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.
6-23-11