Lineback, Rik v. Spurlino Materials

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3925
R IK L INEBACK, Regional Director of
the Twenty-Fifth Region of the National
Labor Relations Board, for and on
behalf of the N ATIONAL L ABOR
R ELATIONS B OARD ,
Petitioner-Appellee,
v.
S PURLINO M ATERIALS, LLC,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 07 C 599—David F. Hamilton, Chief Judge.
A RGUED JUNE 6, 2008—D ECIDED O CTOBER 8, 2008
Before B AUER, R IPPLE and M ANION, Circuit Judges.
R IPPLE, Circuit Judge. The Coal, Ice, Building Material,
Supply Drivers, Riggers, Heavy Haulers, Warehousemen
and Helpers, Local No. 716 (“the Union”) filed charges
with the National Labor Relations Board (“NLRB”) against
employer Spurlino Materials, LLC (“Spurlino”), alleging
that Spurlino had committed multiple violations of the
2 No. 07-3925
federal labor laws. On March 21, 2007, the NLRB’s General
Counsel consolidated the charges against Spurlino and
issued a formal complaint.
On May 11, 2007, the NLRB’s Regional Director filed a
section 10(j) petition in the district court, seeking a prelimi-
nary injunction pending adjudication of the charges by
the NLRB. See 29 U.S.C. § 160(j). The district court held a
hearing on the petition and, on November 8, entered an
order enjoining Spurlino from engaging in a number of
unfair labor practices. For the reasons set forth in this
opinion, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
Spurlino, a full-service construction materials supplier,
produces and sells ready-mix concrete. In November 2005,
Spurlino acquired from another company, American
Concrete Co., three ready-mix concrete plants in the
Indianapolis area. Spurlino hired all or nearly all of the
employees who had been working for American Concrete
at each of these locations, and it maintained the seniority
lists that had been put in place by American Concrete.
After the acquisition, Spurlino employees Ron Eversole,
Gary Stevenson,1 Matt Bales and others contacted the
1
Stevenson is no longer employed by the company. The
General Counsel alleged, and the ALJ subsequently found, that
(continued...)
No. 07-3925 3
Union. The Union petitioned the Board for a union repre-
sentation election. Thereafter, Eversole, Stevenson and
Bales led the unionization effort at Spurlino; they solicited
union authorization cards from employees and spoke
to employees about the Union.
1. Spurlino’s Efforts to Undermine the Union
Prior to the election, Spurlino management allegedly
campaigned heavily to discourage its employees from
voting for union representation. Spurlino managers,
including manager Gary Matney, allegedly met individu-
ally with drivers to warn them that, if they voted for the
Union, things were going to get “ugly” at the company.
ALJ Tr. at 516. Multiple employees testified that Matney
had informed them that Spurlino successfully had
avoided unionization in the past and that, if the em-
ployees voted for the Union, the company would drag out
the contract negotiations and pay any fines that it might
incur. ALJ Tr. at 411-12, 600, 667. Spurlino’s human
resources manager also allegedly encouraged employees
to vote against the Union.
On January 13, 2006, employees at Spurlino’s Indianapo-
lis plants voted in a secret ballot election conducted by the
NLRB. Despite the efforts of the company to persuade
1
(...continued)
Stevenson’s discharge was in violation of the labor laws;
however, these allegations were not included in the Director’s
petition for injunctive relief. Therefore, we do not consider
them here.
4 No. 07-3925
them otherwise, a majority of the employees voted to be
represented by the Union. Soon thereafter, Matney alleg-
edly told an employee that the workers would not be
receiving a wage and benefit increase that Spurlino had
planned to implement because the employees had voted
for the Union. ALJ Tr. at 516, 577-78. Matney also
allegedly warned employees that things would be getting
much worse at the company.
After the election, the NLRB certified the Union as the
employees’ exclusive collective bargaining representative.2
Spurlino and the Union accordingly began negotiations
over their first labor contract in February 2006. Although
the Union and the company held thirteen bargaining
sessions between February 2006 and January 2007, the
negotiations made little progress, and, on the record
before us, the parties still have been unable to reach an
agreement. The Union contends that this lack of progress
is the result of an attempt by Spurlino to drag out negotia-
tions, consistent with its earlier threats.
Meanwhile, attendance at Union meetings by Spurlino
employees has declined significantly, from 12-15 employ-
ees in February 2006, to 2-4 employees by mid-2007.
According to testimony from employees, fears of being
seen at Union meetings and frustration with the lack of
2
There are approximately 35 employees in the bargaining unit.
Approximately 15 of these employees are drivers who work
from Spurlino’s Kentucky Avenue facility. Eversole, Stevenson
and Bales served as the Union’s employee bargaining com-
mittee members.
No. 07-3925 5
progress on a contract have caused this decline in atten-
dance.
2. Spurlino’s Discrimination Against Union Organizers
Spurlino’s alleged efforts to undermine the Union did not
end with the election. The charges in this case involve
allegations of discrimination against Union leaders and
refusal to bargain with the Union over changes in terms
and conditions of employment, specifically in the method
that Spurlino uses to assign work to its ready-mix concrete
truck drivers.
Spurlino ordinarily dispatches its concrete truck drivers
based on their position on a call list, which is ordered
according to seniority. For example, at all relevant times,
Union leader Ron Eversole has been first on Spurlino’s
call list because he is the most senior driver at the Ken-
tucky Avenue facility. Because of his position on the call
list, Eversole is dispatched first on any given work day.
The dispatcher then moves down the call list until all
drivers scheduled to work that day have been dispatched
at least once. After drivers deliver their first loads of
the day and return to the facility, they are dispatched to
other jobs on a first-back, first-out basis.
In December 2005, Spurlino was awarded a large
contract to provide ready-mix concrete for the construc-
tion of a new football stadium for the Indianapolis Colts.
Construction work on the stadium project was covered
by a labor agreement, the Project Labor Agreement for
Work Stabilization for Stadium and Convention Center
6 No. 07-3925
Expansion Construction (“PLA”), which was negotiated
by the numerous contractors and unions involved in the
project. As a condition of receiving the contract for the
stadium project, Spurlino was required to become a party
to the PLA and to abide by its terms when performing
work on the stadium.
The PLA required companies contracted to work on the
stadium project to pay wages and benefits greater than
those that Spurlino generally paid. In compliance with the
PLA, Spurlino paid its drivers a higher wage and more
generous benefits for work performed on the stadium
project than for the same work performed for other
Spurlino customers; therefore, the drivers generally
preferred to be dispatched to work on the stadium pro-
ject. Spurlino’s method for assigning drivers to the stadium
project thus determined who would benefit from the
higher wages provided under the PLA.
Spurlino initially serviced the stadium project by deliver-
ing concrete from its Kentucky Avenue plant, which is
four or five miles away from the stadium. The Union
requested that Spurlino dispatch drivers to the stadium
project by seniority, according to the call list. Spurlino
argued before both the ALJ and the district court that it
simply integrated the stadium project dispatches into its
regular seniority-based call list—if the stadium project
dispatch was the first dispatch, then it went to Eversole, if
it was the second it went to Mooney, and so on. Neverthe-
less, Spurlino also maintained the position that the
PLA governing the stadium project itself required that
No. 07-3925 7
seniority would play no role for purposes of the project.3
According to the Union, Spurlino allegedly manipulated
its dispatches to the stadium project in an effort to
punish Union leaders Eversole, Stevenson and Bales for
their Union activities. Specifically, the Director alleged that
Spurlino disregarded its usual “first-back, first-out” policy
and dispatched other drivers to the stadium project out
of order so that Eversole, Stevenson and Bales would not
receive these valuable assignments. Spurlino, on the
other hand, denies that it manipulated the dispatching
during this time period.
As the stadium project began to require greater volumes
of concrete, Spurlino decided to build a temporary and
3
The PLA stated:
2.3. . . . This Agreement (including the applicable bargaining
agreements listed in Attachment C, and successor agree-
ments thereto) represents the complete understanding of
the Parties with respect to the issues covered hereunder. The
provisions of this Agreement shall control the construction
of this Project and take precedence over and supersede
provisions of all the Unions’ collective bargaining agree-
ments, national, area, or local, which conflict with the terms
of this Agreement. However, the national, area, and local
collective bargaining agreements will govern all issues not
addressed in this Agreement.
....
3.12. Individual seniority will not be recognized or applied
to employees working on this Project.
R.19, Joint Ex. 4 at 12.
8 No. 07-3925
portable concrete plant on the stadium property. The
portable plant was dedicated to providing concrete for
the stadium project only, and it operated only on days
that the stadium project had large daily demands for
concrete. Again, because the drivers providing services for
the stadium project received higher wages and benefits
under the PLA, the portable plant was a highly desirable
work assignment. Accordingly, the method of selecting
employees who would work at that plant was important
to the employees, and the Union requested that the porta-
ble plant drivers be selected by seniority. Spurlino
declined to do so, citing the PLA.
Spurlino initially sought volunteers from the Kentucky
Avenue plant to work at the portable plant. Spurlino
managers informed the drivers that, if there were more
volunteers than positions available, then selection would
be based on the drivers’ skills, qualifications and past
performance. These considerations included performance
on a driver test, attendance records, timeliness, truck
cleanliness and overall attitude. Unlike Spurlino’s usual
practice, seniority would be used only to distinguish
between two otherwise equally qualified candidates.
Spurlino also allegedly informed the drivers that anyone
assigned to the portable plant would lose his seniority
at the Kentucky Avenue plant, even when the portable
plant was not in operation and he returned to the
Kentucky Avenue plant.
Despite the significant wage increase and benefits for
those drivers assigned to the portable plant, Bales did not
volunteer for one of these positions. He stated that he
No. 07-3925 9
declined to seek a position there because the employees
were told that they would lose their seniority at the
Kentucky Avenue facility if they transferred to the
portable plant. Eversole testified that he applied for a
portable plant position, but that Spurlino filled the
position without acknowledging his application.
Stevenson applied for one of the positions at the portable
plant. He, like the other volunteering drivers, was asked to
take a driving test on a rear-loading truck—the type
of truck that Spurlino wished to use at the portable
plant—to assist Spurlino in determining who had the
necessary skills, qualifications and past performance to
work at the portable plant. Terry Mooney refused to take
the driving test and had no prior experience driving
rear-loading trucks. Eric Kiefer also had no experience
with rear-loading trucks, and, during the driving test, he
broke the brakes on the truck. Stevenson, on the other
hand, performed well on the driving test and was high on
the seniority list.
On June 7, 2006, Spurlino announced that the portable
plant drivers would be Mooney, Kiefer and two other
employees, Thomerson and Penatello, who had worked
for Spurlino less than two months before they were
selected as portable plant drivers. Despite Stevenson’s
seniority and his high score on the driving test, Spurlino
did not assign him to the portable plant. According to
Spurlino, the four selected drivers had better overall
performance scores than the other drivers who had ap-
plied, referring to a thirteen-factor performance review
card completed by the company during the selection
process.
10 No. 07-3925
Soon thereafter, one of the original portable plant drivers
resigned from the company. Spurlino asked both Eversole
and Bales if they wished to replace him as a driver at the
portable plant. Both testified that they declined the posi-
tion when Spurlino’s management again told them that
they would lose their seniority status on the Kentucky
Avenue call list upon their return.
Around this time, Spurlino allegedly decided to create
a new position of “alternate/backup” driver at the portable
plant; however, it did not post this position or inform
the Union. Instead, it approached drivers individually
for the position and informed them that these alter-
nate/backup drivers would be allowed to keep their
places on the Kentucky Avenue call list because they
were merely alternates. Spurlino selected three drivers to
be alternate/backup drivers. One of these drivers had
been employed at Spurlino less than two months before
being given the job at the portable plant. Spurlino never
offered Union leaders Eversole and Bales the alternate/
backup driver position, allegedly because they already had
declined an offer to work at the portable plant.
The portable plant remained in operation from June 2006
until February 2007. Once demand for high daily volumes
of concrete dwindled at the stadium, however, Spurlino
closed the portable plant. Despite its initial proclamations
otherwise, after Spurlino closed the portable plant, it
reassigned the portable plant drivers to the Kentucky
Avenue facility and fully restored their previous seniority
there. The Director alleges that the company initially
misinformed the drivers that they would lose their senior-
ity so that the Union leaders, who were all high on the
No. 07-3925 11
seniority list, would be discouraged from applying for a
portable plant position.
B. Administrative and District Court Proceedings
In August 2006, the Union filed a series of charges
against Spurlino, alleging unfair labor practices. These
charges were consolidated by the General Counsel into a
formal NLRB complaint. The complaint included allega-
tions that the company had: (1) unlawfully discriminated
against Eversole, Bales and Stevenson because of their
union activities; (2) changed pre-existing policies of
assigning work based on seniority without bargaining
with the Union; and (3) unilaterally implemented an
evaluation procedure for purposes of assigning certain
work without bargaining with the Union.
The Board’s ALJ conducted a hearing on these charges
from April 24, 2007 to April 27, 2007, and then it declared
a recess until July 10, 2007. On May 11, 2007, the Board’s
Regional Director filed a section 10(j) petition in the
district court, requesting injunctive relief pending the
final decision of the Board. The ALJ then decided to
accelerate the conclusion of the administrative hearing,
and it heard evidence on May 30 and 31, 2007. Accordingly,
the Regional Director requested that the hearing on the
preliminary injunction in the district court be postponed
until June so that the district court could consider the
findings of the ALJ.
The district court conducted a hearing on June 22, 2007,
to hear evidence on the need for injunctive relief beyond
that presented at the administrative hearing. On November
12 No. 07-3925
8, 2007, the district court concluded that the testimony,
arguments and briefs presented in the district court, as
well as the record in the administrative proceeding,
weighed in favor of granting injunctive relief. Specifically,
the court noted that:
[T]he Director has shown a sufficient likelihood that
Spurlino engaged in at least several of the charged
unfair labor practices in violation of federal labor law.
The Director has introduced substantial evidence that
the company acted intentionally to punish publically
the principal union organizers for their activities and
to modify terms and conditions of employment unilat-
erally. The effect and intent have been to show all
employees in the bargaining unit that the newly-
elected union could not deliver any improvement
in wages and working conditions.
R.30 at 2.
The district court further concluded that preliminary
injunctive relief under section 10(j) was “ ‘just and proper’
because the company’s actions have had substantial effects
in discouraging union activity and demoralizing the
unionized employees.” Id. at 3. Accordingly, on November
8, 2007, the court entered an order enjoining Spurlino from:
(1) retaliating, through discriminatory job assignments
or otherwise, against leaders and members of the
[Union], based upon those persons’ union membership,
support, activity, or affiliation;
(2) acting unilaterally to change terms and conditions
of employment for those Spurlino Materials employees
in the bargaining unit represented by the union;
No. 07-3925 13
(3) failing and refusing to bargain in good faith with
the union over a collective bargaining agreement; and
(4) in any like manner interfering with, restraining, or
coercing employees’ exercise of their rights under
Section 7 of the National Labor Relations Act, 29 U.S.C.
§ 157, pending final resolution of the unfair labor
practice charges now pending against Spurlino Materi-
als, LLC based on activity in the company’s
Indianapolis-area facilities.
R.31 at 1-2. On December 4, 2007, Spurlino timely ap-
pealed.
On December 17, 2007, the ALJ issued a decision in the
underlying case. He concluded that Spurlino had violated
section 8(a)(3) by discriminating against Eversole, Bales
and Stevenson in job assignments at the portable plant.
He also found that Spurlino had violated section 8(a)(5)
because it unilaterally established unit positions, and the
selection criteria used to staff them, without bargaining
with the Union. An appeal of this decision currently is
pending before the NLRB.
II
DISCUSSION
A. The Decision to Grant Injunctive Relief
Section 10(j) of the National Labor Relations Act
(“NLRA”) authorizes a district court to order injunctive
relief pending the NLRB’s final disposition of an unfair
labor practices claim if such relief would be “just and
14 No. 07-3925
proper.” 29 U.S.C. § 160(j). The court looks to the same
factors to which it looks in other contexts when deciding
whether to grant injunctive relief: “the lack of an adequate
remedy at law, the balance of potential harms posed by
the denial or grant of interim relief, the public interest,
and the petitioner’s likelihood of success on the merits of
its complaint.” Bloedorn v. Francisco Foods, Inc., 276 F.3d 270,
286 (7th Cir. 2001) (citing Kinney v. Pioneer Press, 881 F.2d
485, 490 & n.3, 493 (7th Cir. 1989)); see also NLRB v. Elec-
tro-Voice, Inc., 83 F.3d 1559, 1566 (7th Cir. 1996), cert. denied,
519 U.S. 1055 (1997). The Regional Director is entitled
to interim relief when:
(1) the Director has no adequate remedy at law;
(2) the labor effort would face irreparable harm with-
out interim relief, and the prospect of that harm
outweighs any harm posed to the employer by the
proposed injunction;
(3) “public harm” would occur in the absence of
interim relief;
(4) the Director has a reasonable likelihood of prevail-
ing on the merits of his complaint.
Bloedorn, 276 F.3d at 286. The Director bears the burden of
establishing the first, third and fourth of these circum-
stances by a preponderance of the evidence. Id. The
second prong is evaluated on a sliding scale: The better
the Director’s case on the merits, the less its burden to
prove that the harm in delay would be irreparable, and
vice versa. Id. at 286-87.
We review the district court’s decision to grant interim
injunctive relief under section 10(j) for an abuse of discre-
No. 07-3925 15
tion. Bloedorn, 276 F.3d at 286; Electro-Voice, 83 F.3d at
1566. We examine the district court’s decision only to
ensure that it does not “depend[] on faulty legal premises,
clearly erroneous factual findings, or improper applica-
tion of the criteria governing preliminary injunctive
relief.” Electro-Voice, 83 F.3d at 1566 (quoting Kinney, 881
F.2d at 493).
1. Adequate Remedies at Law
As we noted in Bloedorn, “[s]ection 10(j) relief is an
extraordinary remedy . . . reserved for ‘those situations in
which the effective enforcement of the NLRA is threatened
by the delays inherent in the NLRB dispute resolution
process.’ ” 276 F.3d at 297 (quoting Szabo v. P*I*E Nation-
wide, Inc., 878 F.2d 207, 209 (7th Cir. 1989)). We first
consider whether the district court clearly erred when it
determined that the rights of the employees under the
NLRA would suffer irreparable harm from the passage
of time between the filing of charges and the resolution of
the complaint by the NLRB. Id.; see also Roland Mach. Co. v.
Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (“Only
if [the employees] will suffer irreparable harm in the
interim—that is, harm that cannot be prevented or fully
rectified by the final judgment after trial—can [they] get
a preliminary injunction.”).
The process of NLRB resolution has long been recognized
as extraordinarily slow—indeed, the purpose of section
10(j) was to prevent employers from taking advantage
of this significant passage of time in their efforts to quash
16 No. 07-3925
union support in the interim. See NLRB v. P*I*E Nationwide,
Inc., 894 F.2d 887, 891 (7th Cir. 1990); Szabo, 878 F.2d at 209-
10; Kinney, 881 F.2d at 493-94. The longer that an
employer is able to chill union participation or avoid
bargaining with a union, the less likely it is that the union
will be able to organize and to represent employees
effectively once the NLRB issues its final order. See
Bloedorn, 276 F.3d at 299; see also Electro-Voice, 83 F.3d at
1573; Schaub v. W. Mich. Plumbing & Heating, Inc., 250 F.3d
962, 971 (6th Cir. 2001) (noting the significant effects of
chill on the ability of a union to organize). This risk is
particularly true in cases involving fledgling unions, where
the passage of time is especially critical. See Arlook v. S.
Lichtenberg & Co., Inc., 952 F.2d 367, 373 (11th Cir. 1992).
Here, the district court, noting the precipitous decline
in Union participation, credited the testimony of many
Spurlino employees who stated that they were hesitant to
attend Union meetings because they feared discrimina-
tion. If Spurlino is allowed to proceed in its quest to defeat
the Union before it becomes established, the court found,
then merely requiring the company to pay its employees
damages after the fact will not remedy the adverse
impact to the Union and the employees in the interim
period.
Spurlino contends that immediate injunctive relief is
unnecessary in this case. In support, it notes that the
Regional Director filed a motion to postpone for a few
weeks the district court’s hearing on the preliminary
injunction, which, in Spurlino’s view, shows that the need
for injunctive relief is not urgent. See Schaub v. Detroit
No. 07-3925 17
Newspaper Agency, 154 F.3d 276, 280 (6th Cir. 1998) (holding
that the Director’s 18-month delay in filing a petition
for injunction showed that interim relief was unnecessary);
but see Gottfried v. Frankel, 818 F.2d 485, 495 (6th Cir. 1987)
(holding that delay is a factor that may be considered, but
it is not particularly probative; the question is whether
interim relief is necessary to restore the parties to the
status quo). Spurlino also contends that evidence in the
record shows that the Union is not in precipitous decline,
and it suggests that any reduction in attendance at Union
meetings is because the meetings are held on Friday
evenings, a popular time for other activities.
Spurlino’s arguments, however, show only that there
may be an alternative view of the evidence presented to
the district court; they do not establish that the district
court’s view of the evidence was clearly erroneous. After
a review of the record, we must conclude that the
district court did not clearly err when it found that an
award of damages in future years would be an inade-
quate remedy in this case.
2. Balance of Harms
For the same reasons that the district court concluded
that the Director has no adequate remedy at law, it also
concluded that the employees are likely to suffer sub-
stantial and irreparable harm if Spurlino is allowed to
continue its effort to subvert the Union until the case is
resolved by the NLRB. As we noted in Electro-Voice:
The deprivation to employees from the delay in bar-
gaining and the diminution of union support is im-
18 No. 07-3925
measurable. That loss, combined with the likelihood
that the Board’s ability to rectify the harm is diminish-
ing with time, equals a sufficient demonstration of
irreparable harm to the collective bargaining process.
83 F.3d at 1573.
Spurlino first contends that the Director cannot show a
likelihood of irreparable harm during the interim period
because the actions about which the employees complain
largely involved assignments to the portable plant, which
is no longer in operation. The district court disagreed,
however, and noted that Spurlino continues to make
daily decisions about other work assignments and the
terms and conditions of employment. The court concluded
that the Director had presented evidence of Spurlino’s
clear hostility toward the Union, as well as a pattern of
discrimination against employees active in the Union. It
found that there was a substantial risk that Spurlino would
continue its efforts to undermine the Union while the
dispute was pending before the NLRB, and that irreparable
harm was likely to result. After a review of the record, we
cannot say that the district court’s view of the evidence
was clearly erroneous.
Spurlino next contends that an injunction would present
a risk of substantial and irreparable harm to the company
because it would subject it to contempt proceedings upon
any further allegations of labor law violations. Although
an injunction certainly would restrict Spurlino’s ability to
engage in unfair labor practices, as well as perhaps
subject it to an increased risk of unwarranted contempt
proceedings, Spurlino does not explain why this potential
No. 07-3925 19
harm would be irreparable. Furthermore, even if the com-
pany were at risk of irreparable harm, Spurlino makes
no effort to weigh this risk against the risk of harm to the
Union.
Additionally, the strength of the Director’s case on the
merits affects a court’s assessment of the relative harms
posed by the grant or denial of injunctive relief: The
greater a party’s prospects of prevailing on the merits,
the less compelling a showing of irreparable harm is
required. Bloedorn, 276 F.3d at 286-87; Electro-Voice, 83 F.3d
at 1568. As we discuss below, the district court’s conclu-
sion that the Regional Director has a high likelihood of
success on the merits is supported by the record; accord-
ingly, he need not make an extremely strong showing of
irreparable harm in order to warrant granting interim
relief.
3. Public Interest
The district court concluded that granting preliminary
injunctive relief here was in the public interest. As we
noted in Electro-Voice, “[t]he public interest is furthered, in
part, by ensuring that an unfair labor practice will not
succeed because the Board takes too long to investigate
and adjudicate the charge.” 83 F.3d at 1574 (internal
quotation marks and citation omitted). Spurlino presented
no evidence of public harm to challenge the district court’s
decision. Accordingly, we conclude that the district court
correctly determined preliminary injunctive relief in this
case to be in the public interest.
20 No. 07-3925
4. Likelihood of Success on the Merits
We have held that, “in evaluating the likelihood of
success, it is not the district court’s responsibility, nor is it
ours, to rule on the merits of the Director’s complaint”;
deciding the merits of the case is the sole province of the
Board. Bloedorn, 276 F.3d at 287. Our inquiry is confined
to the likelihood that the Director will prevail before the
Board. Id. “For our purposes, we must decide whether the
Director has a better than negligible chance of success:
whether the Director has ‘some chance’ of succeeding on
the merits.” Electro-Voice, 83 F.3d at 1568. In evaluating
this likelihood, “given the Board’s expertise in matters
of labor relations, we must be ‘hospitable’ to the General
Counsel’s view of the law.” Bloedorn, 276 F.3d at 287(citation omitted). We also must give some measure of
deference to the view of the ALJ, id. at 288,4 as well as our
traditional deference to the findings of the district court.
On this appeal, we are asked only to determine whether
the district court clearly erred when it concluded that
the Regional Director’s evidence was sufficient to
establish a “better than negligible” chance of success on
the merits. Electro-Voice, 83 F.3d at 1570.
4
The ALJ’s opinion certainly is relevant to the propriety of
section 10(j) relief. Evaluating the Director’s likelihood of
success calls for a predictive judgment about how the NLRB
is likely to rule. The ALJ is the NLRB’s first-level decisionmaker,
and, “[h]aving presided over the merits hearing, the ALJ’s
factual and legal determinations supply a useful benchmark
against which the Director’s prospects of success may be
weighed.” Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288
(7th Cir. 2001).
No. 07-3925 21
The district court considered the entire record, including
the testimony of Union supporters, employees either
neutral or against the Union and management. It con-
cluded that the Director had made a strong showing of a
likelihood of success on the merits on the retalia-
tion/discrimination charge. It also concluded that the
Director had made a strong showing of likelihood of
success on the merits of the charge that Spurlino made
unilateral changes in the terms and conditions of employ-
ment without bargaining over those issues. Finally, the
court concluded that the Director had made “at least a
substantial showing” that Spurlino had not been bargain-
ing in good faith. R.30 at 23.
Spurlino’s main contention is that the PLA that gov-
erned the stadium project superceded any obligations
that the company might have had to bargain with the
Union or to respect its employees’ seniority; the company
also contends that the PLA provided it with the right to
assign the stadium project work to whomever it pleased.
In support of its contention, Spurlino points to section 3.12
of the PLA, which states: “Individual seniority will not be
recognized or applied to employees working on the
Project.” R.19, Joint Ex. 4, at 12.
The district court, however, considered this argument
and concluded that “Spurlino’s position misinterprets the
PLA.” R.30 at 18. In the view of the district court, the PLA
provision barring individual seniority meant only that
there would be no effort to recognize seniority as
between employees of different employers working at the
stadium site. Such a provision was sensible, it noted,
22 No. 07-3925
considering that managing the large stadium project
likely would be nearly impossible if individual seniority
had to be recognized among different employers. The
court concluded that the many major unions whose
members worked on the stadium had not surrendered all
of their employees’ internal seniority rights by signing on
to the PLA. Id. It noted that other provisions of the agree-
ment specified that, unless there was a specific conflict
between the PLA and existing collective bargaining
agreements, the collective bargaining agreements would
remain in effect.
The ALJ took the same view as the district court. He also
concluded that, even if Spurlino had no obligation to
assign the most senior drivers to the portable plant, the
company’s treatment of the portable plant drivers’ overall
seniority still violated section 8(a)(5) because an em-
ployee’s work at the stadium project adversely affected
the terms and conditions of the rest of his employment
with the company (i.e., he was moved to the bottom of the
Kentucky Avenue seniority list). Accordingly, we cannot
say that the district court’s interpretation of the PLA
was unreasonable.
In sum, we conclude that the district court properly
considered the relevant factors when deciding whether
to issue a preliminary injunction. Spurlino failed to show
that the court relied upon an error of law or a clearly
erroneous interpretation of the evidence in the record.
Therefore, we hold that the district court did not abuse its
discretion when it granted the Director’s motion for
interim injunctive relief under section 10(j).
No. 07-3925 23
B. Scope of the Injunction
Although we review the decision to grant injunctive
relief for an abuse of discretion, “whether the terms of an
injunction fulfill the mandates of Rule 65(d) is a question
of law that we review without deference.” See Int’l Rectifier
Corp. v. Ixys Corp., 383 F.3d 1312, 1315 (Fed. Cir. 2004).
Federal Rule of Civil Procedure 65(d) requires that
injunctions be stated specifically and “describe in reason-
able detail—and not by referring to the complaint or other
document—the act or acts restrained or required.” Injunc-
tions that “merely instruct the enjoined party not to
violate a statute” generally are overbroad, increasing “the
likelihood of unwarranted contempt proceedings for
acts unlike or unrelated to those originally judged unlaw-
ful.” Ixys, 383 F.3d at 1315.
As the Supreme Court has explained:
A federal court has broad power to restrain acts which
are of the same type or class as unlawful acts which
the court has found to have been committed or whose
commission in the future unless enjoined, may fairly
be anticipated from the defendant’s conduct in the
past. But the mere fact that a court has found that a
defendant has committed an act in violation of a
statute does not justify an injunction broadly to obey
the statute and thus subject the defendant to con-
tempt proceedings if he shall at any time in the future
commit some new violation unlike and unrelated to
that with which he was originally charged.
....
24 No. 07-3925
To justify an order restraining other violations it must
appear that they bear some resemblance to that which
the employer has committed or that danger of their
commission in the future is to be anticipated from
the course of his conduct in the past.
NLRB v. Express Pub. Co., 312 U.S. 426, 435-37 (1941).
Spurlino objects to paragraph 1 of the injunction because
it bars retaliation against all members of the Union,
“through discriminatory job assignments or otherwise.” R.31
at 1. The complaint, it notes, merely alleged that Spurlino
had discriminated against Union leaders Eversole, Bales
and Stevenson—not all the other members of the Union.
Spurlino contends that the district court had no reason to
believe that it was likely to retaliate against others. It also
submits that the court’s use of “otherwise” is vague and
overbroad. Similarly, Spurlino objects to paragraph 2 of the
injunction because it enjoins all unilateral actions to
change the terms and conditions of employment, although
the only allegations of unilateral action in the complaint
involved the portable plant. Spurlino submits that there
is no evidence that the company has taken or will take
other unilateral actions, and the court’s prohibition
against all unilateral action therefore is overbroad.
In our view, the district court reasonably found a contin-
uous and deliberate effort on the part of Spurlino to
undermine the Union organization effort. Accordingly, it
concluded that there was a likelihood that the company
would act further to thwart the Union’s efforts; it also
found that Spurlino was likely to refuse to negotiate with
the Union on the terms and conditions of employment
No. 07-3925 25
in the future. Given these specific findings, supported by
evidence in the record, paragraphs 1 and 2 do not exceed
the scope of the court’s authority to enjoin similar actions
by the company. See Express, 312 U.S. at 435 (“A federal
court has broad power to restrain acts which are of the
same type or class as unlawful acts which the court has
found to have been committed or whose commission in
the future unless enjoined, may fairly be anticipated
from the defendant’s conduct in the past.”).
Spurlino also objects to paragraph 3 of the injunction on
the ground that it is overbroad. Although the Director’s
petition for an injunction included no allegations of a
general refusal to bargain, the district court found that
Spurlino had refused to bargain in good faith throughout
the eighteen months of contract negotiations with the
Union: Therefore, it enjoined the company from “failing
and refusing to bargain in good faith over a collective
bargaining agreement.” R.31 at 2. Spurlino contends that
the injunction against a general failure to bargain was
unwarranted because it was broader than the specific
charges in the complaint.
The cases upon which Spurlino relies are not controlling.
Spurlino invites our attention to Gottfried v. Frankel, 818
F.2d 485 (6th Cir. 1987), which vacated a part of an injunc-
tion that prohibited the employer from failing to bargain
because no failure-to-bargain section 8(a)(5) claim was
alleged. The court there emphasized, however, that the
parties had stipulated that this was not a “refusal to
bargain” case, and the district court had characterized all
of the allegations as violations of sections 8(a)(1) or (3), and
26 No. 07-3925
not section 8(a)(5). Id.; see also Gaddy v. Abex Corp., 884
F.2d 312, 318 (7th Cir. 1989) (holding that an injunction
against retaliation was improper because there never
was any allegation of retaliation by the defendants). Here,
on the other hand, the Director did allege a violation of
section 8(a)(5). See R.1 at 6. He also introduced evidence
that the company intentionally had been dragging out
negotiations and undermining Union support within the
company. The district court concluded from this evidence
that there had been a pattern of refusal to bargain on the
part of the company and that further refusals were likely:
Keeping in mind this court’s limited role, for present
purposes, the court finds that the weight of evidence
tends to favor the Board’s position on this question.
Eversole and Bales have no incentive to drag out the
bargaining. Spurlino’s conduct in making unilateral
changes without bargaining over them, and the sub-
stantial evidence of a broader campaign to undermine
the union by means both fair and foul, together per-
suade the court that Spurlino appears not to be bar-
gaining in good faith.
R.30 at 21. The district court determined that this element
of the injunction was necessary “to remedy the company’s
long strategy of delay and obstruction of the union’s
ability to represent its members effectively.” Id. at 28.
Therefore, its injunction against similar refusals to
bargain collectively was within its discretion. The Director
brought a claim regarding a specific instance of
Spurlino’s refusal to bargain, and the district court rea-
sonably determined that similar refusals were likely.
No. 07-3925 27
“[H]aving found in this case that respondent has refused
to bargain,” Express, 312 U.S. at 432, the district court acted
within its authority when it enjoined generally additional
refusals to bargain. See also id. at 435; NLRB v. Mayrath Co.,
319 F.2d 424, 428 (7th Cir. 1963).
Finally, Spurlino contends that paragraph 4 of the
injunction is overbroad because it enjoins the company
from “in any like manner interfering with, restraining, or
coercing employees’ exercise of their rights under Section
7 of the [NLRA].” R.31 at 2. Spurlino contends that this
generalized provision is strikingly similar to the order,
struck down by the Supreme Court in Express, which
enjoined the company from “in any manner interfering
with, restraining, or coercing its employees in the exercise
of their rights . . . as guaranteed in Section 7 of the Act.”
312 U.S. at 430.5
5
See also NLRB v. Ampex Corp., 442 F.2d 82, 86-87 (7th Cir. 1971)
(striking as overbroad an order that prevented the company
from acting “in any other manner” to violate the Act); NLRB v.
Elliott-Williams Co., 345 F.2d 460, 464-65 (7th Cir. 1965) (striking
down as overbroad a portion of an order that enjoined an
employer from “in any other manner” interfering with its
employees’ organizational and bargaining rights); NLRB v.
Thompson Ramo Woolridge, Inc., 305 F.2d 807, 810-11 (7th Cir.
1962) (refusing to enforce an order that prohibited violations
of the statute “in any other manner”); NLRB v. J.I. Case Co., 134
F.2d 70, 73 (7th Cir. 1943) (refusing to enforce an order restrain-
ing violations of the act “in any manner”); NLRB v. Stone, 125
F.2d 752, 757 (7th Cir. 1942) (similarly striking down an injunc-
tion prohibiting violations “in any other manner”).
28 No. 07-3925
The provision at issue in this case, at first blush, does
appear strikingly similar to the injunction found to be
overbroad in Express; nevertheless, there is one important
distinction. The order struck down in Express prohibited
the company from “in any manner” violating the Act,
312 U.S. at 430; the district court’s order in this case,
however, is conditioned by the words “in any like manner.”
R.31 at 2. Although the Supreme Court rejected broad
injunctions simply “to obey the statute,” it expressly
noted that, when an employer is found to have violated
the labor laws, district courts maintained broad authority
to restrain employers from committing “other related
unlawful acts.” Express, 312 U.S. at 435-36.
In NLRB v. Mutual Maintenance Service Co., Inc., 632 F.2d
33, 37 n.5 (7th Cir. 1980), we enforced an order of the
NLRB that prevented the employer from, “in any like
manner, interfering with, restraining or coercing its
employees in the exercise of the rights under Section 7 of
the Act.” Although we did not address specifically
whether this provision was overbroad, we did note with
approval the fact that the NLRB’s final order had substi-
tuted the “narrower language” of “in any like manner” for
the ALJ’s recommended “any other manner.” Id. (emphasis
added). Similarly, in Electromation, Inc. v. NLRB, 35 F.3d
1148, 1155 (7th Cir. 1994), we enforced an order with
almost identical language to the order in this case. There,
the Board’s order required the company to: “(1) cease
and desist from dominating, assisting, or otherwise
supporting the action committees and in any like manner
interfering with, restraining, or coercing employees in
No. 07-3925 29
the exercise of their Section 7 rights.” Id.; see also NLRB v.
H.P.&T. Inc., 947 F.2d 945 (6th Cir. 1991); NLRB v. Aquatech,
Inc., 926 F.2d 538, 539 (6th Cir. 1991) (enforcing similar
orders).
The injunction at issue here prohibits only those actions
similar to the violations already committed by Spurlino;
it does not encompass unrelated violations of the NLRA. It
is therefore supported by our case law. Accordingly, we
must hold that the injunction issued in this case is suffi-
ciently specific to survive scrutiny under Federal Rule
of Civil Procedure 65(d) and the standard set forth in
Express.
Conclusion
For the reasons explained in this opinion, we affirm
the judgment of the district court.
A FFIRMED
30 No. 07-3925
M ANION, Circuit Judge, concurring. I write separately
simply to reiterate that the third paragraph of the injunc-
tion does not enjoin any refusals to bargain, but, as the
court holds, supra at 26, only those refusals to bargain
that are similar to those alleged by the Director and found
by the district court. The Director alleged in its petition
that Spurlino created the positions of portable batch plant
driver and back-up portable batch plant driver without
giving prior notice to the Union and without affording
the Union an opportunity to bargain with Spurlino over
those positions. Pet. for Inj. 5-6. Notably, the Director
did not allege that Spurlino was engaging in overall bad-
faith bargaining. With that in mind, I join the court’s
opinion in full.
10-8-08