Spurlino Materials, LLC and Spurlino Materials of Indianapolis, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 15, 2011

25-CA-031565 (N.L.R.B. Mar. 15, 2011)

JD–13–11
Indianapolis, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SPURLINO MATERIALS, LLC; or SPURLINO
MATERIALS OF INDIANAPOLIS, LLC; or BOTH
AS A SINGLE EMPLOYER
and Case 25-CA-31565
COAL, ICE, BUILDING MATERIAL,
SUPPLY DRIVERS, RIGGERS, HEAVY HAULERS,
WAREHOUSEMEN AND HELPERS,
LOCAL UNION NO. 716, a/w INTERNATIONAL
BROTHERHOOD OF CHAUFFEURS, TEAMSTERS,
WAREHOUSEMEN AND HELPERS OF AMERICA
Kimberly R. Sorg-Graves, Esq.,
for the General Counsel
James H. Hanson, Esq., and A. Jack Finklea, Esq.
(Scopelitis, Garvin, Light, Hanson & Feary, P.C.),
for the Respondents
Geoffrey S. Lohman, Esq. and Neil E. Gath, Esq.
(Fillenworth, Dennerline, Groth & Towe),
for the Charging Party
DECISION
Statement of the Case
JEFFREY D. WEDEKIND, Administrative Law Judge. The complaint in this case
alleges that Spurlino Materials, LLC (SM) or Spurlino Materials of Indianapolis, LLC (SMI), or both
as a single integrated enterprise, violated Section 8(a)(3) and (1) of the Act by refusing to
immediately reinstate employees who engaged in a 9-day strike in early August 2010. The
General Counsel contends that the employees were entitled to immediate reinstatement to their
former positions, displacing if necessary any permanent replacements, because the strike was an
unfair labor practice strike that was caused by SM’s and/or SMI’s failure to reinstate a prominent
union supporter who was unlawfully discharged in February 2007.1
SM and SMI deny that there was any legal duty to displace the permanent replacements
and immediately reinstate the strikers at the conclusion of the strike. They contend that the strike
was actually an economic strike in support of the employees’ contract demands. They further
contend that it was an unprotected partial strike because it excluded a particular jobsite that was
covered by a project labor agreement. Finally, they also deny the “single employer” allegations,
contending that SMI is the sole employer of the employees.

1 The charge was filed on August 13, and the complaint issued on November 5, 2010. The
complaint originally named only SM as the Respondent, but was amended on January 5, 2011 to
allege that the term “Respondent” referred “to Spurlino Materials, LLC; and in the alternative to
Spurlino Materials of Indianapolis, LLC; and in the alternative to Spurlino Materials, LLC and
Spurlino Materials of Indianapolis, LLC, a single integrated enterprise” (GC Exh. 1(q)). The
caption was subsequently amended at the hearing consistent with this allegation and FRCP 10(a).
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Following a prehearing conference, the case was tried before me on January 11–14 and
February 3, 2011, in Indianapolis, Indiana.2 Thereafter, the General Counsel, the Charging Party,
and the Respondents filed posthearing briefs. Based on the briefs and the entire record,3
including my observation of the demeanor of the witnesses,4 for the reasons set forth below I find
that SM and SMI are a single employer and that they violated the Act as alleged.
Findings of Fact
I. Jurisdiction
SM and SMI are limited liability companies with offices in Ohio and Indiana, respectively.
Both supply and deliver ready mix concrete. SM and SMI admit, and I find, that each has
purchased and received over $50,000 in goods from directly outside their respective states during
the past 12 months, and that each is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. SM and SMI also admit, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. The Complaint Allegations
A. Background
As indicated above, both SM and SMI are engaged in the business of supplying and
delivering ready mix concrete to construction sites. SM was formed first, in 2000, and SMI in late
2005. Each was formed as an Ohio limited liability company (LLC), with a principal office in Ohio
and the same designated manager, James Spurlino. At all relevant times, Spurlino has also been
the majority owner and president of both companies. (GC Exhs. 43, 45; Tr. 6–7, 336, 364–370,
383–385, 464–468, 476–478, 563–565.)
As its name suggests, however, SMI actually operates primarily in and around
Indianapolis, Indiana, approximately a 2-hour drive from SM’s facility in Middletown, Ohio. SMI
also has its own, onsite operations manager, Jeff Davidson. (Tr. 54–55, 333, 463–469, 567.)
Further, unlike SM’s employees, SMI’s employees are represented. Pursuant to an election, the
Union was certified as the exclusive bargaining representative of the drivers and plant
operators/batch men at SMI in January 2006, a few months after SMI commenced operations.

2 By agreement of all parties, I held the last, relatively short February 3 session by
videoconference from an NLRB resident office in Region 12.
3 In the absence of any objection, the transcript is corrected as set forth in my February 17,
2011 Notice to Show Cause (ALJ Exh. 1).
4 Where the record revealed substantial differences between witnesses as to significant
matters, I have specifically addressed them. As for other, less important differences or matters,
the reader may infer that I credited the testimony cited, to the extent it supports my factual
findings, and discredited contrary testimony. In making my credibility findings, I considered, as
appropriate, not only the demeanor of the witnesses, but their apparent interests, if any, in the
proceeding, and whether their testimony is corroborated or consistent with the documentary
evidence and/or the established or admitted facts. I have also considered “inherent probabilities,
‘and reasonable inferences which may be drawn from the record as a whole.’” Daikichi Corp.,
335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003) (unpub.), quoting Shen
Automotive Dealership Group, 321 NLRB 586, 589 (1996). See also NLRB v. Cutting, Inc., 701
F.2d 659, 663 (7th Cir. 1983).
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SMI and the Union began negotiating their first collective-bargaining agreement shortly
after the Union was certified. However, the negotiations proved unsuccessful; although the parties
continued to meet and bargain through August 2009, the date of their last negotiating session,
they failed to reach any agreement (Tr. 21, 87–89, 145, 185, 594, 618; R. Exh. 10).5 The only
contract that has covered the unit employees’ terms and conditions of employment during the
relevant period is a project labor agreement (PLA) for the stadium and convention center
expansion project in downtown Indianapolis, to which both SMI and the Union are signatory, and
which applies only to work performed on the project (Jt. Exhs. 2, 3; Tr. 621, 663).
During this period, the Union also filed a series of unfair labor practice charges. The first of
these charges, relating to vacation pay and other employee benefits such as coffee and a
breakroom, was resolved pursuant to a settlement (Tr. 89–91, 135–140, 205–206, 625). The
second series of charges (Cases 25-CA-30053 et al.) were filed beginning in August 2006 and
alleged several violations of Section 8(a)(1), (3), and (5) of the Act, including the 8(a)(3) discharge
of one of the Union’s most prominent supporters, Gary Stevenson, in February 2007. Following
an investigation, the General Counsel issued complaints on these charges in March and July
2007. However, notwithstanding that the 2006 certification had named SMI as the employer, the
complaints named SM as the respondent employer of the employees, and SM’s answers admitted
that it was their employer.
Following a hearing, in December 2007, Administrative Law Judge Ira Sandron issued a
decision finding that SM did, in fact, commit most of the alleged violations, including the unlawful
discharge of Stevenson.6 Approximately a year later, in March 2009, a two-member Board
affirmed the decision in substantial part, including the findings and recommended remedial order
regarding Stevenson.7 Specifically, the Board ordered SM, within 14 days, to offer Stevenson “full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges previously enjoyed.” It also
required SM to make him whole for any lost earnings and benefits, with interest. Spurlino
Materials, LLC, 353 NLRB 1198.
SM and the General Counsel subsequently filed cross-applications for review and
enforcement of the Board’s decision and order with the Seventh Circuit. Thereafter, around
September 2009, at the direction of the court, the parties entered into settlement discussions.
However, like the earlier negotiations over a contract, the settlement discussions over the unfair

5 The attorneys for the Union and SMI met one later time, around February 2010; however,
they met without the parties’ bargaining representatives, and the purpose of the meeting was just
to make a list of open issues. (Tr. 89–90, 133, 135–142.)
6 In the meantime, the General Counsel, on behalf of the Board, petitioned the Federal district
court for a temporary injunction under Section 10(j) of the Act. The court issued the requested
injunction in November 2007, which was affirmed by the Seventh Circuit in October 2008. The
injunction ordered SM to cease and desist from committing unfair labor practices pending the
Board’s final decision in the cases. However, the injunction did not require the immediate
reinstatement of Stevenson, apparently because the petition did not request any affirmative
interim relief. See Lineback v. Spurlino Materials, LLC, 546 F.3d 491 (7th Cir. 2008), affirming
2007 WL 3334786 (S.D. Ind., Nov. 8, 2007).
7 Section 3(a) of the Act (29 U.S.C. Sec. 153(a)) provides that “the Board shall consist of five
. . . members, appointed by the President by and with the advice and consent of the Senate.”
However, the Board’s complement fell to two after the terms of the other members expired in
December 2007, and was not restored to three or more until April 2010.
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labor practices failed to bear fruit. Accordingly, beginning March 30, 2010, the parties began filing
their appellate briefs in accordance with the court’s briefing schedule. (Tr. 92, 123–124, 146).
In the meantime, however, in June 2010, the Supreme Court issued its opinion in New
Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that the two-member Board lacked authority
to issue decisions. In light of the Supreme Court’s opinion, on July 8, 2010, the Seventh Circuit
remanded the Stevenson case back to the Board. NLRB v. Spurlino Materials, 2010 WL
4069478.
Approximately a month later, on August 9, 2010, a newly constituted three-member Board
panel issued another decision reaffirming the prior, March 2009 decision and order. Spurlino
Materials, LLC, 355 NLRB No. 77. The case is now back before the Seventh Circuit for review
and enforcement (Case No. 10-3049, oral argument held January 11, 2011).
B. The Strike
In March 2010, unit employees began calling the Union’s president, Jim Cahill, to inquire
about what was going on with the unfair labor practice case and the contract negotiations.
According to Cahill, the employees seemed “frustrated about everything.” He therefore decided to
call a union meeting to update the employees and to take a vote on whether to engage in an
unfair labor practice (ULP) strike (Tr. 146–147, 162–165, 183).8
The meeting was held on May 13 at the union hall in Indianapolis. About 13 unit
employees attended (Tr. 97, 148, 204, 251; R. Exh. 14). After brief opening remarks, the meeting
was turned over to the Union’s attorney in the unfair labor practice cases, Geoffrey Lohman.
Lohman gave an update on the status of those cases. He told them about the recent
unsuccessful attempt to negotiate a resolution at the Seventh Circuit. He also gave them an
estimate of how long the litigation might continue. He noted in this regard that neither the Board
nor the Union had yet filed their briefs to the court; that it would take some time for the court to
issue a decision; that there could be additional appeals from that decision, including possibly
seeking review by the Supreme Court; and that there could be additional delay to determine the
backpay owed. In sum, he told them it might “still take years to get the matter fully litigated and
concluded.” (Tr. 99–100, 149, 251.)
Lohman then took questions from the employees. A number of questions were asked
about various issues, including the pending Seventh Circuit case, the earlier case that was settled
involving vacation pay, coffee, and the breakroom, and a grievance. There was also at least one
question about the status of the contract negotiations. Lohman therefore gave an update on that
as well. He described what had occurred at the last bargaining session in August 2009, which he
had attended with Cahill and the employee representatives, and what the open issues were. He

8 To the extent there is any conflict in the record about whether the Union planned in advance
to take a ULP-strike vote at the meeting, I find that it did. Employee Mooney testified that he was
told by the union steward (Bales), who had been enlisted by Cahill to notify employees of the
meeting, that they were going to discuss striking at the meeting (Tr. 164, 220). Further, Cahill
admittedly brought strike ballots and generic ULP-strike picket signs to the meeting, and
suggested that the employees take a ULP-strike vote during the meeting (Tr. 165–169). See also
employee Poindexter’s testimony (Tr. 251–252, 263).
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advised the employees that the Union was still waiting for a response on those issues from the
Company. (Tr. 87, 100–102, 116–117, 122, 149, 187, 205–207, 232.)9
Some of the employees also made statements that they needed to do something to get the
Company to comply with the Board’s order and resume contract negotiations (Tr. 149). After
responding to questions, Lohman therefore discussed the possibility of engaging in a strike. He
explained the difference between a ULP strike and an economic strike and the legal ramifications
of each. Specifically, he told them that the Company would be legally obligated to reinstate them
on request if the strike was ultimately determined to be a ULP strike, but not if it was an economic
strike and the company had hired replacements. He advised them that the Union was therefore
recommending that, if there was going to be a strike, it be a ULP strike; that the Company’s unfair
labor practices be the reason for the strike. (Tr. 100–101, 124–125, 150, 169, 205–206, 228–231,
252, 265.) He further advised them that they should have a defined goal. It was therefore
recommended that getting Gary Stevenson reinstated be the immediate goal of a ULP strike. (Tr.
171–174, 194–195, 205–206, 215, 263.)
The issue was then put to a vote, i.e. whether the employees wanted to engage in a ULP
strike. The employees were each given a secret ballot, which they could check “YES” or “NO” and
place in a ballot box at the front of the room. The votes were unanimous in favor. (Tr. 102, 150–
152, 163, 169, 208, 252; R. Exh. 14.)
Following the vote, Lohman and Cahill emphasized to the employees the importance of
doing everything correctly; that, because it was not an economic strike, there were certain rules
they needed to follow to make sure they did not lose their jobs (Tr. 129, 205–206, 209; R. Exh.
14). Cahill also addressed when the strike would occur. He explained to them that they could not
go on strike the next day because the Company was sure to find out about the union meeting and
be ready for the strike. He also noted that a strike at that time would have less impact because
the weather was bad and work was sporadic. He said he would let the employees know when the
time was right (Tr. 102, 129, 151–152, 209, 253; R. Exh. 14).
The Company apparently did, in fact, learn of the union meeting; indeed, several days
later, on May 19, SMI Operations Manager Davidson called a mandatory meeting at the Kentucky
Avenue facility to address the matter.10 Between 15 and 20 employees attended. Davidson read
and distributed a memorandum to the employees entitled “Strike Information.” The memo stated
that “rumors” had been circulating of a strike vote, which “surprise[d]” and “baffle[d]” the company.
It briefly discussed the history of the parties’ contract negotiations, noting that the parties had last
met in August 2009 and that the Union had promised a counterproposal but never provided one.
It notified the employees that “the Company will continue to operate during any strike,” and “[i]f
you engage in an economic strike, the Company has the legal right to temporarily or permanently
replace any striker.” The memo, however, made no mention of the unfair labor practice charges,
or what the Company might do if the employees engaged in a ULP strike. (R. Exh. 10; Tr. 244,
599–600, 626.)

9 There is no record evidence of any complaint or finding that the Company has negotiated in
bad faith.
10 Unless otherwise indicated, all references to the SMI “facility” or “plant” refer to the Kentucky
Avenue facility.
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After Davidson read the memo, a number of employees asked questions, mostly about the
contract negotiations, which Davidson attempted to answer (Tr. 601–604).11 A few days later, on
May 21, Davidson also distributed another memo providing “additional information” in response to
questions raised at the meeting. Among other things, it advised the employees that Spurlino
himself, as well as other designated company bargaining representatives, had met and bargained
in good faith with the Union on numerous occasions; denied, as suggested by one question, that
the parties had ever agreed to all the terms of a contract except a $1000 signing bonus; and
stated that the Company would “continue to meet upon requests at every mutually agreeable time
and place.” (R. Exh. 11; Tr. 605–606.)
Approximately 10 weeks later, Cahill was alerted by the union steward (Bales) that SMI
had a “big job” that was going to start on August 3 “rain or shine.”12 Accordingly, Cahill decided
that the time was right for the employees to strike. Early that morning, he drove to the plant and
gave a strike letter to Bales. Bales and the other two most senior employees (Sutherland and
Mooney) then took the letter upstairs and gave it to SMI’s operations supervisor/dispatcher,
George Gaskin. (Tr. 152–153, 177–178, 210.)
The letter stated that the unit employees would be engaging in a strike effective that day.
It further stated that the strike would be “an unfair labor practice strike,” and that the strike would
continue “until Spurlino Materials remedies the unfair labor practice it committed in discharging
Gary Stevenson,” including “an offer of reinstatement . . . and lost wages and benefits to date.”
The letter also advised that the strike would “cover all work performed by the bargaining unit which
is not subject to a labor agreement with a binding no strike clause.” In this regard, it stated that
the Union would “continue to honor Article 12 of the Project Labor Agreement for the Stadium and
Convention Center Expansion Project”; that the unit employees assigned to that project would
“fully perform all work covered by the PLA in accordance with that no strike provision”; and that the
Union would not engage in any picketing at that jobsite (Jt. Exh. 5.)13
After receiving the letter, Gaskin told the employees to wait in the parking lot until Davidson
arrived (Tr. 211). He then called Davidson and informed him what was happening (Tr. 584).
Davidson arrived shortly thereafter. He told the employees that the Company intended to

11 There is conflicting testimony about whether there was any discussion at the meeting of
Stevenson’s discharge or other unfair labor practices. Employee Mooney testified that he recalled
Davidson briefly discussing the firing of three drivers, including Stevenson (Tr. 244–245).
However, there is no other testimonial or documentary evidence supporting Mooney’s recollection,
and, as discussed infra (fn. 40), he demonstrated poor memory about the timing of events
generally, i.e. there is reason to believe he may have been remembering some other meeting.
Further, Davidson specifically denied that any unfair labor practices in the pending Seventh Circuit
case were discussed at the meeting (Tr. 615–626). Given that the agenda for the mandatory
meeting was set by the Company and focused exclusively on the contract negotiations and how
the Company would respond to an “economic” strike, it does not strain credulity to believe
Davidson’s testimony in this respect. Accordingly, I find that Stevenson’s discharge and the other
unfair labor practices pending before the Seventh Circuit were not discussed at the May 19
meeting.
12 Bales’ information was correct; SMI was scheduled to deliver 2000 cubic yards of concrete
to Noblesville that day (a non-PLA job), which would have required 200 trips (Tr. 581–582).
13 Article 12 of the PLA specifically provides that signatory unions will not engage in, inter alia,
any “economic or unfair labor practice strike.” It further provides that signatory employers will not
“cause, incite, encourage, or participate in any lockout of employees during the term of this
Agreement….” (Jt. Exh. 2, p. 26.)
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continue operating with replacements, and that, if they were not going to work, they had to
leave.14
The employees thereupon left the parking lot and began picketing across the street with
signs stating:
TEAMSTERS
EMPLOYEES OF SPURLINO MATERIALS
OF INDIANAPOLIS, LLP
ON
UNFAIR LABOR PRACTICE STRIKE
FOR THE ILLEGAL TERMINATION OF GARY STEVENSON
LOCAL 716
(GC Exh. 4; Tr. 60, 84, 154, 188, 212–213, 254, 608).
The picketing continued throughout the strike, at locations near the facility and/or at certain
jobsites where SMI delivered concrete (Tr. 158, 213, 260, 609). Most of the unit employees
participated in, and picketed during, the strike (Tr. 178–179, 212, 583, 585). Stevenson himself
also joined the picket line (Tr. 186).
As promised, SMI at all times continued operating during the strike. It did so by utilizing a
total of about 10 SM employees from Ohio (Tr. 60–62, 323, 342, 350). It also hired approximately
16 permanent replacements, who were trained by the Ohio drivers (Tr. 69–70, 612). SMI
assigned the Ohio drivers and replacements to both the stadium and convention center project,
which was covered by the PLA, and its other projects. Although a number of the strikers offered to
work on the stadium and convention center project, no such work was assigned to any of the
strikers. (Tr. 66–67, 190–191, 211, 234, 588, 621–623.) SMI also denied a grievance that the
Union filed on the fourth day of the strike (August 6) objecting to the Company’s failure to assign
the strikers such work (GC Exh. 5; Tr. 104–108).15 Accordingly, at no time during the strike did
any of the strikers actually perform any work for the Company (Tr. 622).
By August 11, after over a week of picketing, SMI had still not contacted the Union about
reinstating Stevenson. Further, it appeared that work had slowed down considerably.
Accordingly, Cahill gave Davidson a letter notifying him that the employees were prepared to end
the strike and return unconditionally effective the following day, August 12. The letter therefore
demanded that the employees be immediately recalled to work. (Jt. Exh. 6; Tr. 27, 70, 158–159,
192–193).
SMI, however, refused to recall any of the strikers. It advised the Union that, in its view,
the strike was “either an illegal partial strike unprotected by the [Act] or, at best an economic
strike,” and that there were no jobs available as they had been filled with crossovers and

14 There is conflicting evidence whether Davidson talked to the employees immediately upon
arriving, or only after going upstairs and reviewing the letter himself and speaking to Spurlino and
the Company’s attorney on the phone. Davidson and employee Mooney testified to the latter
version (Tr. 57–58, 212, 584–585), but Davidson’s notes from that day (R. Exh. 19) and employee
Ipock’s testimony (Tr. 734–736) support the former version. Fortunately, it does not really matter.
15 As of the hearing, there had been no further communication or action with respect to the
grievance (Tr. 106, 111).
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permanent replacements (Jt. Exh. 7.) Thus, none of the 12 strikers at that time were placed on
the call-in list or otherwise reinstated. (Tr. 51–52, 71–73, 215–216, 254.)16
C. Analysis
1. The “Single Employer” Issue.
As indicated above, there is no dispute that the unit employees are employed by SMI (Tr.
8). However, the General Counsel alleges, and SM denies, that SM is also an employer of the
employees, i.e. that SM and SMI are a “single employer” of the employees.
a. Whether SM is collaterally estopped from contesting employer status
Prior to the hearing, the General Counsel filed a motion in limine seeking to prevent SM
from presenting any evidence that it is not an employer of the unit employees. The General
Counsel contended that SM is collaterally estopped from doing so, inasmuch as SM did not
dispute and admitted that it was properly named as the respondent employer in its answer and
briefs filed in the prior unfair labor practice proceeding involving the unit,17 and SM was found to
be the employer in that proceeding.
SM, however, argued that offensive collateral estoppel is inappropriate here because (1)
the matter was never put in issue in the prior case; and (2) SMI has been found to be the
employer of the subject employees in other proceedings; specifically, the 2006 representation
proceeding in which the Union was certified by the Board, and a subsequent 2008 Federal court
proceeding brought by the Union to compel arbitration of a grievance filed under the PLA at the
stadium project (Local 716, Teamsters v. Spurlino Materials of Indianapolis, LLC, 2008 WL
2705556 (S.D. Ind. July 10, 2008)). (GC Exh. 1(o).)18

16 Although the complaint alleges that 14 employees engaged in the strike and have not been
reinstated, uncontroverted evidence adduced at the hearing indicates that one (Rummell) crossed
over after the first day and another (Thomerson) was on medical leave at the time and has also
returned to work (Tr. 71–73).
17 SM specifically admitted that it "has facilities located in Indianapolis"; that “in conducting its
business operations [it] purchased and received at its Indiana facilities, goods valued in excess of
$50,000 directly from outside Indiana”; that "at all material times [it] has been an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act”; that at all
material times, Davidson and Gaskin have been its agents and supervisors within the meaning of
Section 2(13) of the Act; that it leased a portable batch plant adjacent to the Indianapolis Stadium
project; that it posted a notice at "its plant in Kentucky Avenue in Indianapolis, Indiana, and at its
plants in Noblesville and Linden, Indiana, advertising for ready-mixed concrete truckdrivers for the
portable batch plant that it established adjacent to the Stadium project”; that it tested individuals
who applied for such openings; that it hired truckdrivers to work out of "its batch plant"; and that
the January 2006 representation election was held among employees that it employs (GC Exh.
1(l), Attachments C & D).
18 SM also noted that the Union named SMI in its strike letter, its offer on behalf of the
employees to return to work, and its unfair labor practice charge. It contended that the
designation of SM instead of SMI in the prior unfair labor case was “simply a clerical error that was
never remedied”; a “mistaken designation” that “should be corrected.” SM stated that it “seeks at
this point to clear up that error and to ensure that the proper name of the entity certified as the
employer . . . is properly designated.” Response at 4 and 6. See also the attorney “disclosure
statements” attached to SM’s March 2010 brief to the Seventh Circuit supporting its initial petition
Continued
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By pretrial order dated January 3, 2011, I denied the General Counsel’s motion, essentially
for the reasons stated by SM (GC Exh. 1(p)). Accordingly, the parties were permitted to fully
litigate at the hearing whether SM and SMI are a single employer of the unit employees, and they
did so.

Nevertheless, counsel for the General Counsel has continued to assert, both at the hearing
(Tr. 8, 49) and in her posthearing brief, that collateral estoppel is applicable here, i.e.
that SM is bound by its admission in the prior case. However, for the reasons set forth below, I
adhere to my prior ruling that collateral estoppel is inappropriate.
The only supporting precedent cited by the General Counsel is Allied Mechanical Services,
352 NLRB 662, 664-665 (2008), reconsideration denied 356 NLRB No. 1 (2010). Specifically, the
General Counsel cites the Board’s statement in that case that
[a]n issue need not be actively litigated at trial in order to be actually litigated for
purposes of collaterally estopping a party from relitigating that issue. Otherwise,
admissions in answers, failure to contest material facts in summary judgment
dispositions, and stipulations or failures to present evidence at trial would have no
issue preclusion consequences. See Abbot Bank v. Armstrong, 44 F.3d 665 (8th
Cir. 1995) (issue of whether bank was creditor held “actually litigated” in prior case,
where creditor status had not been judicially resolved but, rather, was “inherent”
and necessary to judgment in case and was admitted in answer).
Allied Mechanical, however, is distinguishable on its facts. There, the relevant allegation
(that the union was the 9(a) representative of the bargaining unit employees) had been denied in
the respondent’s answer, and had therefore been “squarely placed in issue,” in the prior
proceeding. 352 NLRB at 664. The cited Eighth Circuit decision in Abbot Bank is also
distinguishable, as the second proceeding there was actually a continuation of the first, i.e. the
second proceeding arose in the same bankruptcy case. See 18A Fed. Prac. & Proc. Juris. §4443,
fn. 5 (2d ed., updated through 2010).
Moreover, as noted by SM, to the extent the Board’s quoted statement in Allied Mechanical
could be interpreted to include admissions in separate cases, it appears to conflict with statements
in other Board decisions. See, e.g., Harvey’s Resort, 271 NLRB 306 (1984) (“On the other hand,
if a matter is not actually litigated in the first proceeding, that is, if the answer to a complaint fails to
put the matter in issue, then collateral estoppel is inapplicable because the issue is in reality being
litigated for the first time in the second proceeding [citing James & Hazard, Civil Procedure sec.
11.17 (Little, Brown & Co. 1977)]). See also National Marine Engineers Beneficial Ass'n v. NLRB,
274 F.2d 167, 172 (2d Cir. 1960).
Finally, even assuming arguendo that Allied Mechanical may properly be read to permit the
use of offensive collateral estoppel based entirely on a respondent’s admissions in a prior case, it
does not purport to repeal the trial judge’s “broad discretion” to reject its use in a particular
instance. See In re Microsoft Corp. Antitrust Litigation, 355 F.3d 322, 326 (4th Cir. 2004) (quoting
Parklane Hosiery v. Shore, 439 U.S. 322, 331 (1979)). In this instance, given the history of
contrary Board and court findings during the same general time period, i.e. the Board’s 2006
Certification of Representative and the Federal court’s 2008 decision in the PLA litigation naming
SMI, rather than SM, as the employer of the subject employees, I reaffirm my previous ruling that
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for review of the Board’s decision (Exh. G to the GC’s motion), which state that the “full name” of
“Spurlino Materials, LLC” is “Spurlino Materials of Indianapolis, LLC.”
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the better course―in the absence of a satisfactory stipulation―is to permit litigation of the issue
and thereby finally resolve whether the employees are employed by both SM and SMI as a single
integrated enterprise. See National Marine Engineers Beneficial Ass'n, 274 F.2d at 175.
b. Whether SM and SMI are a “single employer”
The test for determining whether two or more entities are a “single employer” is whether
they have failed to maintain the kind of arm's-length relationship that would normally characterize
separate and independent companies. In applying this test, the Board focuses on four factors: (1)
common ownership or financial control; (2) common management; (3) interrelation of operations;
and (4) common control of labor relations. However, no single factor is considered determinative
and all four need not be present. Rather, the Board considers all the circumstances to determine
whether the test is met. See, e.g., Carnival Carting, 355 NLRB No. 51, slip op. at 4 (2010); and
San Luis Trucking, 352 NLRB 211, 226 (2008), reaffirmed and incorporated by reference 356
NLRB No. 36 (2010). See also NLRB v. Palmer Donavin Mfg., 369 F.3d 954, 957 (6th Cir. 2004);
RC Aluminum v. NLRB, 326 F.3d 235 (D.C. Cir. 2003); and Emsings Supermarket, 872 F.2d
1279, 1287 (7th Cir. 1989).
Applying the foregoing principles, I find that a preponderance of the evidence establishes
that SM and SMI are a “single employer” of the unit employees, as alleged.
Common Ownership or Financial Control
As noted above, James Spurlino has at all times been the majority, and therefore
controlling, owner of both SM and SMI. He currently owns 100 percent of SM and 52 percent of
SMI, with the remaining 48 percent divided equally between his father, Cyrus, and another
company owned by a longtime friend. (Tr. 367, 370, 447, 464–465, 468). Further, as limited
liability companies, neither SM nor SMI has a board of directors and all profits are distributed
directly to the owners as personal income (Tr. 365, 466, 645). Accordingly, I find that there is
substantially common ownership and financial control. Cf. Bolivar Tees, 349 NLRB 720 (2007),
enfd. 551 F.3d 722 (8th Cir. 2008); Hahn Motors, 283 NLRB 901 (1987); and V.I.P. Radio, 128
NLRB 113 (1960).
Common Management
As discussed above, SMI has its own operations manager (Davidson) and operations
supervisor/dispatcher (Gaskin). The record indicates that they exercise significant independent
authority over SMI’s day-to-day operations. (Tr. 55–57, 79, 567–569, 643–644, 648, 684).
Further, neither performs any work for SM in Ohio, which has its own operations managers and
dispatchers. Nor do the operations managers for SM in Ohio perform any work for SMI. (Tr. 55,
80, 370–371, 668–671, 680.)
However, the absence of such common day-to-day management is not considered
significant, particularly where, as here, the facilities are geographically separate. Rather, the
relevant inquiry is whether there is “overall control of critical matters at the policy level.” Bolivar
Tees, 349 NLRB at 721 fn. 4; Emsings Supermarket, 284 NLRB 302, 302 (1987), enfd. 872 F.2d
1279 (7th Cir. 1989); and Sakrete of Northern California, v. NLRB, 332 F.2d 902, 907 (9th Cir.
1964), cert. denied 85 S.Ct. 649 (1965).
Here, as indicated above, Spurlino is the president and manager of both SM and SMI.
Further, it is undisputed that he makes the major decisions for both companies (Tr. 366, 569). He
determines the strategic direction, operating procedures, and values of the companies (Tr. 643–
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644). He signs the property leases for both companies (Tr. 684), and decides whether to sell
assets (Tr. 370). He sets up lines of credit with financial institutions (Tr. 429), authorizes cash
advances and payments between the two companies to pay their debts (Tr. 485–486), and directs
their accounting procedures (Tr. 513–514, 781). He executes agreements between the two
companies (signing for both), and decides whether and how much they charge for services,
equipment, and workers (Tr. 351, 400–403, 527, 674, 764; GC Exhs. 37, 38). He also approves
invoices submitted to SM and/or SMI from vendors (Tr. 378, 381, 766; GC Exh. 42). And he is
directly involved in pricing large projects and making major purchases (Tr. 569, 685).
Accordingly, I find that this factor also supports single-employer status. Cf. Carnival Carting, 355
NLRB No. 51, slip op. at 5; and Bolivar Tees, 349 NLRB at 721.
Interrelation of Operations
As indicated above, SM and SMI were created and licensed separately, are geographically
removed and serve different markets in different states, and have their own personnel and
equipment. They also have separate bank and credit card accounts, and keep separate financial
records. (Tr. 329–337, 368–371, 383, 392, 463–466, 492, 533, 643–646, 654, 655–660, 668–
671, 677–678; GC Exhs. 19, 30.)
However, they have a common general business purpose: the delivery of concrete to
construction sites. Further, SM helped to start up SMI (Tr. 398–399, 453–454) and they hold
themselves out as the same enterprise (i.e. simply as “Spurlino Materials”) on their common
internet website, their business cards, stationery, and documents, and their trucks (Tr. 281, 300,
328, 334, 352, 461–462; GC Exhs. 7, 11, 15, 21, 22).19 Cf. Palmer Donavin Mfg., 369 F.3d at
957; Bolivar Tees, 349 NLRB at 721; Southern Interiors, 319 NLRB 379 (1995), enfd. 107 F.3d 12
(6th Cir. 1997) (table); and Hahn Motors, 283 NLRB at 901. They are also specifically listed as
“related parties” on at least some of the annual financial statements prepared by Battelle &
Battelle LLP, the accounting firm that prepares such statements for both companies (Tr. 371, 385).
Cf. Three Sisters Sportswear, 312 NLRB 853, 863 (1993), enfd. 55 F.2d 684 (D.C. Cir. 1995)
(table), cert. denied 116 S.Ct. 814 (1996).
Moreover, both Spurlino and Davidson have, at least sometimes, specifically referred to
the companies as a single entity. Thus, in an April 2009 letter to “All Indianapolis Employees,”
Spurlino noted that “many of our employees living in Ohio, Indiana, and Kentucky” earned
bonuses because they had helped make “the company” successful, and that “we are the same fair
and consistent employer that several hundred people have worked for over the years” (GC Exh.
11). Similarly, early in the hearing in this case, Davidson referred to SM as “our Ohio division”
when discussing how SMI continued operating during the strike (Tr. 63). SM’s controller, Richard
Bumgardner, also referred to the Ohio and Indiana operations as “divisions” in describing the
disability insurance bill that is submitted to SM for the two companies (Tr. 525). Cf. Three Sisters
Sportswear, 312 NLRB at 863. Further, as discussed above, SM did not dispute that it was the
employer of the Indianapolis unit employees in the prior ULP case.20

19 SMI does not pay a fee for the right to use the name “Spurlino Materials” (Tr. 476).
20 Although not dispositive, SM’s factual admissions in its pleadings in the prior case are
admissible and cognizable evidence under FRE 801(d)(2). See Enquip, Inc. v. Smith-McDonald
Corp. 655 F.2d 115, 117 -119 (7th Cir. 1981); 30B Federal Practice & Procedure § 7026 (1st ed.,
updated through 2010); and 4 Federal Evidence § 8:44 (3d ed.) (updated through 2010). See also
NLRB v. Consolidated Bus Transit, 577 F.3d 467, 474 (2d Cir. 2009) (“We have even suggested
that a party's admission in a Board proceeding may carry evidentiary weight in future cases
brought before the Board. See National Marine Engineers Beneficial Ass'n, 274 F.2d at 172 (‘To
Continued
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The record indicates that there is good reason for this, i.e. there is substantial evidence
that the companies’ operations are, in fact, interrelated. Thus, SMI continues, for certain
purposes, to use the Middletown, Ohio address, the address set forth in its original operating
agreement (GC Exh. 45) and SM’s primary address (Tr. 364, 465). For example, all invoices for
SMI’s purchases and most payments to SMI are sent to SM’s Middletown facility. And SM’s
controller (Bumgardner) also does all of the accounting for SMI, i.e. “runs the accounting
department” for both companies. (Tr. 285, 325–326, 480–481, 781, 786; GC Exh. 42.) Cf. San
Luis Trucking, 352 NLRB at 227; In Re Bristitzky, 323 NLRB 524 (1997); and Hahn Motors, 283
NLRB at 905.

There is also a significant history of both permanent and temporary employee interchange
between the companies. Thus, Davidson was the operations manager for SM for 5 years before
permanently transferring (without completing a new employment application) to the same position
at SMI in 2006 (Tr. 54, 278, 567). Cf. Hahn Motors, 283 NLRB at 904; and Operating Engineers
Local 627 v. NLRB, 518 F.2d 1040, 1047 (D.C. Cir. 1975), affd. in part 425 U.S. 800 (1976).
Employees for each company also periodically perform work for the other company on a
temporary or part-time basis. For example, SM’s sales manager in Ohio (Raussen) spends a
couple days a month in Indianapolis helping out the sales staff there, i.e. providing training,
planning, mentoring, and strategic support (Tr. 760, 784–785). In addition, although SMI has its
own mechanical maintenance employee, an SM employee (Shelton) does major welding repair
work in Indianapolis off and on, for a total of about 4 weeks or so a year (Tr. 74–75, 294, 319–321,
349).
SM truckdrivers also occasionally deliver concrete for SMI, and vice-versa (Tr. 66, 76–78,
255–256, 296–299, 322–323, 343–350, 651). Indeed, prior to the strike, SMI and SM had jointly
scheduled at least six employees from Ohio to work in Indianapolis on August 3 to cover SMI’s
heavy workload at that time.21 Further, as indicated above, several additional Ohio employees
were sent to Indianapolis after SMI received the strike letter, to deliver concrete and train the
replacement workers.
Finally, there is substantial evidence that the companies’ transactions between each other
are not entirely at arms length. For example, although the companies charge for their shared
equipment, labor, and services, they do not actually invoice each other. See Tr. 303, 343–344;
compare Tr. 301–302 (unrelated companies invoice SMI for leased trucks and drivers).22 While
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be sure since the answer was not limited to the particular case, the admission [that the
respondents were “labor organizations”] was evidence against [the respondents] elsewhere, and
this was not deprived of evidential force by the subsequent unsuccessful attempt to withdraw it.’)”).
21 The precise number is somewhat unclear. Davidson initially testified that SMI used up to 10
Ohio employees a day, and a total of 12–15 over the first few days of the strike, of which 6–8 had
been previously scheduled (Tr. 60–62). However, he later testified that 8–10 Ohio employees had
been prescheduled (Tr. 291), and still later testified that only 6 had been prescheduled (Tr. 342).
22 The record contains conflicting testimony about how much SM charges SMI for shared
labor. Spurlino testified that he sets the rates and that SM typically charges other companies,
including SMI, the employee’s regular wage plus a 30 percent premium to include the cost of the
employee’s benefits and SM’s overhead and profit (Tr. 411, 436, 441–442, 673–674).
Bumgardner generally corroborated this testimony with respect to labor that SM provides
to one of the other related companies owned and managed by Spurlino (Bison Concrete).
However, Bumgardner testified that Spurlino does not tell him how much to charge for SM
employees who perform work for SMI, and that the amount charged SMI for such employees,
including Shelton, is based on the employee’s regular hourly rate at SM. (Tr. 486–487, 496, 524,
Continued
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Bumgardner will note the charges on a general ledger, the entries are not always sufficient to
explain the reason or basis for the transaction (Tr. 502–506). Moreover, not all services are
charged based on their actual cost. Thus, certain services, including invoicing, financial
statements, and other accounting functions, as well as some sales (i.e. Raussen) and executive
(i.e. Spurlino) services, are allocated to SMI based solely on SMI’s percentage of the total sales
made by SM and SMI (and two other companies owned and managed by Spurlino). (GC Exh. 37;
Tr. 402–404, 443–447, 450, 489–490, 645, 760.) There is no evidence of any similar
arrangement with unrelated companies.
SM also frequently makes large cash advances to SMI, which are used to cover SMI’s
debts and/or pay down its line of credit with the bank (on which SMI currently owes about $4
million). These cash advances are made by SM, either by writing its own check or by signing over
a customer check, without any loan agreement, repayment terms, or interest― notwithstanding
SMI’s long-term high negative balances (consistently over $500,000, and as high as $1.1 million,
since February 2010).23 (Tr. 386–387, 413–414, 448, 484, 498–502, 504, 506, 528, 539, 771–
772, 775; GC Exh. 19.) Cf. San Luis Trucking, 352 NLRB at 227; Denart Coal, 315 NLRB 850,
852 (1994), enfd. sub nom. Vance v. NLRB, 71 F.3d 486 (4th Cir. 1995); and Edward C. Kelly
Co., 230 NLRB 337, 339 (1977). Again, there is no evidence of any similar, interest-free cash
advances to unrelated companies.24
The record indicates that SM also regularly pays SMI’s bills directly. For example,
although Davidson transferred to SMI 5 years ago, he still uses an SM credit card, and his
charges are therefore paid for by SM (Tr. 531, 535–536). SM also pays for SMI’s medical
insurance policy (Anthem), even though the companies have different policies and are billed
separately (Tr. 501–503, 526; GC Exh. 19). It also pays SMI’s portion in those circumstances
where the vendor for both companies submits a single, commingled invoice to SM. Such
commingled invoices are regularly submitted by their common business-development firm
(McGraw Hill), accounting firm (Battelle & Battelle), telephone provider (Verizon), 401(k) plan
administrator (Fidelity), and disability insurance provider (Guardian). SM and SMI also receive
their Federal heavy highway use tax in one bill. (Tr. 387–390, 412–413, 451, 486, 494–497, 503,
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527–528). See also Davidson’s testimony, Tr. 293, 323 (acknowledging that he is not aware of
any contractual or lease agreement between SM and SMI setting the rate to be charged SMI for
the use of Shelton or other SM employees). I give greater weight to Bumgardner’s testimony, as
he is the one who does the calculations and makes the charges based on information provided by
the employees or operations managers (Tr. 284–289, 293–294, 303–304, 486–487). Further, as
discussed below, Spurlino’s testimony is inconsistent with the weight of the evidence in various
other respects as well.
23 Spurlino testified that SMI has also made cash advances to SM in the past, likewise without
any loan agreement, payment terms, or interest (Tr. 387, 653, 788). However, Bumgardner
testified that he could not recall SMI ever making any cash advances to SM (Tr. 778). In any
event, the record indicates that SMI has usually carried a negative balance with SM. (GC Exh. 19;
Tr. 653.)
24 At the hearing, Spurlino attempted to minimize the significance of SM’s large, interest-free
cash advances to SMI, noting that some of SM’s customers also carry negative balances with SM
due to their failure to timely pay for SM’s services, and that SM does not impose finance charges
or interest on such overdue or bad debts. See Tr. 449; see also Tr. 653 (denying that there is any
financial relationship between SM and SMI other than selling each other services and occasionally
renting equipment). However, Spurlino acknowledged that SM does not give interest-free cash
advances to customers (Tr. 473).
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525, 530–538, 786–787; GC Exh. 19.)25 In all of these circumstances, Bumgardner will charge
SMI’s account after making the payment from SM’s account. However, again, SM will not actually
invoice SMI for these payments, and the brief entries on the general ledger are not always
sufficient to explain the reason for a transaction (Tr. 389–390, 502, 506). Moreover, as above,
there is no evidence that SM provides similar bill-payment services to unrelated companies.
The same is true with respect to other financial transactions. For example, the ledger
shows frequent movement of large sums of money between the two companies, typically on the
last day of the month, which are described simply as a “reclass” (i.e reclassification). Two of the
more notable examples are entries on July 31, 2008, which show four “reclass” credits totaling
$320,000 and three “reclass” debits totaling $527,000, and on November 30, 2009, which show
three “reclass” credits totaling over $250,000 and two “reclass” debits totaling over $150,000. (GC
Exh. 19, pp. 5, 8.) Both Spurlino and Bumgardner admitted that there are no invoices or other
documentation explaining such “reclass” entries. Nor could either adequately explain the entries
from memory. (Tr. 407, 483–484, 493–498, 502.) All they could offer were several possible, non-
specific explanations for each “reclass” entry: the entry could mean that a prior erroneous data
entry was corrected; it could mean that money was reclassified from one account to another to
balance the books between the two companies so that each did not have both an accounts
payable and an accounts receivable at the end of the month;26 or it could reflect a payment for the
rental of equipment and labor for the month. Further, they acknowledged that there is no way of
knowing from the ledger which, if any, of these was the actual reason for the transaction. (Tr. 409–
410, 434, 488, 508–515, 522–523). Cf. Emsings Supermarket, supra.27
Accordingly, based on all the foregoing circumstances, I find that this factor also supports
single-employer status.
Common Control of Labor Relations
As indicated above, SM and SMI have their own operations managers and dispatchers
who exercise significant independent day-to-day operational authority, including hiring, directing,
and supervising the employees of the respective companies (Tr. 57, 63, 282–286, 303–304, 331,
339, 348, 376–377, 568, 627, 680). Since 2008, Davidson has also served as the sole
management representative (along with SMI’s attorney) during the contract negotiations, and he

25 In light of the above-cited evidence (Bumgardner’s testimony and SMI’s general ledger), I
discredit Spurlino’s testimony to the extent it suggests that SM only pays for SMI’s bills when they
are combined with SM’s bills on one invoice (Tr. 387, 451, 786–787). For the same reason, I also
discredit Spurlino’s testimony to the extent it suggests that Verizon submits separate invoices for
SM and SMI (Tr. 426).
26 At Spurlino’s direction, Bumgardner regularly nets or balances out the accounts of SM and
SMI and other related companies owned and managed by Spurlino (Tr. 513–514, 781).
27 There is no contention that the annual financial reports prepared by Battelle & Battelle
(which were not actually placed in evidence due to confidentiality concerns) provide any further
information or confirmation regarding the reasons for the transactions. The reports are based on a
“review,” which is substantially less in scope than an “audit” in accordance with generally accepted
accounting standards (Tr. 383, 455, 524). See also Dictionary of Accounting Terms, at
http://www.allbusiness.com/glossaries/ review (a review “is not an audit nor does it furnish a basis
for an opinion since there is no appraisal of internal control nor gathering of audit evidence”).
Further, as indicated, there is often no documentation of the transactions between SM and SMI for
Battelle & Battelle to review.
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conducted the mandatory “strike information” meeting with the unit employees in May 2010 (Tr.
569, 579–580, 594–597, 613, 618).
However, it is clear that Spurlino, as majority owner, president, and general manager of
both companies, has the ultimate authority over the labor relations of both. Further, the record
shows that he has actually exercised that authority. He determined the initial wages and benefits
for the employees of both companies (Tr. 661, 691; see also R. Exh. 10, p. 2 (“Jim Spurlino . . .
promised to pay competitive wages and benefits in the meeting with employees on the day we
took over the American Concrete operations”).28 He also continues to be involved, at least
sometimes, in deciding the amount of wage increases to be granted to unit employees at both SM
and SMI (Tr. 686–687; GC Exh. 11).29 And he is consulted, at least sometimes, by the operations
managers at SM and SMI about expanding the workforce, i.e. about the number of employees to
hire (TR. 339, 690), and about terminating employees (Tr. 284, 569, 690).30
In addition, although Davidson has been the Company’s representative at the bargaining
table, Spurlino has also personally met with the Union and its attorney and communicated directly
with employees regarding the collective-bargaining negotiations (GC Exh. 11; Tr. 694). Further,
Davidson has made clear to the employees that Spurlino has the final say with respect to any
agreement. See R. Exh. 11, p. 2 (“Jim Spurlino has never been given a contract to sign. If an
agreement had been agreed to in the negotiations, then ratified by the employees, Jim would have
signed it.”).
Finally, the record indicates that Spurlino at least helped Davidson draft the two “strike
information” memos that were given to employees on May 19 and 21, 2010 (R. Exhs. 10, 11; Tr.
605, 614, 617, 624). And Davidson admitted that he did not himself make the decision to exclude
the strikers from working on the stadium and convention center project (Tr. 68).
In sum, therefore, I find that all four of the relevant factors support a finding that SM and
SMI are a single integrated enterprise.
2. The Refusal to Reinstate the Former Strikers
As indicated above, the General Counsel contends that the Respondents were required to
immediately reinstate the employees because the strike was caused by their unfair labor
practices; specifically, the unlawful discharge of Stevenson in February 2007 and subsequent
failure to offer him reinstatement as required by the Board’s decision and order. Mastro Plastics v.
NLRB, 350 U.S. 270, 278 (1956) (unfair labor practice strikers are entitled to immediate
reinstatement to their former positions even if replacements have been hired).

28 SMI was created in early November 2005 for the purpose of purchasing the assets of
American Concrete in Indianapolis, and did so shortly thereafter. See, e.g. Tr. 397, 643.
29 Spurlino testified that there are substantial differences between the employees’ wages and
benefits and other terms and conditions of employment at SM and SMI (Tr. 662–665, 670–673).
He also testified that there is a substantial difference in how they are dispatched: Indianapolis is
by seniority; whereas Ohio uses a rotating “wheel” dispatch procedure (Tr. 666–667). However,
such differences are not surprising or significant given that SMI’s employees are unionized and
SM’s are not. See, e.g., Edward C. Kelly Co., 230 NLRB at 339.
30 The record as a whole leaves me more than a little skeptical about the cited testimony to the
extent it appeared to minimize Spurlino’s role in these matters. Indeed, I am persuaded that he
actually exercises his authority on such matters more than just sometimes. However, I find that
sometimes is sufficient under the circumstances. See Denart Coal, 315 NLRB at 853.
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The Respondents, on the other hand, contend that they had no obligation to immediately
reinstate the striking employees. The Respondents assert two, alternative bases for this position.
First, they contend that the employees actually struck to protest the failure to agree to their
demands in negotiations over a first contract, and were therefore engaged in an economic, rather
than an unfair labor practice, strike. See NLRB v. Mackay Radio & Telegraph, 304 U.S. 333, 345
346 (1938) (economic strikers who have been permanently replaced are not entitled to immediate
reinstatement). Second, the Respondents contend that the employees were engaged in an
unprotected partial strike because they continued to offer and demand to work on the stadium and
convention center project. See, e.g., Valley City Furniture, 110 NLRB 1589, 1594 (1954), enfd.
mem. 230 F.2d 947 (6th Cir. 1956) (employees who engage in a partial strike lose their protection
under the Act, even if the strike was caused by employer’s unfair labor practices).
For the reasons set forth below, I find that the Respondents’ contentions lack merit, and
that the Respondents violated the Act as alleged.
a. Whether the strike was an unfair labor practice strike
In evaluating whether a strike was an unfair labor practice or economic strike, the Board
examines the objective and subjective facts to determine the employees’ motivation for striking.
See, e.g., Executive Management Services, 355 NLRB No. 33 (2010); Chicago Beef, 298 NLRB
1039 (1990), enfd. 944 F.2d 905 (6th Cir. 1991) (table); and C-Line Express, 292 NLRB 638
(1989). This approach is complicated by the fact that employees may actually have more than
one motive, i.e. they may hope to pressure their employer both to reverse its unfair labor practices
and to agree to favorable economic terms. However, the law is clear that striking employees do
not lose their protection from permanent replacement simply because only one of their goals is to
reverse their employer’s unfair labor practices, even if it is not their primary goal. See, e.g.,
Northern Wire v. NLRB, 887 F.2d 1313, 1319–1321 (7th Cir. 1989) (“A strike that is caused in
whole or in part by an employer's unfair labor practices is an unfair labor practice strike”); NLRB v.
Moore Business Forms, 574 F.2d 835, 840 (5th Cir. 1978) (“The employer's unfair labor practice
need not be the sole or even the major cause or aggravating factor of the strike; it need only be a
contributing factor”); General Drivers and Helpers Union, Local 662 v. NLRB, 302 F.2d 908, 911
(D.C. Cir. 1962) (“if an unfair labor practice had anything to do with causing the strike, it was an
unfair labor practice strike”), cert. denied 83 S.Ct. 48 (1962).
Here, there is abundant evidence that the August 2010 strike was motivated, at least in
part, by the Respondents’ unfair labor practices. As indicated above, the Union called the pre-
strike meeting for the purpose of taking a vote whether to engage in a ULP strike; the Union’s
attorney explained to the employees at the meeting the differences between a ULP and an
economic strike; it was recommended to the employees that the strike be a ULP strike; the
employees unanimously voted to engage in a ULP strike; both the Union’s strike letter and the
employees’ picket signs specifically stated the employees were engaging in a ULP strike to protest
the unlawful discharge of Stevenson; and at no time during the strike did the Union make any
economic demands on the Company (Tr. 159).
Further, both of the former strikers who testified about the May 2010 meeting and vote
stated that the unfair labor practices were at least one of the reasons they voted to strike. Thus,
employee Mooney testified that he voted “yes” and picketed because
it’s been going on for 5 years. We won several things through the courts and
Spurlino never follows through on what we won and just over the years you just
getting tired of it, you’re trying to do what’s best for you and for the other people
you work for. (Tr. 208–209.)
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. . . .
[W}e wanted to get our point across that we was still here―for 5 years we’ve been
fighting for negotiations and stuff and we pretty much went to work all this
time―nothing ever really did happen―you know―as far as I consider for
negotiations on contracts and stuff even though they did talk. And we just wanted
to step up and let them know that we’re here, that we’re fighting together and we
haven’t given up on―you know―all the unfair labor practices and the firing of Gary
Stevenson and hopefully later on down the road maybe we can start negotiation[s]
back up for a contract. (Tr. 213.)
(See also Tr. 225.) Similarly, employee Poindexter, testified that he voted to go on strike because
it wasn’t only about Gary Stevenson to me. It was unfair that they were not
allowing [Stevenson] to come to work over something that was handed to him, that
they knew they should not have.31 But it was also about sticking together and in
my opinion, if it was me in that situation, I would hope that all the drivers would
have my back (Tr. 252).
The Respondents argue that all of the foregoing evidence must be rejected as “self
serving,” citing, inter alia, Pirelli Cable Corp. v. NLRB, 141 F.3d 503 (4th Cir. 1998); NLRB v.
Colonial Haven Nursing Home, 542 F.2d 691 (7th Cir. 1976); and Winn-Dixie Stores v. NLRB,
448 F.2d 8 (4th Cir. 1971). However, this case bears little resemblance to those cases. For
example, in Pirelli Cable, the sole unfair labor practice found was a single 8(a)(1) statement that
the employees could lose their jobs if they went on strike. The court found that the employer’s
statement was not coercive in context, and that even if it was, the relevant testimonial evidence,
which came exclusively from union officials, was insufficient to support a conclusion that the union
members, rather than just the union officials, were upset by the statement (141 F.3d at 515–519).
Similarly, in Colonial Haven, the court emphasized that the pre-strike 8(a)(1) violations were
“extremely mild” and “technical in nature,” and their connection or importance to the employees’
overall objective in that case (obtaining immediate recognition without an election based on
authorization cards) was remote (542 F.2d at 694, 706). And in Winn-Dixie, the only evidence
indicating that the strike was over unfair labor practices was testimony by strikers, which was
inconsistent with other evidence, including the language on the picket signs (448 F.2d at 12).32
Here, in contrast, the unfair labor practice―the 8(a)(3) discharge of one of the most active
union supporters and a member of the bargaining committee33―cannot reasonably be
characterized as a minor violation of the Act, and its connection or importance to the employees’

31 See 353 NLRB at 1213 (describing the evidence regarding the circumstances leading up to
Stevenson’s suspension and discharge).
32 Other cases cited by the Respondents, including California Acrylic Industries v. NLRB, 150
F.3d 1095 (9th Cir. 1998) and Filler Products v. NLRB, 376 F.2d 369 (4th Cir. 1967), are clearly
distinguishable for similar reasons. It is also noteworthy, of course, that the Board had reached a
different conclusion than the court in Pirelli Cable, Colonial Haven, Winn-Dixie, California Acrylic,
and Filler Products.
33 As indicated in the Board’s prior decision (353 NLRB at 1199, 1205, 1212, 1220),
Stevenson served on the Union's preelection organizing committee, was an observer during the
Board election, and was an elected employee representative on the Union's bargaining
committee. (See also Tr. 243.)
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ultimate objective (obtaining an acceptable first contract) is more apparent. Further, two
employees testified that Stevenson’s discharge was, in fact, a significant reason they voted to go
on strike, and their testimony is consistent with other evidence, including the picket signs. Cf.
NLRB v. Midwestern Personnel Services, 322 F.3d 969, 979–980 (7th Cir. 2003); and Northern
Wire, 887 F.2d at 1321 fn. 3 (distinguishing Pirelli Cable and/or Colonial Haven on similar
grounds).
The Respondents also argue that all of the above evidence should be discredited for
various other reasons. Specifically, they cite: (1) the passage of over 3 years between
Stevenson’s discharge and the strike; (2) the employees’ expressed frustration at the lack of
progress in the contract negotiations; (3) the employees’ failure to raise the issue of Stevenson’s
discharge at the Company’s pre-strike mandatory meeting; (4) the Union’s failure to request the
reinstatement of Stevenson during contract negotiations or any other time leading up to the strike;
(5) the Union’s carefully planned efforts to ensure that the strike was a ULP strike; and (6) certain
statements made by strikers during the strike. However, as discussed below, none of these facts
or circumstances provide substantial support for the Respondents’ position.
(1) Passage of time between Stevenson’s discharge and strike. As noted by the
Respondents, passage of time is a factor considered by the Board and courts in evaluating
whether a strike was caused by unfair labor practices. However, it is not conclusive. See R & H
Coal, 309 NLRB 28 (1992), enfd. 16 F.3d 410 (4th Cir. 1994) (finding that strike was caused by
the employer’s unfair labor practices even though it was not called by the union until 13 months
later); and Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1186 -1187 (7th Cir. 1990)
(upholding the Board’s ULP-strike finding despite the passage of 7 1/2 months since the unlawful
conduct).
Further, it has little force in the circumstances of this case. As indicated above, the
Stevenson unfair labor practice case was being actively litigated before the NLRB until the Board
issued its reinstatement order in March 2009. Moreover, a long time had also passed since there
was any movement toward a final resolution in the contract negotiations; as indicated above, the
parties’ last bargaining session was in August 2009. Thus, if, as the Respondents contend, the
passage of time suggests that the employees were not motivated by the Respondents’ failure to
remedy the unfair labor practices, it also suggests that they were not motivated by the
Respondents’ failure to agree to their contract demands. Both, of course, cannot be true; the
strike was motivated by something. And it is equally as likely, based on the passage of time, that
it was motivated by the former as the latter (or both).
Nevertheless, the Respondents attempt to distinguish the two situations based on Cahill’s
admission that the employees were expecting a counterproposal from the Company in the spring
of 2010 (Tr. 556), and employee Poindexter’s testimony that he was upset by the Company’s
failure to make one at that time (Tr. 270). However, the employees were also informed that the
settlement negotiations in the Stevenson case had recently failed before the Seventh Circuit (Tr.
99–100). As for Poindexter’s testimony, he appeared to be referring to a prior occasion where the
Company attorneys were supposed to bring a proposed written contract to a union meeting, but
failed to do so. Although he testified that this meeting was in April 2010, he also repeatedly
testified that Cahill’s predecessor (Green) was president at the time (Tr. 268–269). However,
Green retired from the Union, and Cahill became president, in March 2009 (Tr. 87–89, 144, 548,
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569–572, 594).34 In any event, as indicated above, Poindexter specifically testified that he voted
to strike at least in part over what had happened to Stevenson.
Finally, there is no contention or evidence that anything significant happened during the 2
1/2-month period between the May 13 vote and the August 3 strike to make the contract
negotiations become a more important, much less an exclusive, reason for the strike. Indeed, the
only significant event disclosed by the record was the mandatory meeting held by the Company on
May 19, and subsequent May 21 memo, wherein Davidson advised the employees that it was the
Union that had failed to provide a counterproposal, and that the Company would “continue to meet
upon requests at every mutually agreeable time and place.”
(2) Employees’ expressed frustration regarding the contract negotiations. The
Respondents also cite the fact that employees expressed frustration, both prior to and at the May
13 union meeting, about the lack of progress in the contract negotiations. However, as found
above, they likewise expressed frustration about the delay in finally resolving the Stevenson unfair
labor practice case. Thus, at best, the former indicates that the latter was not the sole reason for
the strike.
(3) Employees’ failure to raise Stevenson’s discharge at the company meeting. The
Respondents also cite the employees’ failure to question Davidson about Stevenson’s discharge
or the other unfair labor practices in the pending Seventh Circuit case at the mandatory company
meeting on May 19. However, as noted above (fn. 11), this is not especially remarkable given that
the agenda was set by the Company and focused exclusively on the contract negotiations and
how the Company would respond to an “economic” strike.
(4) Union’s failure to request Stevenson’s reinstatement. This is certainly the weakest of
the Respondents’ arguments. Although it is uncontroverted that the Union did not raise
Stevenson’s discharge during the contract negotiations (Tr. 581, 596), contract negotiations are
for negotiating over the terms of a contract. See Wilkie Co., 333 NLRB 603, 614 (2001), enfd. 55
Fed. Appx. 324 (6th Cir. 2003) (unpub.). Further, as noted by Cahill, there was no need or
compelling reason to specifically request Stevenson’s reinstatement prior to the strike given that
the Board had already unconditionally ordered that Stevenson be offered reinstatement (Tr.
185).35
(5) Union’s efforts to ensure that the strike was a ULP strike. This is also a curious
argument. As indicated above, it is uncontroverted that the employees at the May 13 meeting
freely and unanimously voted, by secret ballot, to engage in a ULP strike. There is no evidence
whatsoever that the employees were threatened or otherwise coerced by Cahill or other union
officials. Nevertheless, the Respondents argue that an adverse inference should be drawn from
the fact that Cahill and Lohman advised the employees on whether to engage in a ULP or
economic strike, educated them about the rules for engaging in a ULP strike, and provided
assistance to them so that they followed the rules and did not lose their jobs. Such an argument
must obviously fail; to hold otherwise would require employee representatives to be nothing but

34 Poindexter appeared to acknowledge a similar mistake in testifying about the last time he
had seen a proposed contract. He initially said he had not seen one since April or May 2010 (Tr.
251), but on further questioning corrected the date to 2009 (Tr. 266), which is consistent with the
weight of the evidence (R. Exh. 13; Tr. 569–572; see also Tr. 236, 245–246 (employee Mooney’s
testimony)).
35 This fact also clearly distinguishes Winn-Dixie Stores, supra, where the unfair labor practice
charges had not even been filed at the time the employees went on strike.
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potted plants. See also Dorsey Trailers, 327 NLRB 835, 856 (1999), enfd. in relevant part 233
F.3d 831, 839 (4th Cir. 2000) (rejecting a similar argument, noting that it was the employer that
committed the unfair labor practices and the union could not “be blamed for having had sufficient
foresight and being intuitive enough to advise its members against walking out to protest
something other than unfair labor practices”).
(6) Statements by strikers. This last argument, like the first, requires more discussion.
The Respondents cite several statements made by the strikers, which they argue reflect the true
economic motive of the strike. Each is addressed below.
Employee Ipock’s statements. Davidson testified that, on the morning of the strike, he had
the following conversation with employee Ipock in the parking lot in the presence of Mooney and
other named employees:
[Ipock] . . . first made a comment about―that we, or Spurlino Materials, couldn’t
replace them, or him permanently, if they were on an unfair labor practice strike.
And I just reiterated to him that we were going to hire replacement employees
because we had to continue to run the business. After that . . . he stated that―he
said, “Jeff, you know this doesn’t have anything to do with Gary Stevenson. All we
want is to get negotiations started.” (Tr. 585–588).
In response to this testimony, the General Counsel called Ipock, who denied that he made
any such statement. In fact, he testified that he said the opposite; that “if you just put Gary
Stevenson back to work, this would be all over.” (Tr. 730, 736). However, in response to Ipock’s
denial, the Respondents presented handwritten notes of the conversation that Davidson testified
he made later that morning (Tr. 743). In relevant part, the notes stated:
I pulled into work and went back to where the employees were gathered to talk to
them. I informed the employees that we intended to operate our business every
day and we would be hiring replacement drivers. Anyone who did not want to work
would have to leave the property. Jeff Ipock said you can replace us during a ULP
strike and said “Jeff you know what this is about, there is none of us that would
back up Gary Stevenson. This is just to get negotiations started and get a contract.
(R. Exh. 19)36
So, what should be made of this? On the one hand, it is uncontroverted that Mooney and
other named employees were present and would have heard Ipock’s comment (Tr. 737–738).
Further, neither he nor any of the others were called or specifically asked by the General Counsel
or Union whether they heard Ipock make a comment to Davidson.37 As fellow strikers, they were
not mere “bystanders,” whose testimony normally cannot reasonably be presumed to favor one
side or the other (Torbitt & Castleman, Inc., 320 NLRB 907, 910 fn. 6 (1996), affd. on point, 123
F.3d 899, 907 (6th Cir. 1997)). Thus, not only may the failure to call them be weighed in

36 Presumably, the word “can” in the fourth sentence is a clerical error, and Davidson meant to
write “can’t” or “cannot.” I also presume that both the fourth and fifth sentences were meant to be
entirely in quotes, notwithstanding the absence of any closing quotation marks on the copy
Respondents placed in evidence.
37 Mooney and another General Counsel witness, Poindexter, did testify to some extent about
the morning of the strike. But, neither was specifically asked if he heard Ipock make a comment to
Davidson, and neither otherwise provided any testimony probative of the issue in describing the
events of that morning. (See Tr. 212, 253.)
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evaluating credibility (C & S Distributors, 321 NLRB 404 fn. 2 (1996)), but an adverse inference
may be taken in the absence of any explanation (Daikichi Corp., 335 NLRB 622, 623 (2001),
enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003) (unpub.)). No explanation has been offered here. Thus,
I conclude that, if they had been called or specifically asked to testify about the comment, the
other strikers would not have corroborated Ipock’s testimony.
On the other hand, “what form the contradiction or admission would have taken is, of
course, speculative.” Advocate South Suburban Hosp. v. NLRB, 468 F.3d 1038, 1048 (7th Cir.
2006). Further, it is highly doubtful that their testimony would have supported Davidson’s version,
which is entirely unbelievable. As noted by the General Counsel, it makes no sense that Ipock (or
any reasonable striker) would say that the company cannot permanently replace the employees if
they are engaged in a ULP strike, and in the next breadth admit that the employees are not
engaged in a ULP strike.38
Moreover, there are ample reasons to question Davidson’s own credibility. For example,
Davidson testified that he did not even know the difference between an economic and a ULP
strike at the time of his August 3 conversation with Ipock (Tr. 743). However, the previous, May
19 “strike information” memo (R. Exh. 10), which he admittedly co-authored with Spurlino and
personally read and distributed to employees, specifically described the legal ramifications of an
“economic” strike.39 Davidson also testified that the sole difference between the parties at the
last, August 2009 bargaining session was the $1000 signing bonus proposed by the Union (Tr.
619). However, this is directly contrary to what he told the unit employees in the May 21, 2010
memo that he admittedly co-authored with Spurlino and distributed to employees. See part II.B,
supra. See also fn. 14, supra.
I therefore do not infer that the other strikers would have corroborated Davidson’s version
of Ipock’s comment. See Daikichi Corp., 335 NLRB at 623 (judge may properly consider all the
circumstances in evaluating whether non-testifying witnesses who may reasonably be assumed to
favor one party would have corroborated the testimony of the opposing party’s witnesses). This,
of course, leaves no version to credit, which may be closest to the truth, i.e. Ipock’s comment may
not have remotely resembled either version or occurred at all. In any event, I conclude that,
whatever Ipock may have said to Davidson in the parking lot, it would not outweigh all of the other
objective and subjective evidence cited above that the strike was caused, at least in part, by the
Respondents’ unfair labor practices.
Finally, the Respondents also cite Ipock’s testimony at the hearing that he “was not
concerned about going on strike for [Stevenson]” (Tr. 738). The Respondents suggest that Ipock
meant he did not strike for Stevenson. However, Ipock explained that, by “not concerned,” he
meant he had “no qualms about going on strike for that reason” (Tr. 739). Thus, the
Respondents’ suggestion is clearly without merit.

38 It is also noteworthy that there is no clear record evidence that Ipock even attended the
earlier, May 2010 union meeting or participated in the strike vote. Thus, it is questionable whether
his statements about the employees’ reasons for voting to strike at that meeting should carry any
weight at all.
39 The Respondents’ posthearing brief (p. 10) appears to concede, consistent with employee
Ipock’s testimony (Tr. 730), that Davidson again referred to the walkout as an “economic strike”
during his discussion with Ipock.
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Employee Poindexter’s statements. Employee Poindexter admitted at the hearing that he
told an SMI employee (Dexter)―who normally worked as SMI’s sales representative but had
crossed the picket line at one of the Company’s jobsites―that he was “messing with my
livelihood” (Tr. 261). Poindexter also admitted that he was upset about the failure to get a contract
at the time of the strike (264–265). The Respondents cite these admissions as evidence that the
strikers had an economic motive.
However, while only some strikes may have an economic motive, all strikes have an
economic impact on the strikers: the strikers do not get paid while they are on strike. And if
other employees cross the picket line and continue to work, the strike, and therefore the impact on
the strikers’ “livelihood,” may be prolonged.
Further, even if Poindexter’s admissions do betray an economic motive for the strike, this
does not mean that the employees were not also motivated by the Respondents’ unremedied
unfair labor practices. Indeed, as indicated above, Poindexter also testified that he was upset
about what the Company had done to Stevenson. I credit Poindexter’s testimony in this regard as
it is consistent with the weight of the objective evidence and his overall testimony and demeanor
betrayed no substantial reason to discredit it.
Employee Mooney’s statements. Finally, the Respondents cite statements that Mooney
made in a September 8, 2010 letter that he admittedly sent to the International Union seeking help
in getting the employees’ jobs back (R. Exh. 14). Specifically, the Respondents cite Mooney’s
statements that:
Jim [Cahill] thought we could strike this job, also picket at the plant and picket some
small jobs and put the pressure on Spurlino Materials to go to the negotiation table;
We haven’t had no pay raises or vacations and other things since Spurlino bought
out American Concrete. Spurlino doesn’t negotiate on fair terms. We thought if we
strike for unfair labor practices put a little pressure on them to get to the negotiation
table then we can discuss other issues too; [and]
On August 8, 2010, we all agree we did all we could on hurting Spurlino with the
jobs, even though we still couldn’t get Spurlino to the negotiation table.
On their face, these statements lend support to the Respondents’ position. However, the
letter, which is six handwritten pages long, also contains several other statements that support the
contrary position. For example, it states that
It has been an ongoing battle since [the representation election] with negotiations
and unfair labor practices;
We went on strike for unfair labor practices for the firing of Gary Stevenson and
other issues that we won with the National Labor [Relations] Board. Over the last
four years we won a lot of issues with the NL[R]B but Spurlino would appeal it then
it went to the Federal NL[R]B. We still won and they appeal it again and now its in
Washington, D.C. NL[R]B where we’re waiting for the results; [and]
Spurlino said we strike for economic[] reasons which is untrue but that’s what they
said to the NL[R]B.
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Further, when asked to explain his letter at the hearing, Mooney testified that he was
“frustrated in general over everything that happened . . . not just the contract.” He testified that the
employees “always hoped that if they went on strike for unfair labor practices and getting Gary’s
job back, that after all that was over, maybe that we could get back to the negotiation table.” (Tr.
223, 227). Like Poindexter’s testimony, I credit Mooney’s testimony in this regard as it is
consistent with the weight of the objective evidence and his overall testimony and demeanor
betrayed no substantial reason to discredit it.40
In sum, after carefully considering all the evidence, I conclude that the employees struck
at least in part over the Respondent’s unlawful discharge and failure to reinstate Stevenson. In
agreement with the General Counsel, therefore, I find that the strike was a ULP strike under extant
Board and court precedent.41
b. Whether the strike was an unprotected partial strike.
As noted, the Respondents also argue that they had no obligation to reinstate the strikers
because the strike excluded the stadium and convention center project, and was therefore an
unprotected partial strike. In support, the Respondents cite the well-established principle that a
“strike or stoppage must be complete, that is, the employees must withhold all their services from
their employer,” Audubon Health Care Center, 268 NLRB 135, 137 (1983); they “must completely
stop working or risk being discharged for engaging in an unprotected activity,” Vencare Ancillary
Services, 352 F.3d 318, 325 (6th Cir. 2003).
However, the cases cited by the Respondents applying this principle are clearly
distinguishable. In those cases, the employees remained on the premises and unilaterally
continued to perform some work, without the employer’s agreement or sanction, while refusing to
perform other work. Thus, for example, in Audubon Health Care, the nurses aides continued to

40 The Respondents’ posthearing brief (p. 13, fn. 10) questions Mooney’s credibility, at least
implicitly, on the ground that he denied sending a short comment to the International Union by
email the day before he sent his letter (Tr. 217–218). The Respondents submitted into evidence
an email from the International to someone else that includes the subject comment (R. Exh. 15).
Although the email indicates that the comment was submitted by an “anonymous user,” it lists
Mooney’s name, address, and phone numbers, as well as his wife’s email address, under
“submitted values.” In addition, like the letter, it complains that the employees lost their jobs by
“following” Cahill’s “lead” and bad “advised” [sic], and incorrectly states that the strike ended on
August 9. (Mooney admitted that “dates are not my specialty,” Tr. 213.) However, there is no
apparent reason why Mooney would falsely deny sending the comment, as it contains nothing that
was not said in the letter (which he readily admitted sending). Nor does it contain anything
particularly damaging. Accordingly, while it is likely that Mooney (or his wife, based on what
Mooney wrote and/or told her) sent the comment, it is also likely that his testimony to the contrary
was due to faulty memory (or lack of knowledge of his wife’s actions) rather than deliberate
untruthfulness.
41 Some cases indicate that a strike may be found to be economic, even if the employees were
motivated in part by the employer’s unfair labor practices, if the employer can show that the
employees would have struck even if it had not committed unfair labor practices. See Post
Tension of Nevada, 352 NLRB 1153, 1163 (2008), enfd. 331 Fed. Appx. 3 (D.C. Cir. 2009)
(unpub.), citing Larand Leisurelies v. NLRB, 523 F.2d 814, 820 (6th cir. 1975). But see, to the
contrary, Decker Coal Co, 301 NLRB 729, 746 (1991), citing Northern Wire, 887 F.2d at 1319–
1321. In any event, even assuming this is a correct statement of the law, I would find, for the
reasons set forth above, that the Respondents failed to make such a showing.
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care for patients in their own sections, but refused to do any work in an “open” section. And in
Vencare, the physical rehabilitation employees refused to see any patients whatsoever, but
continued to do filing and paperwork (for which they would have been entitled to pay under the
Fair Labor Standards Act). See also NLRB v. Montgomery Ward & Co., 157 F.2d 486, 496–497
(8th Cir. 1946) (employees continued to work in the plant, but refused to process certain orders).
Here, in contrast, although the employees made themselves available to work on the
stadium and convention center project during the strike, and even initially grieved the Company’s
failure to call them in for work on that project, they did not unilaterally continue to perform that or
any other work. Cf. Virginia Stage Lines v. NLRB., 441 F.2d 499, 503 fn. 5 (4th Cir. 1971), cert.
denied 92 S.Ct. 105 (1971) (finding company’s partial-strike analogy “particularly vulnerable”
where the drivers were called to work only when their names reached the top of the list, and
voluntarily relinquished that position, performed no work, and dropped to the bottom of the list
without pay when they were assigned to the struck charters); and NLRB v. Deaton Truck Line,
389 F.2d 163, 168–169 (5th Cir. 1968) (rejecting company’s partial-strike argument where the
owner-drivers’ pay was predicated on the loads they carried, they collected no pay for the relevant
period, and they therefore made “only an uncompensated offer . . . to work on other terms”).
Moreover, as indicated above, the employees made themselves available and initially
demanded work on the stadium and convention center project only because, unlike other projects,
it was covered by the no-strike/no-lockout clause in the PLA. The no-strike clause explicitly
forbade the employees from engaging in either an economic or an unfair labor practice strike on
the project. (See fn. 13, supra.) Thus, the facts and circumstances of this case do not support a
finding that the employees were attempting “to set their own terms and conditions of employment
in defiance of their employer’s authority” by engaging in a partial strike. Audubon Health Care
Center , 268 NLRB at 136. On the contrary, they indicate that the employees were acting in
accordance and compliance with the terms and conditions contained in the PLA, to which both the
Company and the Union were signatory.

Finally, if the employees had violated the PLA and refused to perform any work on the
stadium and convention center project, they would have thereby lost their protection under the Act
just as surely as they would have by violating the legal prohibition on partial strikes. See Mastro
Plastics, supra (a strike in violation of an express no-strike clause is unprotected). Thus, if
adopted, the Respondents’ argument for the rote application of the “partial-strike” prohibition in
these circumstances would result in a classic “catch 22,”42 whereby the strike would be
unprotected and the employees would lose their protection under the Act regardless of whether
they struck the project. In short, the employees would be forced to choose between forfeiting their
right to strike or forfeiting their jobs.
Clearly, such a result would be inconsistent with the general statutory policy favoring the
right to strike. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 234-235 (1963) (“While Congress
has from time to time revamped and redirected national labor policy, its concern for the integrity of
the strike weapon has remained constant.”). See also Radio Officer’s Union v. NLRB, 347 U.S. 17,
40 (1954) (“The policy of the Act is to insulate employees’ jobs from their organizational rights”).
Thus, there must be a strong basis, not just in the letter or language of the partial-strike
prohibition, but in its underlying purpose, for the Board to endorse such a forfeiture. See generally

42 “A dilemma or circumstance from which there is no escape because of mutually conflicting
or dependent conditions” (The Concise Oxford Dictionary (1990)); “a ‘no-win’ situation or ‘double
bind’” (Wikipedia (2011)).
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NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 184 (1967); and NLRB v. Drivers, Chauffeurs,
Helpers, Local 639, 362 U.S. 274, 284 (1960).
There is no such basis, at least not on the facts here. As the Sixth Circuit stated in
Vencare, “the underlying rationale of the prohibition on partial strikes is that the employer has the
right to know whether or not his employees are striking.” 352 F.3d at 324 (citing Vic Koenig
Chevrolet, 263 NLRB 646, 650 (1982)). See also Shelly & Anderson Furniture v. NLRB, 497 F.2d
1200, 1203 (9th Cir. 1974) (such actions “impede the employer from using replacement or
temporary employees while the protesting employees continue to draw their wages” and “are
unprotected because they make it impractical for the employer to operate his business properly.”)
There was no ambiguity about the employees’ intentions in this case. The employees clearly
stated that they were on strike, explained that they would remain available to perform work on the
stadium and convention center project only because of their contractual agreement with the
Company not to strike that project, and advised the Company that it could contact them by phone
for work on that project. There was also no showing that the employees’ actions impeded the
Company from using replacement or temporary employees, or made it impractical for the
Company to operate its cement business. Indeed, as indicated above, the Company continued to
deliver concrete from the very first day of the strike, including to the stadium and convention
center project, using temporary Ohio drivers and/or replacements. Further, in doing so, the
Company at all times remained in control of the scheduling. Thus, the mere fact that the strikers
offered to work at the PLA site did not by itself prevent the Company from operating its business.43
Accordingly, for all the foregoing reasons, in agreement with the General Counsel, I find
that the strike was a protected unfair labor practice strike. In the absence of any other asserted
defenses to the allegations, I therefore find that the Respondents unlawfully refused to reinstate
the 12 strikers when they unconditionally offered to return to work effective August 12, 2010.
Conclusions of Law
By failing and refusing, on August 12, 2010, to immediately reinstate 12 employees who
had engaged in an unfair labor practice strike and had made an unconditional offer to return to
work, the Respondents have engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.

43 As indicated above, SMI schedules the first loads of the day by seniority, and assigns
subsequent loads by first back in, first back out. However, it is quite common, even in normal
circumstances, for SMI to modify its daily schedule due to delays, customer changes, and other
unforeseen exigencies, and to at least sometimes call in previously unscheduled employees to
handle extra loads (Tr. 632–633, 638, 681–682). Indeed, the dispatch sheet specifically lists the
home and/or cell phone number for every driver (R. Exh. 12). (Although employee Mooney
testified that he could not remember ever being called in (Tr. 247), he is second in seniority and
would normally be scheduled for the first loads of the day.) There seems little question, however,
that calling the strikers in for PLA work only would have been inconsistent with the usual dispatch
procedure. In any event, I need not, and do not, decide in this case whether SMI violated the PLA
by failing to do so. Nothing in this decision prevents the Company from arguing, in any
subsequent proceeding that may arise relating to the Union’s grievance, that, in Davidson’s words,
it would have been “pretty impossible” to call strikers in for PLA work only (Tr. 591–593).
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Remedy
Having found that the Respondents have engaged in certain unfair labor practices,
consistent with precedent I shall order them to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
Specifically, I shall order the Respondents, within 14 days of the Board's Order, to offer the
12 employees who engaged in an unfair labor practice strike in August 2010, and were not
immediately reinstated on request, recall to their former positions, terminating, if necessary, any
replacements who occupy those positions, or if those positions no longer exist, to substantially
equivalent positions without prejudice to their seniority or any other rights or privileges previously
enjoyed.44 I shall also order the Respondents to make whole the unfair labor practice strikers who
were denied reinstatement for any loss of earnings and other benefits suffered as a result of the
discrimination against them, with interest at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010). In addition, I shall order the Respondents to expunge from their files any
reference to the failure to reinstate the strikers, and to notify them in writing that this has been
done. Finally, I shall order the Respondents to post a notice to all employees in accordance with
J. Picini Flooring, 356 NLRB No. 9 (2010).
Accordingly, on these findings of fact and conclusions of law and on the entire record, I
issue the following recommended45
ORDER
The Respondents, Spurlino Materials, LLC, and Spurlino Materials of Indianapolis, LLC (a
single employer), Indianapolis, Indiana, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to immediately reinstate employees who engage in an unfair labor
practice strike, upon their unconditional offer to return to work.
(b) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the Board's Order, offer the 12 employees who engaged in an unfair
labor practice strike in August 2010, and were not immediately reinstated on request, recall to their
former positions, terminating, if necessary, any replacements who occupy those positions, or if
those positions no longer exist, to substantially equivalent positions without prejudice to their
seniority or any other rights or privileges previously enjoyed.

44 The General Counsel’s posthearing brief requests that all 14 of the employees named in the
complaint be ordered reinstated with backpay. However, as indicated in the Union’s posthearing
brief, the order should properly require reinstatement and backpay for only 12 of the named
employees. See fn. 16, supra.
45 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) Make the unfair labor practice strikers whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of the Board’s Order, remove from their files any
reference to the unlawful failure to reinstate the strikers, and within 3 days thereafter notify them in
writing that this has been done and that the failure to reinstate them will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at their facilities in and around
Indianapolis, Indiana, copies of the attached notice marked “Appendix.”46 Copies of the notice, on
forms provided by the Region, after being signed by the Respondents’ authorized representative,
shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic means, if the Respondents
customarily communicate with their employees by such means. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondents have
gone out of business or closed the facilities involved in these proceedings, the Respondents shall
duplicate and mail, at their own expense, a copy of the notice to all current employees and former
employees employed by the Respondents at any time since August 12, 2010.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondents have taken to comply.
Dated, Washington, D.C., March 15, 2011
__________________________________
Jeffrey D. Wedekind
Administrative Law Judge

46 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
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Indianapolis, IN
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered
us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail or refuse to immediately reinstate employees who engage in an unfair labor
practice strike, upon their unconditional offer to return to work.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the Board's Order, offer the 12 employees who engaged in an unfair
labor practice strike in August 2010, and were not reinstated on request, recall to their former
positions, terminating, if necessary, any replacements who occupy those positions, or if those
positions no longer exist, to substantially equivalent positions without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make whole the 12 unfair labor practice strikers who were denied reinstatement for any
loss of earnings and other benefits suffered as a result of our discrimination against them, with
interest compounded daily.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference
to the unlawful failure to reinstate the strikers, and within 3 days thereafter notify them in writing
that this has been done and that our failure to reinstate them will not be used against them in any
way.
SPURLINO MATERIALS, LLC and SPURLINO
MATERIALS OF INDIANAPOLIS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
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Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204-1577
Hours: 8:30 a.m. to 5 p.m.
317-226-7382.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 317-226-7413.