Circuit Backs Reproach|of Anti-Union Measures

CHICAGO (CN) - The National Labor Relations Board was correct to denounce a Midwestern construction materials supplier for trying to marginalize its workers' union through unfair labor practices, the 7th Circuit ruled.

Truck drivers working at Spurlino Materials' concrete distribution center in Indianapolis moved toward unionization in 2005, with three of the company's top five most senior truckers, Matthew Bales, Ron Eversole and Gary Stevenson, leading the charge.

Problems first arose after Spurlino opened a temporary plant to aid construction of the Lucas Oil Stadium - now home of the Indianapolis Colts. Ignoring its established practice of dispatching drivers in order of seniority, Spurlino instead asked for volunteers to serve as "portable plant drivers." The company declined to bargain with the union about the process.

From the Indianapolis branch on Kentucky Avenue, 13 drivers applied, including Bales, Eversole and Stevenson. Spurlino claimed to have made its selection based on a formal evaluation process including a proficiency test, one of the four selected drivers had refused to take the test and another's performance on the test was inadequate. Bales, Stevenson and Eversole were not selected.

Subsequently, Spurlino won a contract for a warehouse project in Plainfield, Ind., but it hired subcontractors and used nonunion employees from its Ohio branch instead of utilizing employees from the local office. Despite union objections, the company implemented the plan, saying it was faced with a "sudden business need."

The National Labor Relations Board rebuked Spurlino's failure to bargain and ordered it to rehire 11 drivers who were fired after staging a nine-day strike.

Spurlino's first appeal to the 7th Circuit was immediately remanded in light of the Supreme Court's decision in New Process Steel v. NLRB, which held that a two-member board lacked authority to issue decisions.

A three-member board again found for the union. Spurlino's second appeal received no sympathy from the 7th Circuit.

"Spurlino has done nothing to discredit the [administrative law judge's] ALJ's factual findings as adopted by the Board, nor to rehabilitate the company witnesses the ALJ disbelieved ... this is insufficient for the company to prevail given the deferential standard of review at this stage of the litigation," Judge Richard Cudahy wrote for the court.

Spurlino Materials operates in Indiana, Ohio and Kentucky.

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