against cross-petitioner Spurlino Materials, LLC

(Spurlino),1 which found Spurlino to have engaged

in a variety of unfair labor practices and imposed

remedial measures. The relevant Union intervenes on

behalf of the NLRB. Spurlino’s petition consists mainly

of a reprise of factual arguments that did not persuade

the Board. Consistent with the deferential standard of

review accorded the Board’s ruling, we grant the ap-

plication for enforcement.

I. Background

A. Facts

Spurlino is a construction materials supplier doing

business in several states including Indiana. This case

arises from events at the company’s concrete distribu-

tion center on Kentucky Avenue in Indianapolis, which

is a base of operations for approximately fifteen concrete

truck drivers. The relevant facts consist of various

discrete episodes of hostility on the part of Spurlino

managers toward the Kentucky Avenue employees’

1

Spurlino Materials was majority-owned by Jim Spurlino at

the time relevant to this case. “Spurlino” will refer to the

company, and the company owner will be indicated by his

full name.

Nos. 10-2875 & 10-3049 3

efforts to unionize, and toward individual truckers

who conspicuously supported the Union.

In 2005 a number of the Kentucky Avenue truckers

began an effort to unionize. In January of 2006 the Ken-

tucky Avenue truckers elected to be represented by

the Coal, Ice, Building Material and Supply Drivers,

Riggers, Heavy Haulers, Warehousemen, and Helpers

Local Union No. 716 (Union). Truck drivers Matthew

Bales, Ron Eversole and Gary Stevenson were vocal

supporters of the Union at the Kentucky Avenue center.

All three served on the Union’s organizing committee and

as election observers, and after the Union was certified

they served on its bargaining committee.

The company’s established practice was to dispatch

the Kentucky Avenue concrete truckers in order of sen-

iority, such that earlier-hired truckers were the first

dispatched and had the first opportunity to earn pay

for deliveries.2 Of fifteen truckers, Eversole was first

in seniority, and Stevenson and Bales were fourth and

fifth, respectively.

In February of 2006, Spurlino began supplying concrete

for the construction of what is now the Lucas Oil Stadium,3

pursuant to a Project Labor Agreement (PLA). The PLA

2

The precise contours of the relationship between deliveries

and pay are not clear from the record. But it is clear, and

sufficient for our purposes, that deliveries were a

principal determinant (and possibly the sole determinant) of

trucker pay.

3

The stadium, completed in 2008, is home to the NFL’s

Colts football team and seats over 60,000 spectators.

4 Nos. 10-2875 & 10-3049

bound Spurlino and the instant Union as well as

many other companies and unions involved in building

the stadium. The stadium project paid Spurlino’s truckers

a special, higher hourly wage.

Spurlino did not initially follow its regular seniority

practice when dispatching its Kentucky Avenue truckers

to the lucrative stadium project. Instead, in early dis-

patches to the stadium project (a period from February 16

to March 24, 2006), Spurlino routinely dispatched sev-

eral more junior truckers bypassing Eversole, Stevenson

and Bales. At the end of that period, the records as

credited by the administrative law judge (ALJ) indicated a

return (more or less) to the regular seniority order.

In May of 2006, Spurlino established a temporary

plant near the stadium construction site. The company

determined to staff this temporary plant with four

truckers from the Kentucky Avenue center (“portable

plant drivers”). Under the company’s plan, these

“portable plant drivers” would work at the portable

plant unless they were not needed there, in which case

they would work from the Kentucky Avenue facility but

would be dispatched last (i.e., they would lose their sen-

iority on the Kentucky Avenue dispatch list). The com-

pany did not bargain with the Union in connection with

the creation of this new portable plant role. Instead, the

company posted a notice at the Kentucky Avenue facility

of the new position seeking volunteers for the position.

The company informed the Union about its solicitation

of volunteers for the position on the same day. Despite

the loss of seniority, the portable plant driver position

Nos. 10-2875 & 10-3049 5

was an attractive opportunity, and thirteen of the

fifteen Kentucky Avenue drivers volunteered.

The company purported to use a formal evaluation

process to select the four portable plant drivers. The

process included a test of proficiency with driving

rear-discharge trucks, the type in use at the stadium

project. Bales, Eversole and Stevenson each volunteered

for the position, but the company did not invite Bales

or Eversole to take the driving test and did not select

Stevenson despite his proficient test performance. In

contrast, Spurlino selected one driver who refused

to take the test and another whose performance was

incompetent.

Later, the company created an “alternate portable

plant driver” position for days when the stadium

project required more concrete than the four regular

portable plan drivers could deliver. Unlike the reg-

ular portable plant drivers, these alternates were

allowed to retain their seniority at the Kentucky Avenue

facility. Spurlino did not notify or bargain with the

Union in advance over the creation of this additional

position, nor did it offer the alternate position to Bales,

Eversole or Stevenson.

In August of 2006 a discrete issue arose involving only

Stevenson. Spurlino, adjusting to the need, arising from

Union recognition, to account for Union dues in employee

paychecks, neglected to redact employee social security

numbers from certain deduction-related information

circulated together with the current period’s paycheck.

This practice evidently resulted in the circulation of

6 Nos. 10-2875 & 10-3049

the affected employees’ social security numbers to much

or all of the Kentucky Avenue staff. After realizing the

mistake, the company sought to retrieve the cards, and

another employee approached Stevenson and asked him

to return his copy. Stevenson told him, falsely, that he

had thrown it away. He was summoned to the office

of Spurlino operations manager Jeff Davidson. Stevenson

asked if he could contact his union representative to

find out if he had to return the papers, but Davidson

continued questioning him. Ultimately, Stevenson drew

the papers from his pocket and returned them to the

supervisor. The company suspended Stevenson the

next day, and fired him about six months later.

In October of 2006, Spurlino secured a contract to

supply concrete for a large warehouse project in Plain-

field, Indiana. Instead of using its existing employees

and making new hires to accommodate the large project,

Spurlino hired subcontractors and used Spurlino em-

ployees from Ohio who were not part of the Kentucky

Avenue bargaining unit. After reaching an agreement

with the subcontractors, Spurlino informed the Union

of the arrangement. The Union’s attorney objected to the

unilateral decision to hire outside subcontractors, and

insisted that the company was required to bargain with

the Union. The company refused to reconsider.

B. Procedural History

The Union filed charges involving a number of matters

with the NLRB General Counsel, who issued a complaint

against Spurlino. In December of 2007, an ALJ ruled in

Nos. 10-2875 & 10-3049 7

favor of the Union on numerous grounds. In so doing, the

ALJ found testimony by several of Spurlino’s witnesses,

including majority owner Jim Spurlino, general manager

Gary Matney and operations manager Jeff Davidson, to be

lacking in credibility. On the other hand, the ALJ credited

the testimony of five Spurlino drivers that Matney made

anti-union statements around the time of the election. The

ALJ further credited testimony that Matney engaged in a

campaign to dissuade the employees from unionizing

and made statements to the effect that the employees

would lose desirable benefits or be fired for unionizing

and that the company would intentionally prolong

union bargaining. The ALJ credited testimony that after

the Union election, Matney stated that things would

“get uglier than what they were,” that the union “makes

[him] want to do mean things,” and that they would

“lose . . . bonuses and more money and vacations and

stuff like that . . . .” The ALJ issued an order finding the

company to have engaged in several unfair labor prac-

tices and imposing several remedial sanctions.

Both parties filed exceptions to the ALJ’s decision, and

in March of 2009, a two-member panel of the NLRB

issued an order affirming the ALJ’s decision, with only one

notable modification.4

4

Before the ALJ, the company had argued that it did not

deviate from the seniority list with respect to the stadium

project. The ALJ disbelieved this factual contention, but never-

theless concluded that the company’s reason for deviating

(continued...)

8 Nos. 10-2875 & 10-3049

The NLRB applied for enforcement of its order with this

court. But before the case could be set for argument, the

Supreme Court decided New Process Steel, L.P. v. N.L.R.B.,

130 S. Ct. 2635 (2010), which held that a two-member

panel of the NLRB could not properly exercise the

Board’s authority; three members were required. Id. at

2644-45. The NLRB filed an unopposed motion to

remand, which this court granted. In August 2010, a

three-member panel of the Board adopted the reasoning

of the prior two-member panel and issued the order

presently before us on application for enforcement. The

Board’s order in its present iteration would require

Spurlino to reinstate Stevenson, to make its pro-union

employees whole for losses attributable to its unlawful

conduct, to post a remedial notice and to cease and

desist from the conduct found to have been unlawful.

II. Analysis

This appeal presents the following questions:

1. Whether the Board was supported by substantial

evidence in ruling that Spurlino violated National

Labor Relations Act (NLRA) §§ 8(a)(1) and 8(a)(3) by

4

(...continued)

was innocent: the company wanted to feature its newest

trucks at the high-profile stadium project. Because this argu-

ment was invented by the ALJ and not argued by Spurlino,

the Board rejected it, consistent with Allied Mech. Servs.,

346 N.L.R.B. 326, 328 n.14 (2006).

Nos. 10-2875 & 10-3049 9

failing to dispatch Bales, Eversole and Stevenson to

the stadium project in accordance with seniority.

2. Whether the Board was supported by substantial

evidence in ruling that Spurlino violated §§ 8(a)(1)

and 8(a)(5) by creating the positions of portable

plant driver and portable plant alternate driver, and

in implementing a test to fill these positions.

3. Whether the Board was supported by substantial

evidence in ruling that Spurlino violated NLRA

§§ 8(a)(1) and 8(a)(3) by failing to select Bales, Eversole

and Stevenson as portable plant drivers.

4. Whether the Board was supported by substantial

evidence by ruling that Spurlino violated Gary

Stevenson’s Weingarten rights, and violated NLRA

§§ 8(a)(1) and 8(a)(3) by suspending and firing him.

5. Whether the Board was supported by substantial

evidence in ruling that Spurlino violated NLRA

§§ 8(a)(1) and 8(a)(5) by assigning warehouse pro-

ject work to individuals outside the bargaining unit.

We note at the outset that Spurlino’s petition for

review raises only a few legal arguments against

granting enforcement of the Board’s order. Otherwise, the

company’s brief consists of reiterating its own account

of the facts. But Spurlino has done nothing to discredit

the ALJ’s factual findings as adopted by the Board, nor

to rehabilitate the company witnesses the ALJ disbe-

lieved. And even if Spurlino’s alternative account is

plausible, this is insufficient for the company to prevail

given the deferential standard of review at this stage

of the litigation.

10 Nos. 10-2875 & 10-3049

We apply a deferential standard of review to NLRB

rulings. Our inquiry is confined to asking whether the

Board’s factual findings are supported by substantial

evidence, and whether its legal conclusions have “a

reasonable basis in law.” Local 65-B v. N.L.R.B., 572 F.3d

342, 347 (7th Cir. 2009). Moreover, “[w]here, as here,

the Board adopted the ALJ’s findings of fact and con-

clusions of law, it is the ALJ’s determinations that we

review.” Sheehy Enterprizes, Inc. v. N.L.R.B., 602 F.3d 839,

843-44 (7th Cir. 2010) (citing FedEx Freight E., Inc. v.

N.L.R.B., 431 F.3d 1019, 1026 (7th Cir. 2005)), reh’g granted,

Nos. 09-1383 & 09-1656, 2010 WL 4069368 (7th Cir.

July 21, 2010). We will not upset the ALJ’s credibility

determinations absent “extraordinary circumstances.”

Id. at 843.

1. Spurlino’s Deviation from the Seniority System

Substantial evidence supports the Board’s conclusion

that Spurlino violated NLRA §§ 8(a)(1) and 8(a)(3) by

deviating from its regular seniority system in dispatching

drivers to the stadium project.

Under § 8(a)(1), it is an unfair labor practice for an

employer to “interfere with, restrain, or coerce employees”

in connection with their right to organize.5 Generally,

§ 8(a)(1) is violated by an action having “a reasonable

tendency to interfere with or coerce employees in the

exercise of their protected rights.” N.L.R.B. v. Gerig’s

5

The employee right to unionize is set forth in NLRA § 7.

Nos. 10-2875 & 10-3049 11

Dump Trucking, Inc., 137 F.3d 936, 940 (7th Cir. 1998)

(citation omitted). Under § 8(a)(3), an employer may not

discourage unionization “by discrimination in regard to

hire or tenure . . . or any term or condition of employ-

ment.” To establish a violation of § 8(a)(3), the com-

plaining party ordinarily must show that the employer

acted with intent to discourage union activity. See Canteen

Corp. v. N.L.R.B., 103 F.3d 1355, 1365 (7th Cir. 1997).

Circumstantial evidence may be used to demonstrate

intent. See N.L.R.B. v. Shelby Memorial Hosp. Ass’n, 1 F.3d

550, 568 (7th Cir. 1993). In particular, statements

indicating hostility toward pro-union employees in a

relevant context may serve as evidence of an anti-union

motive. See N.L.R.B. v. Dorothy Shamrock Coal Co., 833

F.2d 1263, 1267 (7th Cir. 1987).

The Board relied on evidence sufficient to show an anti-

union motive for purposes of § 8(a)(3): the ALJ con-

cluded that at all times relevant to this appeal, the com-

pany had knowledge that Bales, Eversole and Stevenson

were active Union supporters. And General Manager

Matney’s multiple anti-union statements demonstrated

an atmosphere of hostility toward the Union. The Board

further adopted the ALJ’s observation that witness testi-

mony corroborates the departure from seniority and

pointed to dispatch ticket records documenting a

disparity in seniority-based assignments.

Changing the dispatch order to disfavor union

adherents had a “reasonable tendency to interfere” with

labor organization under § 8(a)(1), in that it subjected

12 Nos. 10-2875 & 10-3049

union sympathizers to economic pressure.6 It also dis-

criminated against union adherents with respect to com-

pensation, a term or condition of employment, thereby

violating § 8(a)(3).7

Spurlino contends that the stadium PLA, to which the

Union was a signatory, explicitly takes precedence over

6

We emphasize that we affirm the finding of an unfair labor

practice only to the extent indicated by the facts described by

the ALJ. The Board reversed the ALJ’s finding in favor of

Spurlino because the ALJ improperly supplied a “new truck”

defense for the company. But the Board did not question the

ALJ’s description of the extent of the departure from seniority,

which was less than egregious: Three selected drivers were

dispatched ahead of the Union adherents over a period of

several months, with the greatest irregularity apparently

concentrated around February and March of 2006.

7

In so holding, we are not deterred by Spurlino’s argument,

made in a footnote of its brief, that the three dispatchers at

the Kentucky Avenue facility controlled the order of dispatch,

and that they did not possess anti-union animus for § 8(a)(3)

purposes. The ALJ found that the General Counsel had

met his initial burden of showing unlawful discrimination

against Bales, Eversole and Stevenson with respect to the dis-

patch order, including by showing an anti-union atmosphere

at the Kentucky Avenue facility. The fact that unlawful dis-

crimination may have passed through neutral intermediaries

does not necessarily exonerate it. Cf. Boston Mut. Life Ins. Co.

v. N.L.R.B., 692 F.2d 169, 171 (1st Cir. 1982) (expressing reluc-

tance “to adopt a rule that would permit the company to

launder the ‘bad’ motives of certain of its supervisors by

forwarding a dispassionate report to a neutral superior.”).

Nos. 10-2875 & 10-3049 13

conflicting provisions of other labor agreements, and

explicitly provides that there was no obligation to

observe employee seniority at the stadium project. But

this argument is unavailing here. Assuming for the mo-

ment that the stadium PLA exclusively governed the

company’s dispatches from the Kentucky Avenue center

to the stadium (an uncertain assumption for reasons

discussed infra), the problem is not simply a depar-

ture from the otherwise regular seniority order but

the manipulation of the dispatch order specifically as a

device to penalize union supporters. Even if the PLA

would have authorized Spurlino to dispatch its truckers

randomly or alphabetically by last name, it cannot be

read to legitimate the unfair labor practices forbidden by

§ 8(a).

2. Creation of Portable Plant Driver and

Alternate Driver Positions

Substantial evidence supports the Board’s conclusion

that Spurlino violated NLRA §§ 8(a)(1) and 8(a)(5) in

creating the portable plant driver and alternate driver

positions.

Under § 8(a)(5), an employer may not “refuse to

bargain collectively with the representatives of his em-

ployees.” This obligation on the part of the employer

arises on the date the union is validly elected. See

Livingston Pipe & Tube, Inc. v. N.L.R.B., 987 F.2d 422, 428

(7th Cir. 1993). Mandatory subjects over which the em-

ployer must bargain are set forth in § 8(d), and include

“wages, hours, and other terms and conditions of em-

14 Nos. 10-2875 & 10-3049

ployment.” However, “[w]hen a legally cognizable

impasse occurs the employer is free to implement

changes in employment terms unilaterally . . . .” Beverly

Farm Found., Inc. v. N.L.R.B., 144 F.3d 1048, 1052 (7th

Cir. 1998) (citation omitted). Typically, a violation of

§ 8(a)(5) will also amount to a violation of § 8(a)(1),

since a refusal to bargain will also interfere with the em-

ployees’ collective bargaining rights. See, e.g., Naperville

Ready Mix v. N.L.R.B., 242 F.3d 744, 755 (7th Cir. 2001).

The Board accepted the ALJ’s finding that the portable

plant positions were new positions because they

involved different pay and benefits, and that their

creation affected the wages, hours and other terms and

conditions of bargaining unit employees. Therefore, the

portable plant positions were the subject of mandatory

bargaining under § 8(a)(5).8

Spurlino again points to the PLA, arguing that it liber-

ated the company from any obligation to follow seniority

or to bargain with the Union when staffing the stadium

8

In any event, we agree with the Board’s observation that

even if the portable plant assignments were mere “transfers” of

unit employees, transfers are ordinarily the subject of manda-

tory bargaining as well. See N.L.R.B. v. A-1 King Size Sand-

wiches, Inc., 732 F.2d 872, 877 (11th Cir. 1984) (listing mandatory

subjects of bargaining); Cooper Thermometer Co. v. N.L.R.B.,

376 F.2d 684, 687-88 (2d Cir. 1967) (employer required to

bargain over terms of employee transfers when plant opera-

tions are relocated); Industria Lechera De P.R., Inc., 344 N.L.R.B.

1075, 1081 (2005) (concerning a single employee’s transfer

from night to day shift).

Nos. 10-2875 & 10-3049 15

project, including the temporary portable plant (which,

again, was established to service the stadium project).

This conclusion, according to Spurlino, follows because

the PLA removed the affected employees from the Ken-

tucky Avenue bargaining unit and placed them in a

stadium project-specific bargaining unit, to which only

the terms of the PLA applied. For this proposition, the

company refers us to the entire 37-page PLA as well as

the entire Construction Agreement, which is a bit shorter.

First, contrary to Spurlino’s argument, we see nothing

in the PLA or Construction Agreement that expressly

establishes an independent bargaining unit the rules of

which prevail over existing collective bargaining agree-

ments.9 Indeed, the PLA leaves most aspects of em-

ployer-employee relations to the appropriate existing

collective bargaining agreement. Second and more sig-

nificant, we see nothing in the PLA that purports to

eliminate a signatory employer’s obligation to bargain

with its unit employees over changed terms and condi-

tions of employment. Indeed, § 18.4 of the PLA belies

Spurlino’s argument that the Union signed away its

entitlement to bargaining:

The parties agree that this Agreement . . . is intended

to cover all matters about which the Parties have

9

Moreover, the ALJ’s factual discussion suggests that the

portable plant truckers were not separated de facto from the

Kentucky Avenue bargaining unit. In particular, they did not

work exclusively at the stadium project, nor was their

portable plant assignment permanent.

16 Nos. 10-2875 & 10-3049

desired to negotiate . . . and that . . . neither the Em-

ployers . . . nor Unions will be required to negotiate

on any further matters affecting these or any

other subjects not specifically set forth in this Agree-

ment . . . . This section is not intended to relieve any

Employer of any collective bargaining obligations imposed

by federal or state law.

(Emphasis added.) Finally, as the ALJ noted, Spurlino

refused to arbitrate the Union’s grievance under the

procedures established in Article 14 of the PLA. The

company thereby denied itself its best opportunity to

urge its expansive interpretation of the PLA.

In short, the Board was supported by substantial evi-

dence in rejecting Spurlino’s strained PLA-based argu-

ment, in concluding that the portable plant drivers re-

mained within the Kentucky Avenue bargaining unit

and in holding Spurlino to its obligation to bargain

with the Union over the terms and conditions of employ-

ment.10

We further agree with the Board that Spurlino violated

§§ 8(a)(1) and 8(a)(5) in unilaterally implementing em-

ployee evaluations to allocate the portable plant driver

positions. Establishing a new system of employee evalu-

10

Spurlino also makes a cursory attempt to resurrect the

failed factual argument that it bargained to impasse with the

Union, but this argument fails.

Nos. 10-2875 & 10-3049 17

ations is ordinarily 1 1 the subject of mandatory bargaining.

See Safeway Stores, 270 N.L.R.B. 193, 195 (1984). Despite

Spurlino’s argument to the contrary, the ALJ con-

cluded, and the Board agreed, that the company did not

bargain with the Union before implementing a new

driving test. Spurlino does not cast doubt on this conclu-

sion by simply reciting its contrary account of the facts.

3. Exclusion of Union Supporters from Portable Plant

Driver Positions

The Board was supported by substantial evidence in

concluding that by excluding Bales, Eversole and

Stevenson as portable plant drivers,1 2 the company

violated NLRA §§ 8(a)(1) and 8(a)(3).

As noted, the ALJ credited testimony tending to

show that the company purposely avoided placing

Bales, Eversole and Stevenson in the portable plant posi-

tions. The Board adopted the ALJ’s factual conclusions

11

An exception to this principle exists for evaluation pro-

cedures that simply effectuate a “long-existing policy re-

specting a term of employment . . . .” N. Kingstown Nursing

Care Ctr., 244 N.L.R.B. 54, 66 (1979). Spurlino has made no

argument that this carve-out applies here.

12

The Board expressly declined to pass on the ALJ’s conclusion

that Spurlino had discriminated against Bales, Eversole and

Stevenson by failing to make them alternate portable plant

drivers, noting that this conclusion would not give rise to

any additional relief. We likewise do not consider the question.

18 Nos. 10-2875 & 10-3049

unmodified. Specifically, the ALJ found that Bales,

Eversole and Stevenson all indicated their interest in the

portable plant position as did at least ten others. Of the

entire group, only Bales and Eversole submitted the

written, signed notification of interest that the company

had requested. Nevertheless, the company selected four

other, newer employees. Jeff Davidson, the company

operations manager who made the assignment decisions,

testified inconsistently as to the process and criteria

used to select for the position. For instance, he stated

that rear-discharge truck experience was one criterion,

but two of the four drivers selected had absolutely

no experience with this type of truck. He stated that

performance, including attitude, was a criterion, but two

of the drivers selected had performance reviews in-

dicating a poor attitude. He stated that a driving test

was an important criterion, but one of the drivers

selected refused to take the test, and one performed

incompetently. Bales and Eversole were not allowed to

take the test, and Stevenson performed well. In sum, the

ALJ found Davidson’s testimony in defense of the com-

pany to have been “laced with inconsistencies, contra-

dicted by driver testimony, and unsupported by any

underlying documents or even specifics.”

These ALJ factual findings as to the pretextual nature

of Spurlino’s justifications, together with the evidence

of anti-union animus described above, amounted to sub-

stantial evidence for the Board to conclude that

Spurlino violated §§ 8(a)(1) and 8(a)(3) by excluding

Union adherents from a new and better-paid position.

Nos. 10-2875 & 10-3049 19

4. Gary Stevenson—The Weingarten Question

and Termination

The matter of Stevenson’s termination implicates his

Weingarten rights, a convention established in N.L.R.B. v.

J. Weingarten, Inc., 420 U.S. 251 (1975). In that case, the

Supreme Court held that an employer violates § 8(a)(1)

by denying an employee union representation upon

request during an interview that the employee rea-

sonably believes may lead to disciplinary action. Id. at 256-

57; see also Rock-Tenn Co. v. N.L.R.B., 69 F.3d 803, 808 n.2

(7th Cir. 1995).

Substantial evidence supports the Board’s ruling that

Spurlino violated Stevenson’s Weingarten rights in con-

nection with Stevenson’s refusal to return certain errant

paperwork. The ALJ found, and the Board accepted, that

Stevenson’s interview by manager Jeff Davidson was

“investigatory” and that Stevenson had an objectively

reasonable belief he might be subjected to punishment.

The ALJ further credited Stevenson’s testimony that he

had asked to contact a union representative during the

interview with Davidson, but his request was denied.

This is sufficient to establish a violation of Weingarten.

See N.L.R.B. v. Illinois Bell Tel. Co., 674 F.2d 618, 622 (7th

Cir. 1982).

The Board was also supported by substantial evidence

in concluding that Spurlino violated §§ 8(a)(1) and 8(a)(3)

by suspending and terminating Stevenson. The ALJ

concluded, and the Board accepted the conclusion, that

Stevenson was terminated because of his support for

the Union. The ALJ disbelieved the justification Spurlino

20 Nos. 10-2875 & 10-3049

offered below and now on appeal: Stevenson was termi-

nated for refusing to cooperate with the company’s

efforts to mitigate the unintended publication of em-

ployee social security numbers. The ALJ also noted that

the company witnesses were evasive as to who made

the decisions to suspend and terminate Stevenson, and that

this evasiveness further indicated to the ALJ that their

justifications were pretextual. Retaliating against a pro-

union employee by firing the employee violates § 8(a)(3)

and § 8(a)(1). See FedEx Freight E., Inc. v. N.L.R.B., 431

F.3d 1019, 1025 (7th Cir. 2005) (citing Vulcan Basement

Waterproofing of Ill., Inc. v. N.L.R.B., 219 F.3d 677, 684 (7th

Cir. 2000)).

Here in particular, we rely on our deferential standard

of review. The Board might well have come to a dif-

ferent conclusion, since Stevenson admittedly obstructed

management’s efforts to correct what appears to have

been an honest mistake, including by lying to a superior

about discarding his paperwork. One member of the

Board, in fact, noted a similar caveat about his reliance

on the ALJ’s factual findings. The ALJ himself acknowl-

edged that Stevenson behaved “imprudently [and] per-

haps childishly,” but nevertheless concluded Stevenson’s

union support was the cause of his termination.

We, like the Board, properly rely on the ALJ’s firsthand

consideration of the evidence. See Slusher v. N.L.R.B., 432

F.3d 715, 727 (7th Cir. 2005) (“ ‘[O]n matters which

the [ALJ], having heard the evidence and seen the wit-

nesses, is best qualified to decide, the agency should be

reluctant to disturb his findings unless error is clearly

Nos. 10-2875 & 10-3049 21

shown.’ ”) (quoting Universal Camera v. N.L.R.B., 340

U.S. 474, 494 (1951)). The ALJ’s discussions of the credi-

bility of witnesses and of the company’s motive in firing

Stevenson were extremely thorough and well-reasoned,

and together are sufficient support for the Board’s con-

clusion that the company violated §§ 8(a)(1) and 8(a)(3)

by firing Stevenson because of his allegiance to the Union.

5. Use of Non-Unit Labor for Warehouse Project Work

Substantial evidence supports the NLRB’s holding that

Spurlino violated NLRA §§ 8(a)(1) and 8(a)(5) by assigning

warehouse project work to individuals outside the Ken-

tucky Avenue bargaining unit.

Ordinarily, “the ‘contracting out’ of . . . work previously

performed by members of an existing bargaining unit is

a subject about which the [NLRA] requires employers

and the representatives of their employees to bargain

collectively.” Fibreboard Paper Prods. Corp. v. N.L.R.B., 379

U.S. 203, 209 (1964); see also N.L.R.B. v. Joy Recovery Tech.

Corp., 134 F.3d 1307, 1315 (7th Cir. 1998).

The ALJ found, and the Board agreed, that Spurlino

never offered to bargain over the use of subcontractors.

The ALJ further discredited Spurlino’s contention that

it had a past practice of using non-unit employees

from Ohio, and because of Spurlino’s non-production of

records, concluded that the company’s use of non-unit

labor for the warehouse project was a change of its busi-

ness practice. The ALJ believed that this use of subcon-

tractors and non-unit employees, although it did not

22 Nos. 10-2875 & 10-3049

result in bargaining unit job losses, stood to affect the

terms and conditions of unit employees because they

might have enjoyed overtime pay as a result of the

project, or alternatively, the project might have resulted

in the hiring of additional unit employees. This reasoning

was consistent with prior Board precedent in Acme Die

Casting, 315 N.L.R.B. 202, 207 n.1 (1994). See also Sociedad

Espanola de Auxilio Mutuo y Beneficiencia de P.R. v. N.L.R.B.,

414 F.3d 158, 166-67 (1st Cir. 2005).

On appeal, Spurlino does not challenge these conclu-

sions, but argues that it was faced with a “sudden

business need” to subcontract and asserts that the ALJ

recognized this. This is a strained, selective reading of the

ALJ’s memorandum. The ALJ stated that Spurlino “has

never contended the existence of a financial emergency

or shown that the use of subcontractors . . . was based

on compelling economic reasons,” and that Spurlino

“would be hard pressed to make such an argument.” Two

members of the Board also noted that the company

had failed to raise the matter of “economic exigency”

before the ALJ, and thus it was waived.

The Board properly adopted the reasoning of the ALJ

to conclude that Spurlino engaged in unfair labor

practices.13 It is uncontested that Spurlino changed its

practice by hiring subcontractors and used non-unit

13

Once again, the company argues that it provided the Union

an opportunity to bargain, but again, the ALJ rejected this

factual contention outright, and the company has not shown

any reason to doubt the ALJ’s conclusion.

Nos. 10-2875 & 10-3049 23

employees from its Ohio division for the warehouse

project instead of using its Indiana bargaining unit em-

ployees. This unilateral decision offended § 8(a)(5) and

interfered with the right to organize under § 8(a)(1). See

Citizens Publ’g & Printing Co. v. N.L.R.B., 263 F.3d 224,

233 (3d Cir. 2001).

For the foregoing reasons, we D ENY Spurlino’s

cross-petition for review and G RANT the NLRB’s appli-

cation for enforcement in its entirety.

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