In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1371
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.
IRVING R EADY-M IX, INC.,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:10-cv-00346-JD-RBC—Jon E. DeGuilio, Judge.
A RGUED JUNE 9, 2011—D ECIDED A UGUST 5, 2011
Before M ANION, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. The district court issued an
injunction under section 10(j) of the National Labor
Relations Act, 29 U.S.C. § 160(j), ordering respondent
Irving Ready-Mix, Inc. to stop certain unfair labor
2 No. 11-1371
practices pending a final administrative decision by the
National Labor Relations Board. Irving Ready-Mix has
appealed, but we find no error or abuse of discretion
by the district judge. We affirm.
I. Factual and Procedural Background
Respondent Irving Ready-Mix, Inc. sells, delivers, and
installs ready-mix concrete from its five plants in
northern Indiana. For many years, the ready-mix concrete
truck drivers employed by Irving Ready-Mix have been
represented by the Chauffeurs, Teamsters & Helpers,
Local Union No. 414, a local of the International Brother-
hood of Teamsters. A collective bargaining agreement
was in effect from June 1, 2005 through May 31, 2010.
As the agreement’s expiration date neared, the union
and management met to negotiate a new agreement. The
employer insisted that a new agreement would have to
allow it to reduce its total labor costs (wages plus benefits)
from approximately $43.00 per hour to about $31.00 per
hour. The union refused, management stuck to its
position, and the old agreement expired on May 31, 2010
without a replacement. The drivers went on strike on
June 1st.
The employer then took the actions at the center of this
lawsuit. It announced that it no longer recognized the
union as the drivers’ collective bargaining representa-
tive. Instead, it contacted the drivers directly, offering
to employ them individually on new terms consistent
with management’s last offer. A few drivers resigned from
No. 11-1371 3
the union and returned to work, including one member
of the union’s bargaining committee. The strike ended
on July 19, 2010, and more drivers returned to work at
the lower wage rates and on terms less favorable than
those of the old collective bargaining agreement.
The union filed charges of unfair labor practices with
the National Labor Relations Board. The charges relevant
to this appeal all stem from the employer’s refusal to
recognize the union after the old collective bargaining
agreement expired, despite the absence of evidence that
the union had lost support of a majority of the drivers.
An administrative law judge heard evidence from the
parties on September 29 and 30, 2010. The next week, on
October 5, 2010, NLRB regional Director Rik Lineback
filed this petition in the district court seeking a sec-
tion 10(j) injunction pending a final decision by the Board.
Before the district court ruled on the injunction re-
quest, the ALJ issued a decision finding that all but one
of the unfair labor practice charges had merit. First, the
ALJ determined that the employer was subject to the
unfair labor practices restrictions of the National Labor
Relations Act (NLRA) as a result of the type of collective
bargaining agreement it held with the union. Second, the
ALJ concluded that the employer violated two of those
restrictive provisions. We elaborate briefly on the ALJ’s
conclusions.
In the first step of his analysis, the ALJ found that the
employer’s collective bargaining agreement with its
employees was made pursuant to section 9(a) of the
NLRA, 29 U.S.C. § 159(a). Under this section, a union
4 No. 11-1371
chosen for purposes of collective bargaining by the major-
ity of employees in a unit is considered the exclusive
representative for negotiating conditions of employment.
Other provisions of the Act prohibit practices that
interfere with this section 9(a) relationship. The relevant
provision here is section 8(a), which prohibits unfair
practices by the employer. See NLRA § 8(a)-(b), (d);
29 U.S.C. § 158(a)-(b), (d).
To avoid this result, the employer argued that its rela-
tionship with the union was governed not by section 9(a)
but by section 8(f), under which it would have been
excepted from the restrictions of section 8(a). Section 8(f)
of the NLRA allows an employer “engaged primarily in
the building and construction industry” to enter into a
collective bargaining agreement with a union before the
union has established majority status.1 See 29 U.S.C.
§ 158(f). As a result of this special situation, section 8(f)
1
Section 8(f) was enacted to accommodate the special needs
of the building and construction industry. See H.R. Rep. No. 741,
at 19-20 (1959). In Operating Engineers Pension Trust v. Beck
Engineering & Surveying Co., 746 F.2d 557, 563 (9th Cir. 1984), the
Ninth Circuit explained that, in adopting section 8(f),
Congress recognized that the representation procedures
prescribed in Section 9 of the Act were largely unsuited to
the peculiar circumstances of the construction industry,
where employers ordinarily hire on a project-by-project
basis . . . [and] where an employer who might employ no
one unless he is working on a project, must nevertheless
know his anticipated labor costs before making a bid and
must have access to a readily available pool of skilled
craftsmen.
No. 11-1371 5
agreements are not subject to the full set of unfair labor
practices restrictions like traditional section 9(a) agree-
ments. Under section 8(f), the employer’s unilateral
termination of recognition after expiration of the collec-
tive bargaining agreement would have been permitted.
The ALJ rejected the employer’s argument, relying on
Board precedents that ready-mix concrete employers
are not “engaged primarily in the building and construc-
tion industry” within the meaning of section 8(f).
The ALJ also noted that the employer’s agreement
with the union exhibited “no evidence” that it was a
section 8(f) agreement. The employer and the union
had entered into at least four consecutive five-year con-
tracts. Those contracts allowed new employees thirty
days to join the union, rather than the seven days permit-
ted in contracts under section 8(f). Further, the drivers’
employment with the employer was stable and long-
term, not the sporadic and site-specific work that charac-
terizes many construction jobs for which section 8(f) was
designed. Concluding that section 9(a) controlled the
parties’ relationship, the ALJ then found that the em-
ployer violated subsections 8(a)(1) and 8(a)(5) by com-
municating directly with the drivers during the strike
and unilaterally changing the terms of the drivers’ em-
ployment.
A few weeks later, on January 28, 2011, the district
court granted the Director’s motion for a preliminary
injunction pending a final decision by the Board. The
court ordered the employer to recognize the union as
the drivers’ exclusive collective bargaining representa-
6 No. 11-1371
tive; to restore wages, benefits, and working conditions
to what they had been under the old collective bargaining
agreement; and, to stop dealing directly with individual
employees regarding wages and other terms of employ-
ment. The employer then filed this appeal.
II. Analysis
We discuss first the applicable law governing the
injunction and then turn to the specific factual and legal
issues concerning the employer’s attempt to take ad-
vantage of section 8(f) to withdraw recognition from
the union.
A. Section 10(j) of the National Labor Relations Act
Under section 10(j), a district court may order injunctive
relief pending the Board’s final disposition of an unfair
labor practice claim if such relief would be “just and
proper.” 29 U.S.C. § 160(j); Lineback v. Spurlino Materials,
LLC, 546 F.3d 491, 499 (7th Cir. 2008). We review the
district court’s decision to grant interim relief under
this section for an abuse of discretion and reverse only
if its decision depends on “faulty legal premises, clearly
erroneous factual findings, or improper application of
the criteria governing preliminary injunctive relief.”
Spurlino Materials, 546 F.3d at 500, quoting NLRB v. Electro-
Voice, Inc., 83 F.3d 1559, 1566 (7th Cir. 1996).
An injunction granted under section 10(j) is an “extra-
ordinary remedy” and should be granted only in those
No. 11-1371 7
situations in which effective enforcement of the Act is
threatened by delay in the Board’s dispute resolution
process. See Bloedorn v. Francisco Foods, Inc., 276 F.3d 270,
297 (7th Cir. 2001). The district court must consider “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.” Spurlino Mate-
rials, 546 F.3d at 500, quoting Francisco Foods, 276 F.3d
at 286. This final requirement does not ask the district
court to pass on the merits of the underlying case;
rather, the court evaluates only on a preliminary basis
the Director’s probability of success before the Board.
See Francisco Foods, 276 F.3d at 287; Electro-Voice, 83 F.3d
at 1567. In this case, the district court did not issue its
decision until after the ALJ issued a decision, but a
district court need not wait for such a preliminary deci-
sion. See, e.g., Lineback v. Printpack, Inc., 979 F. Supp. 831,
858 (S.D. Ind. 1997) (issuing section 10(j) injunction before
ALJ ruled). The goal is to protect the integrity of
the collective bargaining process and to preserve the
Board’s power to provide effective remedies for viola-
tions despite the “notoriously glacial” pace of Board
proceedings. See Kinney v. Pioneer Press, 881 F.2d 485, 491
(7th Cir. 1989) (vacating denial of section 10(j) injunction),
quoting Boire v. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, 479 F.2d
778, 788 (5th Cir. 1973).
Here, the district court determined that the Director
presented sufficient evidence for each of the four
elements such that a section 10(j) injunction was war-
ranted. Finding the employer’s practices to be “enor-
8 No. 11-1371
mously destructive” to the union’s organizational efforts,
the court had no trouble concluding that the union had
established irreparable harm. This conclusion was clearly
correct. We have previously found circumstances such
as these — a decline in the union’s membership, loss of
employee benefits, and ongoing erosion of the employer-
union relationship — to be sufficient to establish irrep-
arable harm. See Spurlino Materials, 546 F.3d at 500-01
(affirming section 10(j) injunction on similar facts and
noting the probable inadequacy of the Board’s eventual
remedy); see also Francisco Foods, 276 F.3d at 297 (reversing
denial of section 10(j) injunction); Barker v. A.D. Conner
Inc., ___ F. Supp. 2d ___, ___, 2011 WL 2683164, at *16
(N.D. Ill. July 11, 2011) (granting section 10(j) injunc-
tion). The employer here does not even challenge the
district court’s finding of irreparable harm. Nor does
the employer dispute the district court’s determinations
as to the balance of harms or the public interest. The
issue for our review is the district court’s assessment of
the Director’s likelihood of success on the merits — an
assessment we review for clear error. See Electro-Voice,
83 F.3d at 1570. Giving deference to the findings of the
district court and some measure of deference to the view
of the ALJ, we consider whether the Director has
“some chance” of succeeding before the Board. Spurlino
Materials, 546 F.3d at 502.
B. Classifying the Ready-Mix Concrete Business
The nature of the employer’s obligations following
the expiration of the collective bargaining agreement
No. 11-1371 9
depends on whether the agreement was constituted
according to NLRA section 9(a) or section 8(f). If Irving
Ready-Mix as a ready-mix concrete company qualifies
under section 8(f) as “an employer engaged primarily in
the building and construction industry,” then it is
not subject to some of the NLRA’s unfair labor practice
restrictions in section 8(a) and was entitled to withdraw
recognition from the union. See Engineered Steel Concepts,
Inc., 352 N.L.R.B. 589, 600 (2008), citing John Deklewa &
Sons, 282 N.L.R.B. 1375 (1987), enforced sub nom. Inter-
national Ass’n of Bridge, Structural & Ornamental Iron
Workers, Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988). If the
employer does not qualify under section 8(f), then the
union was entitled to a rebuttable presumption that a
majority of drivers still supported it as the exclusive
collective bargaining representative pursuant to section
9(a) even after the old agreement expired. Engineered
Steel Concepts, 352 N.L.R.B. at 600; St. John Trucking,
303 N.L.R.B. 723, 729 (1991). The employer has made
no attempt to rebut that presumption. Thus, if the em-
ployer is not covered by the section 8(f) exception, its
withdrawal of recognition violated section 8(a). We
turn now to this principal issue.
Ready-mix concrete, involving the delivery of fresh
wet concrete manufactured at a plant to a work site in
a transit mixer truck, is not a recent innovation.2 This
2
See F. Biasioli, “Ready Mix Concrete: An Old-New Material
for the 21st Century” in Creating with Concrete, eds. Ravindra K.
(continued...)
10 No. 11-1371
court and the Board have had occasion to address the
activities of ready-mix concrete companies in several
cases. The Board has previously decided this very ques-
tion under section 8(f) and concluded that a ready-
mix concrete company is not an “employer engaged
primarily in the building and construction industry.”
Irving Ready-Mix does not contend that it presents a
novel claim here. Rather, it suggests that the Board prece-
dents on which the ALJ and the district court based
their decisions were wrongly decided.
The ALJ and district court relied on J.P. Sturrus Corp.,
288 N.L.R.B. 668 (1988), in which the Board agreed with
an ALJ’s finding that ready-mix concrete delivery was
not considered “construction” for purposes of section 8(f).
There, the ALJ looked to prior Board precedent stating
that ready-mix concrete delivery did not fall within the
meaning of “construction” under NLRA section 8(e) and
extended that line of reasoning to the “building and
construction industry” under section 8(f).3 The Board
added that although the “drivers occasionally, and at
2
(...continued)
Dhir, Peter C. Hewlett, and M. Roderick Jones (Thomas Telford
Publishing 1999), 170 (discussing the scientific development
of ready-mix concrete in the early 1900s).
3
Section 8(e) provides another exception to the NLRA’s unfair
labor practices provisions for agreements between labor
organizations and an employer “in the construction industry”
relating to the “contracting or subcontracting of work to be
done at the site of construction.” 29 U.S.C. § 158(e); see also
Inland Concrete Enterprises, Inc., 225 N.L.R.B. 209 (1976);
Island Dock Lumber, Inc., 145 N.L.R.B. 484 (1963).
No. 11-1371 11
their own discretion, assist the contractor at the construc-
tion site with screeting and spreading of concrete, after
they have poured it,” such incidental tasks did not
bring the company within the building and construction
industry as required by section 8(f). 288 N.L.R.B. at 668.
Since J.P. Sturrus, the Board has repeatedly held that
ready-mix concrete delivery companies and similar
businesses that deliver construction materials to job
sites are not engaged in construction for purposes of
section 8(f). See Engineered Steel Concepts, 352 N.L.R.B. at
602 (noting entire line of J.P. Sturrus cases and concluding
that employers engaged in the transportation and
delivery of scrap steel were not engaged primarily in the
building and construction industry and, as a result, could
not enter into a section 8(f) relationship); Mastronardi
Mason Materials Co., 336 N.L.R.B. 1296, 1306-07 (2001)
(relying on J.P. Sturrus for classifying agreement between
ready-mix concrete employer and union); Techno Con-
struction Corp., 333 N.L.R.B. 75, 81-83 (2001) (discussing
the J.P. Sturrus holding and using it as guidance to
refine the range of work comprised by the “building
and construction industry”); St. John Trucking, 303
N.L.R.B. at 730 (acknowledging teaching of J.P. Sturrus
and holding that an employer engaged in the transporta-
tion and delivery of stones, sand, and commodities at
job sites was not engaged in the building and construc-
tion industry for purposes of section 8(f)).
Like other construction material manufacturers and
suppliers, ready-mix concrete falls in a grey area between
construction labor, such as carpentry for framing homes,
12 No. 11-1371
and manufacture of building materials, such as bricks
or nails. But section 8(f) requires that a line be drawn
somewhere and drawing that line is more the Board’s job
than it is ours. As a general matter, we defer to the
Board’s judgment with respect to such specialized issues
of labor law. See Local 15, IBEW v. NLRB, 429 F.3d 651, 655-
56 (7th Cir. 2005). Here, we follow the Board’s con-
sistent and reasonable judgment that ready-mix con-
crete suppliers, like other companies whose primary
role is to deliver construction materials to a job site, do
not fall within the building and construction industry
for purposes of section 8(f).
The employer here nevertheless insists that J.P. Sturrus
was wrongly decided and that we should treat it as an
aberration. To support this contention, the employer
relies on the Board’s earlier decision in Carpet, Linoleum
and Soft Tile Local Union No. 1247 (Indio Paint & Rug Cen-
ter), 156 N.L.R.B. 951 (1966). In Indio Paint, the Board
held that the employer, a flooring installer, was pri-
marily engaged in the building and construction in-
dustry within the meaning of section 8(f), as a special
trade contractor. The Board noted that the legislative
history of section 8(f) provided little guidance on what
precise definition Congress intended the “building and
construction industry” to encompass. 156 N.L.R.B. at
957. The Board adopted the “traditional meaning” of the
terms as used in common parlance as well as in
technical industrial parlance. Id.
Through its detailed analysis, the Indio Paint decision
gave ALJs guidance regarding the scope of the term
No. 11-1371 13
“building and construction industry.” That industry
includes employers engaged in “the provision of labor
whereby materials and constituent parts may be com-
bined on the building site,” but not those carrying out
the manufacture and assembly of products installed by
others at the construction site. Id. at 959. In this case,
the employer’s principal argument is that, under the
methodology of Indio Paint, ready-mix concrete com-
panies are “building and construction” companies. The
employer contends that the Board’s decision in J.P.
Sturrus, which did not cite Indio Paint, was flawed
because it broke from the Indio Paint precedent without
explanation or justification.
In our view, the employer’s argument is undermined
by the Board’s favorable treatment of J.P. Sturrus in cases
involving ready-mix concrete companies over the past
twenty years. If later cases had adopted contradictory
positions or questioned the discrepancy, the employer’s
argument might carry more weight. But its argument
that J.P. Sturrus failed to properly apply section 8(f) runs
head-on into the several cases consistently upholding
and applying that decision.
Contrary to the employer’s contention, this pattern of
Board precedent is not like the deviation we described
in Milwaukee and Southeast Wisconsin District Council of
Carpenters v. Rowley-Schlimgen, Inc., 2 F.3d 765 (7th Cir.
1993). There, we found that the Board’s decision in
Chicago District Council of Carpenters (Polk Brothers, Inc.),
275 N.L.R.B. 294 (1985) was a departure from the
Board’s otherwise consistent treatment of section 8(e) in
preceding and subsequent cases. 2 F.3d at 768. As a
14 No. 11-1371
result, we attributed little precedential value to Polk
Brothers, noting that when the Board “fails to distinguish
contradictory decisions rendered in similar cases, it
forfeits ‘the deference we would otherwise show to its
very considerable expertise in strictly labor matters.’ ”
Id., quoting Shaw’s Supermarkets, Inc. v. NLRB, 884 F.2d
34, 37 (1st Cir. 1989).
There was no such aberration here. The solid line of
cases reiterating J.P. Sturrus’ holding supports the
district court’s conclusion that the Director is likely to
succeed on the merits.
We conclude that the district court did not err.
We A FFIRM its order.
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