Lineback, Rik v. Spurlino Materials

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3925

R IK L INEBACK, Regional Director of

the Twenty-Fifth Region of the National

Labor Relations Board, for and on

behalf of the N ATIONAL L ABOR

R ELATIONS B OARD ,

Petitioner-Appellee,

v.

S PURLINO M ATERIALS, LLC,

Respondent-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 07 C 599—David F. Hamilton, Chief Judge.

A RGUED JUNE 6, 2008—D ECIDED O CTOBER 8, 2008

Before B AUER, R IPPLE and M ANION, Circuit Judges.

R IPPLE, Circuit Judge. The Coal, Ice, Building Material,

Supply Drivers, Riggers, Heavy Haulers, Warehousemen

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

2 No. 07-3925

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 prelimi-

nary 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.

I

BACKGROUND

A. Facts

Spurlino, a full-service construction materials supplier,

produces and sells ready-mix concrete. In November 2005,

Spurlino 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

1

Stevenson is no longer employed by the company. The

General Counsel alleged, and the ALJ subsequently found, that

(continued...)

No. 07-3925 3

Union. The Union petitioned the Board for a union repre-

sentation 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 individu-

ally 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 em-

ployees 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 Spurlino’s Indianapo-

lis plants voted in a secret ballot election conducted by the

NLRB. Despite the efforts of the company to persuade

1

(...continued)

Stevenson’s discharge was in violation of the labor laws;

however, these allegations were not included in the Director’s

petition for injunctive relief. Therefore, we do not consider

them here.

4 No. 07-3925

them otherwise, a majority of the employees voted to be

represented by the Union. Soon thereafter, Matney alleg-

edly 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. Matney 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

Spurlino 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 negotia-

tions, consistent with its earlier threats.

Meanwhile, attendance at Union meetings by Spurlino

employees has declined significantly, from 12-15 employ-

ees 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

2

There are approximately 35 employees in the bargaining unit.

Approximately 15 of these employees are drivers who work

from Spurlino’s Kentucky Avenue facility. Eversole, Stevenson

and Bales served as the Union’s employee bargaining com-

mittee members.

No. 07-3925 5

progress on a contract have caused this decline in atten-

dance.

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 Spurlino 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 Ken-

tucky 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 construc-

tion 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

6 No. 07-3925

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 pro-

ject. 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 deliver-

ing 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. Neverthe-

less, Spurlino also maintained the position that the

PLA governing the stadium project itself required that

No. 07-3925 7

seniority would play no role for purposes of the project.3

According to the Union, Spurlino allegedly manipulated

its dispatches to the stadium project in an effort to

punish Union leaders Eversole, Stevenson and Bales for

their Union activities. Specifically, the Director alleged that

Spurlino disregarded its usual “first-back, first-out” policy

and dispatched other drivers to the stadium project out

of order so that Eversole, Stevenson and Bales would not

receive these valuable assignments. Spurlino, on the

other hand, denies that it manipulated the dispatching

during this time period.

As the stadium project began to require greater volumes

of concrete, Spurlino decided to build a temporary and

3

The PLA stated:

2.3. . . . This Agreement (including the applicable bargaining

agreements listed in Attachment C, and successor agree-

ments thereto) represents the complete understanding of

the Parties with respect to the issues covered hereunder. The

provisions of this Agreement shall control the construction

of this Project and take precedence over and supersede

provisions of all the Unions’ collective bargaining agree-

ments, national, area, or local, which conflict with the terms

of this Agreement. However, the national, area, and local

collective bargaining agreements will govern all issues not

addressed in this Agreement.

....

3.12. Individual seniority will not be recognized or applied

to employees working on this Project.

R.19, Joint Ex. 4 at 12.

8 No. 07-3925

portable concrete plant on the stadium property. The

portable plant was dedicated to providing concrete for

the stadium project only, and it operated only on days

that the stadium project had large daily demands for

concrete. Again, because the drivers providing services for

the stadium project received higher wages and benefits

under the PLA, the portable plant was a highly desirable

work assignment. Accordingly, the method of selecting

employees who would work at that plant was important

to the employees, and the Union requested that the porta-

ble plant drivers be selected by seniority. Spurlino

declined to do so, citing the PLA.

Spurlino initially sought volunteers from the Kentucky

Avenue plant to work at the portable plant. Spurlino

managers informed the drivers that, if there were more

volunteers than positions available, then selection would

be based on the drivers’ skills, qualifications and past

performance. These considerations included performance

on a driver test, attendance records, timeliness, truck

cleanliness and overall attitude. Unlike Spurlino’s usual

practice, seniority would be used only to distinguish

between two otherwise equally qualified candidates.

Spurlino also allegedly informed the drivers that anyone

assigned to the portable plant would lose his seniority

at the Kentucky Avenue plant, even when the portable

plant was not in operation and he returned to the

Kentucky Avenue plant.

Despite the significant wage increase and benefits for

those drivers assigned to the portable plant, Bales did not

volunteer for one of these positions. He stated that he

No. 07-3925 9

declined to seek a position there because the employees

were told that they would lose their seniority at the

Kentucky Avenue facility if they transferred to the

portable plant. Eversole testified that he applied for a

portable plant position, but that Spurlino filled the

position without acknowledging his application.

Stevenson applied for one of the positions at the portable

plant. He, like the other volunteering drivers, was asked to

take a driving test on a rear-loading truck—the type

of truck that Spurlino wished to use at the portable

plant—to assist Spurlino in determining who had the

necessary skills, qualifications and past performance to

work at the portable plant. Terry Mooney refused to take

the driving test and had no prior experience driving

rear-loading trucks. Eric Kiefer also had no experience

with rear-loading trucks, and, during the driving test, he

broke the brakes on the truck. Stevenson, on the other

hand, performed well on the driving test and was high on

the seniority list.

On June 7, 2006, Spurlino announced that the portable

plant drivers would be Mooney, Kiefer and two other

employees, Thomerson and Penatello, who had worked

for Spurlino less than two months before they were

selected as portable plant drivers. Despite Stevenson’s

seniority and his high score on the driving test, Spurlino

did not assign him to the portable plant. According to

Spurlino, the four selected drivers had better overall

performance scores than the other drivers who had ap-

plied, referring to a thirteen-factor performance review

card completed by the company during the selection

process.

10 No. 07-3925

Soon thereafter, one of the original portable plant drivers

resigned from the company. Spurlino asked both Eversole

and Bales if they wished to replace him as a driver at the

portable plant. Both testified that they declined the posi-

tion when Spurlino’s management again told them that

they would lose their seniority status on the Kentucky

Avenue call list upon their return.

Around this time, Spurlino allegedly decided to create

a new position of “alternate/backup” driver at the portable

plant; however, it did not post this position or inform

the Union. Instead, it approached drivers individually

for the position and informed them that these alter-

nate/backup drivers would be allowed to keep their

places on the Kentucky Avenue call list because they

were merely alternates. Spurlino selected three drivers to

be alternate/backup drivers. One of these drivers had

been employed at Spurlino less than two months before

being given the job at the portable plant. Spurlino never

offered Union leaders Eversole and Bales the alternate/

backup driver position, allegedly because they already had

declined an offer to work at the portable plant.

The portable plant remained in operation from June 2006

until February 2007. Once demand for high daily volumes

of concrete dwindled at the stadium, however, Spurlino

closed the portable plant. Despite its initial proclamations

otherwise, after Spurlino closed the portable plant, it

reassigned the portable plant drivers to the Kentucky

Avenue facility and fully restored their previous seniority

there. The Director alleges that the company initially

misinformed the drivers that they would lose their senior-

ity so that the Union leaders, who were all high on the

No. 07-3925 11

seniority list, would be discouraged from applying for a

portable plant position.

B. Administrative and District Court Proceedings

In August 2006, the Union filed a series of charges

against Spurlino, alleging unfair labor practices. These

charges were consolidated by the General Counsel into a

formal NLRB complaint. The complaint included allega-

tions that the company had: (1) unlawfully discriminated

against Eversole, Bales and Stevenson because of their

union activities; (2) changed pre-existing policies of

assigning work based on seniority without bargaining

with the Union; and (3) unilaterally implemented an

evaluation procedure for purposes of assigning certain

work without bargaining with the Union.

The Board’s ALJ conducted a hearing on these charges

from April 24, 2007 to April 27, 2007, and then it declared

a recess until July 10, 2007. On May 11, 2007, the Board’s

Regional Director filed a section 10(j) petition in the

district court, requesting injunctive relief pending the

final decision of the Board. The ALJ then decided to

accelerate the conclusion of the administrative hearing,

and it heard evidence on May 30 and 31, 2007. Accordingly,

the Regional Director requested that the hearing on the

preliminary injunction in the district court be postponed

until June so that the district court could consider the

findings of the ALJ.

The district court conducted a hearing on June 22, 2007,

to hear evidence on the need for injunctive relief beyond

that presented at the administrative hearing. On November

12 No. 07-3925

8, 2007, the district court concluded that the testimony,

arguments and briefs presented in the district court, as

well as the record in the administrative proceeding,

weighed in favor of granting injunctive relief. Specifically,

the court noted that:

[T]he Director has shown a sufficient likelihood that

Spurlino engaged in at least several of the charged

unfair labor practices in violation of federal labor law.

The Director has introduced substantial evidence that

the company acted intentionally to punish publically

the principal union organizers for their activities and

to modify terms and conditions of employment unilat-

erally. The effect and intent have been to show all

employees in the bargaining unit that the newly-

elected union could not deliver any improvement

in wages and working conditions.

R.30 at 2.

The district court further concluded that preliminary

injunctive relief under section 10(j) was “ ‘just and proper’

because the company’s actions have had substantial effects

in discouraging union activity and demoralizing the

unionized employees.” Id. at 3. Accordingly, on November

8, 2007, the court entered an order enjoining Spurlino from:

(1) retaliating, through discriminatory job assignments

or otherwise, against leaders and members of the

[Union], based upon those persons’ union membership,

support, activity, or affiliation;

(2) acting unilaterally to change terms and conditions

of employment for those Spurlino Materials employees

in the bargaining unit represented by the union;

No. 07-3925 13

(3) failing and refusing to bargain in good faith with

the union over a collective bargaining agreement; and

(4) in any like manner interfering with, restraining, or

coercing employees’ exercise of their rights under

Section 7 of the National Labor Relations Act, 29 U.S.C.

§ 157, pending final resolution of the unfair labor

practice charges now pending against Spurlino Materi-

als, LLC based on activity in the company’s

Indianapolis-area facilities.

R.31 at 1-2. On December 4, 2007, Spurlino timely ap-

pealed.

On December 17, 2007, the ALJ issued a decision in the

underlying case. He concluded that Spurlino had violated

section 8(a)(3) by discriminating against Eversole, Bales

and Stevenson in job assignments at the portable plant.

He also found that Spurlino had violated section 8(a)(5)

because it unilaterally established unit positions, and the

selection criteria used to staff them, without bargaining

with the Union. An appeal of this decision currently is

pending before the NLRB.

II

DISCUSSION

A. The Decision to Grant Injunctive Relief

Section 10(j) of the National Labor Relations Act

(“NLRA”) authorizes a district court to order injunctive

relief pending the NLRB’s final disposition of an unfair

labor practices claim if such relief would be “just and

14 No. 07-3925

proper.” 29 U.S.C. § 160(j). The court looks to the same

factors to which it looks in other contexts when deciding

whether to grant injunctive relief: “the lack of an adequate

remedy at law, the balance of potential harms posed by

the denial or grant of interim relief, the public interest,

and the petitioner’s likelihood of success on the merits of

its complaint.” Bloedorn v. Francisco Foods, Inc., 276 F.3d 270,

286 (7th Cir. 2001) (citing Kinney v. Pioneer Press, 881 F.2d

485, 490 & n.3, 493 (7th Cir. 1989)); see also NLRB v. Elec-

tro-Voice, Inc., 83 F.3d 1559, 1566 (7th Cir. 1996), cert. denied,

519 U.S. 1055 (1997). The Regional Director is entitled

to interim relief when:

(1) the Director has no adequate remedy at law;

(2) the labor effort would face irreparable harm with-

out interim relief, and the prospect of that harm

outweighs any harm posed to the employer by the

proposed injunction;

(3) “public harm” would occur in the absence of

interim relief;

(4) the Director has a reasonable likelihood of prevail-

ing on the merits of his complaint.

Bloedorn, 276 F.3d at 286. The Director bears the burden of

establishing the first, third and fourth of these circum-

stances by a preponderance of the evidence. Id. The

second prong is evaluated on a sliding scale: The better

the Director’s case on the merits, the less its burden to

prove that the harm in delay would be irreparable, and

vice versa. Id. at 286-87.

We review the district court’s decision to grant interim

injunctive relief under section 10(j) for an abuse of discre-

No. 07-3925 15

tion. Bloedorn, 276 F.3d at 286; Electro-Voice, 83 F.3d at

1566. We examine the district court’s decision only to

ensure that it does not “depend[] on faulty legal premises,

clearly erroneous factual findings, or improper applica-

tion of the criteria governing preliminary injunctive

relief.” Electro-Voice, 83 F.3d at 1566 (quoting Kinney, 881

F.2d at 493).

1. Adequate Remedies at Law

As we noted in Bloedorn, “[s]ection 10(j) relief is an

extraordinary remedy . . . reserved for ‘those situations in

which the effective enforcement of the NLRA is threatened

by the delays inherent in the NLRB dispute resolution

process.’ ” 276 F.3d at 297 (quoting Szabo v. P*I*E Nation-

wide, Inc., 878 F.2d 207, 209 (7th Cir. 1989)). We first

consider whether the district court clearly erred when it

determined that the rights of the employees under the

NLRA would suffer irreparable harm from the passage

of time between the filing of charges and the resolution of

the complaint by the NLRB. Id.; see also Roland Mach. Co. v.

Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (“Only

if [the employees] will suffer irreparable harm in the

interim—that is, harm that cannot be prevented or fully

rectified by the final judgment after trial—can [they] get

a preliminary injunction.”).

The process of NLRB resolution has long been recognized

as extraordinarily slow—indeed, the purpose of section

10(j) was to prevent employers from taking advantage

of this significant passage of time in their efforts to quash

16 No. 07-3925

union support in the interim. See NLRB v. P*I*E Nationwide,

Inc., 894 F.2d 887, 891 (7th Cir. 1990); Szabo, 878 F.2d at 209-

10; Kinney, 881 F.2d at 493-94. The longer that an

employer is able to chill union participation or avoid

bargaining with a union, the less likely it is that the union

will be able to organize and to represent employees

effectively once the NLRB issues its final order. See

Bloedorn, 276 F.3d at 299; see also Electro-Voice, 83 F.3d at

1573; Schaub v. W. Mich. Plumbing & Heating, Inc., 250 F.3d

962, 971 (6th Cir. 2001) (noting the significant effects of

chill on the ability of a union to organize). This risk is

particularly true in cases involving fledgling unions, where

the passage of time is especially critical. See Arlook v. S.

Lichtenberg & Co., Inc., 952 F.2d 367, 373 (11th Cir. 1992).

Here, the district court, noting the precipitous decline

in Union participation, credited the testimony of many

Spurlino employees who stated that they were hesitant to

attend Union meetings because they feared discrimina-

tion. If Spurlino is allowed to proceed in its quest to defeat

the Union before it becomes established, the court found,

then merely requiring the company to pay its employees

damages after the fact will not remedy the adverse

impact to the Union and the employees in the interim

period.

Spurlino contends that immediate injunctive relief is

unnecessary in this case. In support, it notes that the

Regional Director filed a motion to postpone for a few

weeks the district court’s hearing on the preliminary

injunction, which, in Spurlino’s view, shows that the need

for injunctive relief is not urgent. See Schaub v. Detroit

No. 07-3925 17

Newspaper Agency, 154 F.3d 276, 280 (6th Cir. 1998) (holding

that the Director’s 18-month delay in filing a petition

for injunction showed that interim relief was unnecessary);

but see Gottfried v. Frankel, 818 F.2d 485, 495 (6th Cir. 1987)

(holding that delay is a factor that may be considered, but

it is not particularly probative; the question is whether

interim relief is necessary to restore the parties to the

status quo). Spurlino also contends that evidence in the

record shows that the Union is not in precipitous decline,

and it suggests that any reduction in attendance at Union

meetings is because the meetings are held on Friday

evenings, a popular time for other activities.

Spurlino’s arguments, however, show only that there

may be an alternative view of the evidence presented to

the district court; they do not establish that the district

court’s view of the evidence was clearly erroneous. After

a review of the record, we must conclude that the

district court did not clearly err when it found that an

award of damages in future years would be an inade-

quate remedy in this case.

2. Balance of Harms

For the same reasons that the district court concluded

that the Director has no adequate remedy at law, it also

concluded that the employees are likely to suffer sub-

stantial and irreparable harm if Spurlino is allowed to

continue its effort to subvert the Union until the case is

resolved by the NLRB. As we noted in Electro-Voice:

The deprivation to employees from the delay in bar-

gaining and the diminution of union support is im-

18 No. 07-3925

measurable. That loss, combined with the likelihood

that the Board’s ability to rectify the harm is diminish-

ing with time, equals a sufficient demonstration of

irreparable harm to the collective bargaining process.

83 F.3d at 1573.

Spurlino first contends that the Director cannot show a

likelihood of irreparable harm during the interim period

because the actions about which the employees complain

largely involved assignments to the portable plant, which

is no longer in operation. The district court disagreed,

however, and noted that Spurlino continues to make

daily decisions about other work assignments and the

terms and conditions of employment. The court concluded

that the Director had presented evidence of Spurlino’s

clear hostility toward the Union, as well as a pattern of

discrimination against employees active in the Union. It

found that there was a substantial risk that Spurlino would

continue its efforts to undermine the Union while the

dispute was pending before the NLRB, and that irreparable

harm was likely to result. After a review of the record, we

cannot say that the district court’s view of the evidence

was clearly erroneous.

Spurlino next contends that an injunction would present

a risk of substantial and irreparable harm to the company

because it would subject it to contempt proceedings upon

any further allegations of labor law violations. Although

an injunction certainly would restrict Spurlino’s ability to

engage in unfair labor practices, as well as perhaps

subject it to an increased risk of unwarranted contempt

proceedings, Spurlino does not explain why this potential

No. 07-3925 19

harm would be irreparable. Furthermore, even if the com-

pany were at risk of irreparable harm, Spurlino makes

no effort to weigh this risk against the risk of harm to the

Union.

Additionally, the strength of the Director’s case on the

merits affects a court’s assessment of the relative harms

posed by the grant or denial of injunctive relief: The

greater a party’s prospects of prevailing on the merits,

the less compelling a showing of irreparable harm is

required. Bloedorn, 276 F.3d at 286-87; Electro-Voice, 83 F.3d

at 1568. As we discuss below, the district court’s conclu-

sion that the Regional Director has a high likelihood of

success on the merits is supported by the record; accord-

ingly, he need not make an extremely strong showing of

irreparable harm in order to warrant granting interim

relief.

3. Public Interest

The district court concluded that granting preliminary

injunctive relief here was in the public interest. As we

noted in Electro-Voice, “[t]he public interest is furthered, in

part, by ensuring that an unfair labor practice will not

succeed because the Board takes too long to investigate

and adjudicate the charge.” 83 F.3d at 1574 (internal

quotation marks and citation omitted). Spurlino presented

no evidence of public harm to challenge the district court’s

decision. Accordingly, we conclude that the district court

correctly determined preliminary injunctive relief in this

case to be in the public interest.

20 No. 07-3925

4. Likelihood of Success on the Merits

We have held that, “in evaluating the likelihood of

success, it is not the district court’s responsibility, nor is it

ours, to rule on the merits of the Director’s complaint”;

deciding the merits of the case is the sole province of the

Board. Bloedorn, 276 F.3d at 287. Our inquiry is confined

to the likelihood that the Director will prevail before the

Board. Id. “For our purposes, we must decide whether the

Director has a better than negligible chance of success:

whether the Director has ‘some chance’ of succeeding on

the merits.” Electro-Voice, 83 F.3d at 1568. In evaluating

this likelihood, “given the Board’s expertise in matters

of labor relations, we must be ‘hospitable’ to the General

Counsel’s view of the law.” Bloedorn, 276 F.3d at 287

(citation omitted). We also must give some measure of

deference to the view of the ALJ, id. at 288,4 as well as our

traditional deference to the findings of the district court.

On this appeal, we are asked only to determine whether

the district court clearly erred when it concluded that

the Regional Director’s evidence was sufficient to

establish a “better than negligible” chance of success on

the merits. Electro-Voice, 83 F.3d at 1570.

4

The ALJ’s opinion certainly is relevant to the propriety of

section 10(j) relief. Evaluating the Director’s likelihood of

success calls for a predictive judgment about how the NLRB

is likely to rule. The ALJ is the NLRB’s first-level decisionmaker,

and, “[h]aving presided over the merits hearing, the ALJ’s

factual and legal determinations supply a useful benchmark

against which the Director’s prospects of success may be

weighed.” Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288

(7th Cir. 2001).

No. 07-3925 21

The district court considered the entire record, including

the testimony of Union supporters, employees either

neutral or against the Union and management. It con-

cluded that the Director had made a strong showing of a

likelihood of success on the merits on the retalia-

tion/discrimination charge. It also concluded that the

Director had made a strong showing of likelihood of

success on the merits of the charge that Spurlino made

unilateral changes in the terms and conditions of employ-

ment without bargaining over those issues. Finally, the

court concluded that the Director had made “at least a

substantial showing” that Spurlino had not been bargain-

ing in good faith. R.30 at 23.

Spurlino’s main contention is that the PLA that gov-

erned the stadium project superceded any obligations

that the company might have had to bargain with the

Union or to respect its employees’ seniority; the company

also contends that the PLA provided it with the right to

assign the stadium project work to whomever it pleased.

In support of its contention, Spurlino points to section 3.12

of the PLA, which states: “Individual seniority will not be

recognized or applied to employees working on the

Project.” R.19, Joint Ex. 4, at 12.

The district court, however, considered this argument

and concluded that “Spurlino’s position misinterprets the

PLA.” R.30 at 18. In the view of the district court, the PLA

provision barring individual seniority meant only that

there would be no effort to recognize seniority as

between employees of different employers working at the

stadium site. Such a provision was sensible, it noted,

22 No. 07-3925

considering that managing the large stadium project

likely would be nearly impossible if individual seniority

had to be recognized among different employers. The

court concluded that the many major unions whose

members worked on the stadium had not surrendered all

of their employees’ internal seniority rights by signing on

to the PLA. Id. It noted that other provisions of the agree-

ment specified that, unless there was a specific conflict

between the PLA and existing collective bargaining

agreements, the collective bargaining agreements would

remain in effect.

The ALJ took the same view as the district court. He also

concluded that, even if Spurlino had no obligation to

assign the most senior drivers to the portable plant, the

company’s treatment of the portable plant drivers’ overall

seniority still violated section 8(a)(5) because an em-

ployee’s work at the stadium project adversely affected

the terms and conditions of the rest of his employment

with the company (i.e., he was moved to the bottom of the

Kentucky Avenue seniority list). Accordingly, we cannot

say that the district court’s interpretation of the PLA

was unreasonable.

In sum, we conclude that the district court properly

considered the relevant factors when deciding whether

to issue a preliminary injunction. Spurlino failed to show

that the court relied upon an error of law or a clearly

erroneous interpretation of the evidence in the record.

Therefore, we hold that the district court did not abuse its

discretion when it granted the Director’s motion for

interim injunctive relief under section 10(j).

No. 07-3925 23

B. Scope of the Injunction

Although we review the decision to grant injunctive

relief for an abuse of discretion, “whether the terms of an

injunction fulfill the mandates of Rule 65(d) is a question

of law that we review without deference.” See Int’l Rectifier

Corp. v. Ixys Corp., 383 F.3d 1312, 1315 (Fed. Cir. 2004).

Federal Rule of Civil Procedure 65(d) requires that

injunctions be stated specifically and “describe in reason-

able detail—and not by referring to the complaint or other

document—the act or acts restrained or required.” Injunc-

tions that “merely instruct the enjoined party not to

violate a statute” generally are overbroad, increasing “the

likelihood of unwarranted contempt proceedings for

acts unlike or unrelated to those originally judged unlaw-

ful.” Ixys, 383 F.3d at 1315.

As the Supreme Court has explained:

A federal court has broad power to restrain acts which

are of the same type or class as unlawful acts which

the court has found to have been committed or whose

commission in the future unless enjoined, may fairly

be anticipated from the defendant’s conduct in the

past. But the mere fact that a court has found that a

defendant has committed an act in violation of a

statute does not justify an injunction broadly to obey

the statute and thus subject the defendant to con-

tempt proceedings if he shall at any time in the future

commit some new violation unlike and unrelated to

that with which he was originally charged.

....

24 No. 07-3925

To justify an order restraining other violations it must

appear that they bear some resemblance to that which

the employer has committed or that danger of their

commission in the future is to be anticipated from

the course of his conduct in the past.

NLRB v. Express Pub. Co., 312 U.S. 426, 435-37 (1941).

Spurlino objects to paragraph 1 of the injunction because

it bars retaliation against all members of the Union,

“through discriminatory job assignments or otherwise.” R.31

at 1. The complaint, it notes, merely alleged that Spurlino

had discriminated against Union leaders Eversole, Bales

and Stevenson—not all the other members of the Union.

Spurlino contends that the district court had no reason to

believe that it was likely to retaliate against others. It also

submits that the court’s use of “otherwise” is vague and

overbroad. Similarly, Spurlino objects to paragraph 2 of the

injunction because it enjoins all unilateral actions to

change the terms and conditions of employment, although

the only allegations of unilateral action in the complaint

involved the portable plant. Spurlino submits that there

is no evidence that the company has taken or will take

other unilateral actions, and the court’s prohibition

against all unilateral action therefore is overbroad.

In our view, the district court reasonably found a contin-

uous and deliberate effort on the part of Spurlino to

undermine the Union organization effort. Accordingly, it

concluded that there was a likelihood that the company

would act further to thwart the Union’s efforts; it also

found that Spurlino was likely to refuse to negotiate with

the Union on the terms and conditions of employment

No. 07-3925 25

in the future. Given these specific findings, supported by

evidence in the record, paragraphs 1 and 2 do not exceed

the scope of the court’s authority to enjoin similar actions

by the company. See Express, 312 U.S. at 435 (“A federal

court has broad power to restrain acts which are of the

same type or class as unlawful acts which the court has

found to have been committed or whose commission in

the future unless enjoined, may fairly be anticipated

from the defendant’s conduct in the past.”).

Spurlino also objects to paragraph 3 of the injunction on

the ground that it is overbroad. Although the Director’s

petition for an injunction included no allegations of a

general refusal to bargain, the district court found that

Spurlino had refused to bargain in good faith throughout

the eighteen months of contract negotiations with the

Union: Therefore, it enjoined the company from “failing

and refusing to bargain in good faith over a collective

bargaining agreement.” R.31 at 2. Spurlino contends that

the injunction against a general failure to bargain was

unwarranted because it was broader than the specific

charges in the complaint.

The cases upon which Spurlino relies are not controlling.

Spurlino invites our attention to Gottfried v. Frankel, 818

F.2d 485 (6th Cir. 1987), which vacated a part of an injunc-

tion that prohibited the employer from failing to bargain

because no failure-to-bargain section 8(a)(5) claim was

alleged. The court there emphasized, however, that the

parties had stipulated that this was not a “refusal to

bargain” case, and the district court had characterized all

of the allegations as violations of sections 8(a)(1) or (3), and

26 No. 07-3925

not section 8(a)(5). Id.; see also Gaddy v. Abex Corp., 884

F.2d 312, 318 (7th Cir. 1989) (holding that an injunction

against retaliation was improper because there never

was any allegation of retaliation by the defendants). Here,

on the other hand, the Director did allege a violation of

section 8(a)(5). See R.1 at 6. He also introduced evidence

that the company intentionally had been dragging out

negotiations and undermining Union support within the

company. The district court concluded from this evidence

that there had been a pattern of refusal to bargain on the

part of the company and that further refusals were likely:

Keeping in mind this court’s limited role, for present

purposes, the court finds that the weight of evidence

tends to favor the Board’s position on this question.

Eversole and Bales have no incentive to drag out the

bargaining. Spurlino’s conduct in making unilateral

changes without bargaining over them, and the sub-

stantial evidence of a broader campaign to undermine

the union by means both fair and foul, together per-

suade the court that Spurlino appears not to be bar-

gaining in good faith.

R.30 at 21. The district court determined that this element

of the injunction was necessary “to remedy the company’s

long strategy of delay and obstruction of the union’s

ability to represent its members effectively.” Id. at 28.

Therefore, its injunction against similar refusals to

bargain collectively was within its discretion. The Director

brought a claim regarding a specific instance of

Spurlino’s refusal to bargain, and the district court rea-

sonably determined that similar refusals were likely.

No. 07-3925 27

“[H]aving found in this case that respondent has refused

to bargain,” Express, 312 U.S. at 432, the district court acted

within its authority when it enjoined generally additional

refusals to bargain. See also id. at 435; NLRB v. Mayrath Co.,

319 F.2d 424, 428 (7th Cir. 1963).

Finally, Spurlino contends that paragraph 4 of the

injunction is overbroad because it enjoins the company

from “in any like manner interfering with, restraining, or

coercing employees’ exercise of their rights under Section

7 of the [NLRA].” R.31 at 2. Spurlino contends that this

generalized provision is strikingly similar to the order,

struck down by the Supreme Court in Express, which

enjoined the company from “in any manner interfering

with, restraining, or coercing its employees in the exercise

of their rights . . . as guaranteed in Section 7 of the Act.”

312 U.S. at 430.5

5

See also NLRB v. Ampex Corp., 442 F.2d 82, 86-87 (7th Cir. 1971)

(striking as overbroad an order that prevented the company

from acting “in any other manner” to violate the Act); NLRB v.

Elliott-Williams Co., 345 F.2d 460, 464-65 (7th Cir. 1965) (striking

down as overbroad a portion of an order that enjoined an

employer from “in any other manner” interfering with its

employees’ organizational and bargaining rights); NLRB v.

Thompson Ramo Woolridge, Inc., 305 F.2d 807, 810-11 (7th Cir.

1962) (refusing to enforce an order that prohibited violations

of the statute “in any other manner”); NLRB v. J.I. Case Co., 134

F.2d 70, 73 (7th Cir. 1943) (refusing to enforce an order restrain-

ing violations of the act “in any manner”); NLRB v. Stone, 125

F.2d 752, 757 (7th Cir. 1942) (similarly striking down an injunc-

tion prohibiting violations “in any other manner”).

28 No. 07-3925

The provision at issue in this case, at first blush, does

appear strikingly similar to the injunction found to be

overbroad in Express; nevertheless, there is one important

distinction. The order struck down in Express prohibited

the company from “in any manner” violating the Act,

312 U.S. at 430; the district court’s order in this case,

however, is conditioned by the words “in any like manner.”

R.31 at 2. Although the Supreme Court rejected broad

injunctions simply “to obey the statute,” it expressly

noted that, when an employer is found to have violated

the labor laws, district courts maintained broad authority

to restrain employers from committing “other related

unlawful acts.” Express, 312 U.S. at 435-36.

In NLRB v. Mutual Maintenance Service Co., Inc., 632 F.2d

33, 37 n.5 (7th Cir. 1980), we enforced an order of the

NLRB that prevented the employer from, “in any like

manner, interfering with, restraining or coercing its

employees in the exercise of the rights under Section 7 of

the Act.” Although we did not address specifically

whether this provision was overbroad, we did note with

approval the fact that the NLRB’s final order had substi-

tuted the “narrower language” of “in any like manner” for

the ALJ’s recommended “any other manner.” Id. (emphasis

added). Similarly, in Electromation, Inc. v. NLRB, 35 F.3d

1148, 1155 (7th Cir. 1994), we enforced an order with

almost identical language to the order in this case. There,

the Board’s order required the company to: “(1) cease

and desist from dominating, assisting, or otherwise

supporting the action committees and in any like manner

interfering with, restraining, or coercing employees in

No. 07-3925 29

the exercise of their Section 7 rights.” Id.; see also NLRB v.

H.P.&T. Inc., 947 F.2d 945 (6th Cir. 1991); NLRB v. Aquatech,

Inc., 926 F.2d 538, 539 (6th Cir. 1991) (enforcing similar

orders).

The injunction at issue here prohibits only those actions

similar to the violations already committed by Spurlino;

it does not encompass unrelated violations of the NLRA. It

is therefore supported by our case law. Accordingly, we

must hold that the injunction issued in this case is suffi-

ciently specific to survive scrutiny under Federal Rule

of Civil Procedure 65(d) and the standard set forth in

Express.

Conclusion

For the reasons explained in this opinion, we affirm

the judgment of the district court.

A FFIRMED

30 No. 07-3925

M ANION, Circuit Judge, concurring. I write separately

simply to reiterate that the third paragraph of the injunc-

tion does not enjoin any refusals to bargain, but, as the

court holds, supra at 26, only those refusals to bargain

that are similar to those alleged by the Director and found

by the district court. The Director alleged in its petition

that Spurlino created the positions of portable batch plant

driver and back-up portable batch plant driver without

giving prior notice to the Union and without affording

the Union an opportunity to bargain with Spurlino over

those positions. Pet. for Inj. 5-6. Notably, the Director

did not allege that Spurlino was engaging in overall bad-

faith bargaining. With that in mind, I join the court’s

opinion in full.

10-8-08