Spurlino Materials, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2015 Decided November 13, 2015

No. 12-1034

SPURLINO MATERIALS, LLC AND

SPURLINO MATERIALS OF INDIANAPOLIS, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

COAL, ICE, BUILDING MATERIAL, SUPPLY DRIVERS, RIGGERS,

HEAVY HAULERS, WAREHOUSEMEN AND HELPERS, LOCAL

UNION NO. 716,

INTERVENOR

Consolidated with 12-1123

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

A. Jack Finklea argued the cause for petitioner. With him

on the briefs was James H. Hanson. Timothy W. Wiseman

entered an appearance.

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Greg P. Lauro, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief were

John H. Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, and Julie B. Broido,

Supervisory Attorney.

Neil E. Gath was on the brief for intervenor Coal, Ice,

Building Material, Supply Drivers, Riggers, Heavy Haulers,

Warehousemen and Helpers, Local Union No. 716 in support of

respondent. William R. Groth entered an appearance.

Before: GARLAND, Chief Judge, and WILLIAMS and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: The petitioner’s employees

conducted a strike that they said was intended to protest the

company’s unlawful termination of and failure to reinstate a

prominent union supporter. At the same time, they honored a

clause in an agreement they had with the company not to strike

-- for any reason -- on one particular construction project. The

National Labor Relations Board (NLRB) found that the strike

was indeed aimed at unfair labor practices, and that the

employees were entitled to reinstatement when they offered to

return to work. It further found that the employees’ decision to

respect the specific no-strike clause did not convert the strike

into an unprotected partial strike.

In light of these findings, the NLRB concluded that the

company’s refusal to reinstate the striking workers was itself an

unfair labor practice, and it ordered the company to reinstate the

employees and to make them whole. The company has filed a

petition for review of the Board’s decision and order, and the

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Board has filed a cross-application for enforcement. We deny

the company’s petition and grant the Board’s cross-application.

I

Spurlino Materials (SM) and Spurlino Materials of

Indianapolis (SMI), collectively “Spurlino,” supply and deliver

concrete to construction sites. James Spurlino is the majority

owner, president, and designated manager of both SM and SMI.

Each has a principal office in Ohio. SM’s operating facility is

located in Middletown, Ohio. SMI operates in Indianapolis,

Indiana -- about two hours away.

In January 2006, Coal, Ice, Building Material, Supply

Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers,

Local Union No. 716, was certified as the exclusive bargaining

representative of SMI’s drivers and plant operators. Over the

following years, the union and SMI met a number of times in an

unsuccessful effort to negotiate a collective bargaining

agreement. Their last negotiating session, at which they again

failed to reach agreement, took place in August 2009.

During the relevant period, the only contract that covered

terms and conditions of employment for the unit employees was

a Project Labor Agreement (PLA) for a convention center

expansion project in downtown Indianapolis. Both SMI and the

union (among other employers and unions) were signatories.

The PLA applied only to work performed on that project.

Article 12 of the agreement contained a no-strike clause with

respect to work on the convention center project.

During this period, the union also filed a series of unfair

labor practice charges. Relevant here is the union’s charge that

SM violated section 8(a)(3) of the National Labor Relations Act

(NLRA), 29 U.S.C. § 158(a)(3), by discharging one of the

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union’s most prominent supporters, Gary Stevenson, in February

2007. In December 2007, an Administrative Law Judge (ALJ)

found that SM did unlawfully discharge Stevenson. In March

2009, a two-member National Labor Relations Board affirmed

that finding and ordered SM to reinstate Stevenson with

backpay. SM and the NLRB subsequently filed cross-

applications for review and enforcement of the Board’s decision

and order in the United States Court of Appeals for the Seventh

Circuit. In September 2009, at the direction of that court, the

parties entered into settlement discussions. Those discussions

failed and, in late March 2010, the parties began filing their

appellate briefs.1

Around that time, employees began to call the union’s

president, Jim Cahill, asking about the status of both the

Stevenson unfair labor practices litigation and the contract

negotiations with SMI. In response, Cahill called a meeting to

update the employees and take a vote on whether to engage in

an unfair labor practice strike. At the May 13, 2010 meeting,

the union’s attorney, Geoffrey Lohman, gave an update on the

status of the Seventh Circuit litigation, informed the employees

of the recent unsuccessful attempt to settle the case, and

predicted that it might be years before the litigation concluded.

1

In June 2010, the Supreme Court held, in New Process Steel,

L.P. v. NLRB, 130 S. Ct. 2635 (2010), that a two-member Board

lacked authority to issue decisions. In July 2010, the Seventh Circuit

remanded the Stevenson case back to the Board in light of New

Process Steel. The following month, a newly constituted

three-member NLRB panel reaffirmed the two-member Board’s

decision and order. The case then went back to the Seventh Circuit,

which upheld both the Board’s determination that Stevenson had been

unlawfully terminated and its order of reinstatement. Spurlino

Materials, LLC v. NLRB, 645 F.3d 870, 882-83 (7th Cir. 2011).

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Lohman also took questions. Some employees asked about

the Stevenson litigation and said that they should do something

to get the company to comply with the Board’s reinstatement

order. At least one employee asked a question related to the

status of the contract negotiations, prompting Lohman to

provide an update about those negotiations as well. When the

conversation turned to a strike, Lohman explained the difference

between an unfair labor practice strike and an economic strike,

advising the employees that SMI would be required to reinstate

them upon request if they engaged in the former, but not

necessarily if they engaged in the latter. Accordingly, he said,

the union recommended that, if there were to be a strike, it

should be over the company’s unfair labor practices. Following

Lohman’s presentation, the employees voted unanimously to

engage in an unfair labor practice strike.

Wishing to make the strike as effective as possible, the

union did not immediately call for the employees to strike. Ten

weeks later, however, after learning that SMI would start a “big

job” on August 3, Cahill decided that it was an opportune

moment. Spurlino Materials, LLC, 357 NLRB No. 126, at 4

(Dec. 6, 2011) (ALJ Op.). On the morning of August 3, he had

a strike letter delivered to SMI’s operations

supervisor/dispatcher. The letter stated that the employees

would be engaging in an unfair labor practice strike that would

continue “until Spurlino Materials remedie[d] the unfair labor

practice it committed in discharging Gary Stevenson,” including

giving Stevenson “an offer of reinstatement . . . [and] lost

wages.” J.A. 599.

The letter further stated that the strike would “cover all

work performed by the bargaining unit which is not subject to a

labor agreement with a binding no strike clause.” Id. In that

regard, it said that the union would “continue to honor Article 12

of the Project Labor Agreement” for the convention center

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project, id., which stated that the signatory unions would not

engage in any “economic or unfair labor practice strike” on that

project, PLA ¶ 12.1 (J.A. 567). Accordingly, the letter declared

that unit employees assigned to that project would “fully

perform all work covered by the PLA in accordance with that no

strike provision” and would not picket at that jobsite. J.A. 599.

SMI was able to continue its operations throughout the

course of the nine-day strike, using SM employees from Ohio

and hiring approximately sixteen replacement workers to cover

the striking employees’ work. Despite the striking employees’

willingness to perform PLA-related work, SMI did not assign

them any such work. Throughout the strike, the employees

picketed with signs stating that they were on an “unfair labor

practice strike for the illegal termination of Gary Stevenson.”

Spurlino Materials, 357 NLRB No. 126, at 5.

On August 11, Cahill gave SMI’s operations manager a

letter notifying the company that the employees were prepared

to end the strike and unconditionally return to work the next day.

The letter demanded that the company immediately recall the

employees to work. SMI, however, refused to reinstate the

strikers. It told the union that it had no duty to do so, both

because the strike was an economic strike (and SMI had hired

permanent replacements for all positions), and because the strike

was an unprotected partial strike since it had excluded the

convention center site.

Thereafter, the union filed an unfair labor practice charge

alleging that SMI, SM, or both as a single employer had violated

sections 8(a)(3) and (1) of the NLRA, 29 U.S.C. §§ 158(a)(3) &

(1), by refusing to reinstate the striking employees. Following

a hearing, an ALJ concluded that SMI and SM constituted a

single employer that had violated the Act as alleged. The ALJ

ordered the companies to reinstate the employees and make

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them whole for any loss of earnings and benefits suffered as a

result of the unlawful refusal to reinstate them. The Board

adopted the ALJ’s findings and recommendations in all relevant

respects.

Spurlino now petitions for review and the Board

cross-applies for enforcement of its order. Spurlino defends its

refusal to reinstate the striking employees on two grounds,

which we take up in Part II. In Part III, we address Spurlino’s

further contention that the Board erred in finding that SMI and

SM constituted a single employer. “We must uphold the

judgment of the Board unless, upon reviewing the record as a

whole, we conclude that the Board’s findings are not supported

by substantial evidence, or that the Board acted arbitrarily or

otherwise erred in applying established law to the facts of the

case.” Mohave Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188

(D.C. Cir. 2000) (internal quotation marks omitted); see 29

U.S.C. § 160(e), (f).

II

Spurlino maintains that the Board erred in finding that its

refusal to reinstate the striking employees was unlawful. It

argues that the striking employees were not entitled to

reinstatement because they engaged in: (a) an economic strike

rather than an unfair labor practice strike; and (b) a partial strike.

We consider these arguments below.

A

Strikes may be categorized as either economic or unfair

labor practice strikes. See Gen. Indus. Emps. Union, Local 42

v. NLRB, 951 F.2d 1308, 1311 (D.C. Cir. 1991). That

categorization carries significant consequences. Economic

strikers run the risk of replacement if, during the strike, the

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employer takes on permanent new hires. NLRB v. Int’l Van

Lines, 409 U.S. 48, 50 (1972); Gen. Indus. Emps. Union, 951

F.2d at 1311. By contrast, employees who engage in an unfair

labor practice strike are entitled to reinstatement to their former

positions if they wish to return to work at the conclusion of the

strike, even if the employer has hired replacements. See Int’l

Van Lines, 409 U.S. at 50-51; Mastro Plastics Corp. v. NLRB,

350 U.S. 270, 278 (1956); Gen. Indus. Emps. Union, 951 F.2d

at 1311. Accordingly, an employer violates the NLRA if it fails

to reinstate unfair labor practice strikers once they have made an

unconditional offer to return to work. See Alwin Mfg. Co. v.

NLRB, 192 F.3d 133, 141-42 (D.C. Cir. 1999).

To determine into which category a strike falls, the Board

looks to the employees’ motivations for striking, considering

both objective and subjective evidence. See Gen. Indus. Emps.

Union, 951 F.2d at 1312; Exec. Mgmt. Servs., Inc., 355 NLRB

185, 194-96 (2010); Chi. Beef Co., 298 NLRB 1039, 1039

(1990). A strike wholly driven by the desire of employees to

obtain favorable employment terms is an economic strike.

When employees strike in protest of their employer’s unfair

labor practices, the strike is -- as the label suggests -- an unfair

labor practice strike. See Int’l Van Lines, 409 U.S. at 50-51;

Gen. Indus. Emps. Union, 951 F.2d at 1311.

In some cases, a strike will have more than one cause:

employees will be spurred to action both by their desire to

improve their negotiating position and by their desire to protest

their employer’s unfair labor practices. In such cases, the Board

has employed a simple rule of categorization: so long as an

unfair labor practice has “anything to do with causing” a strike,

the strike is an unfair labor practice strike. Gen. Drivers &

Helpers Union, Local 662 v. NLRB, 302 F.2d 908, 911 (D.C.

Cir. 1962). “The employer’s unfair labor practice need not be

the sole or even the major cause or aggravating factor of the

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strike; it need only be a contributing factor.” Teamsters Local

Union No. 515 v. NLRB, 906 F.2d 719, 723 (D.C. Cir. 1990)

(internal quotation marks omitted); see Alwin Mfg. Co., 192 F.3d

at 141; Gen. Indus. Emps. Union, 951 F.2d at 1311.

Spurlino argues that its striking employees were not entitled

to reinstatement because they engaged in an economic rather

than unfair labor practice strike. Under the case law just

described, Spurlino cannot win that argument as long as the

employees struck at least in part to protest its unfair labor

practices. Because the question of what motivated a strike is

one of fact, we must uphold the Board’s findings in this regard

as long as they are supported by substantial evidence. Gen.

Indus. Emps. Union, 951 F.2d at 1312; see 29 U.S.C.

§ 160(e), (f); Monmouth Care Ctr. v. NLRB, 672 F.3d 1085,

1089 (D.C. Cir. 2012).

We conclude that the Board’s categorization of the strike as

an unfair labor practice strike is supported by substantial

evidence showing that at least part of the employees’ motive to

strike was Spurlino’s unlawful refusal to reinstate Stevenson,

who had been unlawfully discharged. The union called the

strike-vote meeting for the specific purpose of taking a vote on

whether to engage in an unfair labor practice strike. Following

an explanation of the differences between an unfair labor

practice strike and an economic strike, the employees

unanimously voted to engage in an unfair labor practice strike.

Consistent with that vote, the union’s strike letter and the

employees’ picket signs specifically stated that the employees

were striking to protest Spurlino’s refusal to remedy Stevenson’s

unlawful discharge. Two striking employees who testified

before the ALJ cited Spurlino’s unwillingness to reinstate

Stevenson as a reason they voted to strike. And at no time

during the strike did the union make any economic demands.

See Spurlino Materials, 357 NLRB No. 126, at 10.

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Spurlino correctly notes that there was evidence that

employees also had economic motivations for striking. In the

spring of 2010, some employees voiced concerns and asked

questions about the failed contract negotiations -- at the May 13

strike meeting, as well as at a mandatory employees meeting

that the company called thereafter. But as this court has held,

“[t]he employer’s 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.” Teamsters Local Union No. 515,

906 F.2d at 723 (internal quotation marks omitted).

Spurlino mounts two principal challenges to the Board’s

determination that the strike was motivated by unfair labor

practices. We find neither persuasive.

First, Spurlino argues that the Board’s decision rests on

“self-serving” evidence -- which, according to Spurlino, is

evidence that supports the proponent’s own interests and that is

not verifiable because it goes to the proponent’s subjective

motivations. See Oral Arg. Recording 3:58-4:07. We do not

know what to make of the first descriptor: it would be an act of

unusual altruism for a proponent to put on evidence that did not

support its interests. Surely Spurlino did not limit its witnesses

to those who supported the union’s case. Nor is the fact that

some of the evidence went to the employees’ subjective

motivations surprising or disqualifying. After all, the core

question is what the motivation was for the strike, and Board

precedent clearly supports taking account of subjective evidence

in making that determination. See Gen. Indus. Emps. Union,

951 F.2d at 1312; Chi. Beef Co., 298 NLRB at 1039.

To be sure, Spurlino is correct that the credibility of “self-

serving” evidence must be carefully assessed. But the Board

and ALJ did that here. As Spurlino notes, there are indeed cases

in which courts have rejected Board findings that strikes were

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motivated by unfair labor practices -- findings supported by

evidence that could be described as self-serving. But those

courts neither excluded such evidence as irrelevant nor

discounted its value to zero. Rather, they simply found that the

evidence in those cases -- evidence that was less substantial or

significantly less credible than the evidence upon which the

Board relied here -- was insufficient to satisfy the substantial

evidence test.2

Spurlino focuses particularly on the fact that the union’s

attorney explained to the employees the differences between an

unfair labor practice strike and an economic strike before the

employees voted to limit the strike to protesting Spurlino’s

treatment of Stevenson. But there is no legal requirement that,

to be credited, a strike vote must be taken in ignorance of its

consequences. See Dorsey Trailers, Inc., 327 NLRB 835, 856

(1999) (affirming an ALJ’s holding that a union could not “be

blamed for having had sufficient foresight . . . to advise its

members against walking out to protest something other than

unfair labor practices”). The Board took into account the

attorney’s statements, as well as the other evidence described

above -- including the fact that the strike letter and picket signs

were limited to protesting Stevenson’s termination, and the fact

that the union never made any economic demands during the

strike. These, together with the two employees’ testimony about

their own motivations, constitute substantial evidence to support

2

See, e.g., Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 518-19

(4th Cir. 1998) (reversing the Board’s determination where it relied

exclusively on testimony about union officials’ -- not union members’

-- motivations); Winn-Dixie Stores, Inc. v. NLRB, 448 F.2d 8, 9-11, 10

n.4 (4th Cir. 1971) (finding the evidence insufficient where employee

testimony that a strike was motivated by unfair labor practices was

contradicted by picket signs and handbills that “reflected only

economic grievances”).

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the Board’s determination that Spurlino’s unfair labor practices

were a motive for the strike.

Second, Spurlino points to the three-year gap between the

February 2007 discharge of Stevenson and the August 2010

strike as proof that the discharge could not have been a motive

for the strike. Had the discharge actually been a motive, the

company insists, the employees would have struck closer to the

date of the discharge.

But this ignores the fact that the gap in time was a

consequence of the employees’ decision to first put their faith in

the legal system -- rather than rely on self-help -- to rectify the

unfair labor practice. In 2009, the NLRB did in fact order

reinstatement, an order that the Seventh Circuit ultimately

enforced. See supra note 1. But when the employees struck in

August 2010, Stevenson still had not been reinstated. Spurlino

was appealing the Board’s determination to the Seventh Circuit,

and the employees were told that settlement negotiations had

recently failed. At that point, it was not simply Stevenson’s

discharge, but also Spurlino’s ongoing failure to reinstate

Stevenson, that the employees protested. See Spurlino

Materials, 357 NLRB No. 126, at 14 (ALJ Op.) (“I conclude

that the employees struck at least in part over the Respondent’s

unlawful discharge and failure to reinstate Stevenson.”

(emphasis added)); see also J.A. 599 (strike letter stating that the

employees would strike “until Spurlino Materials remedie[d] the

unfair labor practice it committed in discharging Gary

Stevenson” and gave Stevenson “an offer of reinstatement” and

“lost wages”); J.A. 116 (testimony by an employee that the “first

goal of th[e] strike” was to “get Gary Stevenson his job back”);

J.A. 126 (testimony by another employee that he voted to strike

because “it was unfair that [Spurlino] w[as] not allowing

[Stevenson] to come to work”). There was, therefore, no gap at

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all between the continuing unfair labor practice and the day the

employees began their strike.3

In sum, we conclude that substantial evidence supports the

Board’s determination that the strike by Spurlino’s employees

was an unfair labor practice strike.

B

Spurlino’s second contention is that, even if the strike was

an unfair labor practice strike, it was nonetheless outside the

protection of the NLRA because the employees engaged in only

a partial strike. As noted in Part I, the Project Labor Agreement

contained a clause barring the employees from conducting any

kind of strike -- including an unfair labor practice strike -- with

respect to work on the convention center project. The union’s

strike letter informed Spurlino that the employees would

“continue to honor” that clause, and so would cease all work

except work on that project. Spurlino Materials, 357 NLRB No.

126, at 4. That exception, Spurlino maintains, rendered the

strike an unprotected “partial strike.”

A strike is protected under the NLRA only if it is a

“complete” strike. See Audubon Health Care Ctr., 268 NLRB

135, 137 (1983). Striking employees lose the protection of the

Act if they engage in a “partial strike.” Inova Health Sys. v.

NLRB, 795 F.3d 68, 87 (D.C. Cir. 2015); see First Nat’l Bank,

3

Spurlino further maintains that the union never requested that

Stevenson be reinstated until its August 3 strike letter. That

contention is baffling: the union filed a charge challenging

Stevenson’s termination in 2007, and it spent the intervening years

litigating the lawfulness of that discharge and urging the remedy of

reinstatement before both the NLRB and the Seventh Circuit. See

Spurlino Materials, 357 NLRB No. 126, at 2-3.

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171 NLRB 1145, 1151 (1968). As the Board has explained,

when employees “pick and choose the work they will do or

when they will do it,” their conduct “constitutes an attempt . . .

to set their own terms and conditions of employment in defiance

of their employer’s authority to determine those matters.”

Audubon, 268 NLRB at 137. Accordingly, employees who

engage in a partial strike are not protected by the NLRA and

may lawfully be discharged. Id.

Spurlino argues that the employees’ offer to perform work

on the convention center project during the strike rendered the

strike a partial strike. It “makes no difference,” Spurlino

maintains, that the employees’ willingness to continue working

on that project arose out of the no-strike clause in the Project

Labor Agreement. Spurlino Br. 24. Whatever the motivation,

they stopped doing some -- but not all -- work and therefore

were not entitled to reinstatement. In reaching the contrary

conclusion, Spurlino insists, the Board erred in applying

established law to the facts of the case.

We disagree. Like the Board, we find that the partial-strike

precedents are a poor fit for the case before us. See Pacific

Coast Supply, LLC v. NLRB, 801 F.3d 321, 333 (D.C. Cir. 2015)

(“We . . . must give deference to [an agency’s] interpretations

of its own precedents.” (internal quotation marks omitted)).

Spurlino correctly notes that the “purpose of prohibiting partial

strikes is to avoid employees dictating the terms of their own

employment.” Reply Br. 6; see Highlands Hosp. Corp., 278

NLRB 1097, 1097 (1986) (declaring that to tolerate partial

strikes “would be to allow employees to do what [the Board]

would not allow any employer to do, that is to unilaterally

determine conditions of employment” (internal quotation marks

omitted)). But Spurlino’s employees were not attempting to

dictate the terms of their employment or “to usurp [the

employer’s] prerogative to assign work,” Audubon, 268 NLRB

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at 137. “On the contrary,” as the ALJ explained, they “were

acting in accordance and compliance with the terms and

conditions contained in the PLA, to which both the Company

and the Union were signatory.” Spurlino Materials, 357 NLRB

No. 126, at 14.

Nor can it be said that the employees left Spurlino in doubt

as to whether they were striking -- another concern that animates

the partial-strike ban. See Vencare Ancillary Servs., Inc. v.

NLRB, 352 F.3d 318, 324 (6th Cir. 2003) (“The underlying

rationale of the prohibition on partial strikes is that the employer

has a right to know whether or not his employees are striking.”).

The union’s strike letter unambiguously declared that the

employees were striking with respect to all work except work on

the convention center project. Spurlino has never suggested any

confusion about the employees’ intentions in that regard.

The Board was also reasonable in buttressing its rejection

of Spurlino’s partial-strike argument by taking note of the

“Catch-22” that Spurlino’s position would create for the

employees. Spurlino Materials, 357 NLRB No. 126, at 14. In

Spurlino’s view, if the employees honored the no-strike clause

and agreed to perform PLA work, they would be engaging in a

partial strike, thus forfeiting the NLRA’s protection. Yet, if they

refused to perform the PLA work, they would be violating the

no-strike clause, which would again strip the strike of its

protected status. See NLRB v. City Disposal Sys. Inc., 465 U.S.

822, 837 (1984). Hence, if Spurlino’s position were accepted,

the employees could be fired for engaging in any kind of strike.

As the ALJ put it, “the employees would be forced to choose

between forfeiting their right to strike or forfeiting their jobs.”

Spurlino Materials, 357 NLRB No. 126, at 14. Attributing such

broad consequences to a no-strike clause limited to a single

project would contravene not only the requirement that any

waiver of the right to strike must be “clear and unmistakable,”

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Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983), but also

“the strong interest of federal labor policy in the legitimate use

of the strike,” NLRB v. Erie Resistor Corp., 373 U.S. 221, 235

(1963).

In sum, the Board was reasonable in concluding that the

employees’ respect for a prior contractual agreement did not

convert their otherwise lawful strike into an unprotected partial

strike.

III

Finally, Spurlino challenges the Board’s determination that,

although the unit employees were formally employed only by

SMI, SMI and SM constituted a single employer. When the

Board finds that two entities constitute a “single employer,” the

two entities may be held jointly and severally liable for any

unfair labor practice committed by either one. See Emsing’s

Supermarket, Inc., 284 NLRB 302, 302 (1987). The bottom-line

question in considering whether two entities are a single

employer is “whether they have failed to maintain the kind of

arm’s-length relationship that would normally characterize

separate and independent companies.” Spurlino Materials, 357

NLRB No. 126, at 6; see Emsing’s Supermarket, 284 NLRB at

302.

To answer that question, the Board examines four factors:

(1) common ownership or financial control, (2) common

management, (3) interrelation of operations, and (4) centralized

control of labor relations. See S. Prairie Const. Co. v. Local No.

627, Int’l Union of Operating Eng’rs, 425 U.S. 800, 802 n.3

(1976); RC Aluminum Indus., Inc. v. NLRB, 326 F.3d 235, 239

(D.C. Cir. 2003). The Board has explained that “no single

aspect is controlling, and all four factors need not be present to

find single-employer status.” Bolivar-Tees, Inc., 349 NLRB

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720, 720 (2007); see RC Aluminum Indus., 326 F.3d at 239. As

the question of single-employer status is “primarily factual,” we

again must uphold the Board’s determination if it is supported

by substantial evidence. NLRB v. Al Bryant, Inc., 711 F.2d 543,

551 (3d Cir. 1983); see Asher Candy, Inc. v. NLRB, 258 F.

App’x 334, 334 (D.C. Cir. 2007). We find no basis for

disturbing the Board’s well-supported determination that SMI

and SM constituted a single employer.4

First, with respect to common ownership or financial

control, the ALJ noted that James Spurlino was at all times the

majority owner of both SMI and SM. Although Spurlino points

out that there were no other common owners and that neither

company had a board of directors, common ownership does not

demand multiple common owners or a particular type of

corporate structure. At the time of the ALJ’s decision, James

Spurlino owned 100% of SM and 52% of SMI, with the

remaining 48% of the latter equally divided between his father

and another company owned by a longtime friend. On these

facts, the ALJ appropriately determined that there was

“substantially common ownership and financial control.”

Spurlino Materials, 357 NLRB No. 126, at 6.

Second, as to common management, the ALJ noted that

James Spurlino was the president and manager of both SMI and

SM. He further found -- based on a detailed factual analysis --

that James Spurlino “makes the major decisions for both

companies.” Id. at 7 (discussing James Spurlino’s role in, inter

4

Spurlino contends that the Board’s single-employer analysis is

inapplicable to this case because there was no “precipitating event” or

“overt act” by SM that would subject it to such analysis. Spurlino Br.

41. There is no precedent, however, that imposes such a triggering

requirement for application of single-employer analysis.

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alia, strategic direction and operations, property management,

financial decisions, and major projects).

Spurlino attacks the relevance of the ALJ’s findings,

arguing that the common management inquiry should focus only

on shared control of day-to-day operations -- not top-level

decisionmaking. But the ALJ did not, as Spurlino maintains,

ignore the fact that SMI had its own operations managers. See

Spurlino Materials, 357 NLRB No. 126, at 6-7. Instead, the

ALJ noted that under Board precedent “the absence of such

common day-to-day management is not considered significant,

particularly where, as here, the facilities are geographically

separate.” Id. at 7. Rather, “the relevant inquiry is whether

there is ‘overall control of critical matters at the policy level.’”

Id. (quoting Bolivar-Tees, 349 NLRB at 721 n.4); see Sakrete of

N. Cal., Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir. 1964).

Although common management of day-to-day decisions would

support a finding of common management, see Cimato Bros.,

Inc., 352 NLRB 797, 799 (2008), the ALJ’s rejection of the

inverse was well supported by the above-cited precedent. We

therefore affirm the Board’s determination that James Spurlino’s

managerial role at SMI and SM supported a single-employer

determination.

Third, the ALJ found that SMI and SM satisfied the

interrelation of operations factor. The two companies publicly

held themselves out as the same enterprise -- “Spurlino

Materials” -- on their common website, business cards,

stationery, and trucks. At times, they did so internally as well.

In addition, SM had admitted, in the Board proceeding involving

the unfair labor practice charge for terminating Stevenson, that

it was the employer of the unit employees. Spurlino Materials,

357 NLRB No. 126, at 7; see also id. at 1 n.1 (Board Op.)

(noting that this was a “relevant consideration in determining the

interrelation of operations between SM and SMI”). Further, the

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ALJ catalogued a laundry list of specific evidence of interrelated

operations: all invoices for SMI’s purchases were sent to SM’s

facility; SM’s controller did all of the accounting for SMI; there

was a significant history of employee exchange between the

companies; and employees for each company periodically did

work for the other company. Id. at 7-8 (ALJ Op.).

The ALJ also found powerful evidence that “the companies’

transactions between each other [were] not entirely at arm[’]s

length.” Spurlino Materials, 357 NLRB No. 126, at 8. The

companies did not invoice each other for shared costs of

common services; they did not charge each other for all such

services based on actual costs; SM frequently made large cash

advances to SMI without any loan agreement, repayment terms,

or interest; SM regularly paid SMI’s bills directly; and large

amounts of money frequently moved between the companies on

the last day of the month, without invoices or other explanatory

documentation. “Not entirely at arm’s length” is an

understatement.

Finally, with respect to common control of labor relations,

the ALJ found that, although the companies had separate

managers and dispatchers who exercised day-to-day control over

employees, James Spurlino “ha[d] the ultimate authority over

the labor relations of both” and “actually exercised that

authority” by “determin[ing] the initial wages and benefits for

the employees of both companies.” Spurlino Materials, 357

NLRB No. 126, at 9. The ALJ further found that, although an

SMI employee, Jeff Davidson, was the designated representative

during collective-bargaining negotiations, Spurlino “personally

met with the Union and its attorney and communicated directly

with employees regarding the collective-bargaining

negotiations.” Id. Moreover, Davidson “made clear to the

employees that Spurlino ha[d] the final say with respect to any

agreement.” Id. Ample evidence supported these findings and,

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thus, the Board’s conclusion that the labor relations of SM and

SMI were centrally controlled.

As we have noted, Board precedent provides that “no single

aspect is controlling, and all four factors need not be present to

find single-employer status.” Bolivar-Tees, 349 NLRB at 720.

In this case, substantial evidence supports the Board’s

determination that all four were present. A fortiori, substantial

evidence supports the Board’s ultimate determination that SM

and SMI were a single employer.

IV

For the foregoing reasons, we deny Spurlino’s petition for

review and grant the Board’s cross-application for enforcement

of its order.

So ordered.