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Complying with PLA No-Strike Clause Amid Strike Not a Partial Strike: DC Circuit
Practical Law Legal Update w-000-8308 (Approx. 5 pages)
Complying with PLA No-Strike Clause Amid Strike Not a Partial Strike: DC Circuit
by Practical Law Labor & Employment
| Published on 17 Nov 2015 • USA (National/Federal) |
In Spurlino Materials, LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that a protected strike by union employees aimed at an employer's unfair labor practices did not become an unprotected partial strike when the employees complied with a project labor agreement's (PLA) no-strike clause by not striking only at the PLA worksite.
On November 13, 2015, in Spurlino Materials, LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that a protected strike by union employees to protest the employer's alleged unfair labor practices (ULPs) did not become an unprotected partial strike when the employees complied with a project labor agreement's (PLA) no-strike clause by declining to strike the employer only at the PLA project, but struck at the employer's other projects. The court enforced the decision and order of the panel (Board) heading the NLRB's judicial functions and affirmed its analysis of the purported partial strike. (https://www.cadc.uscourts.gov/internet/opinions.nsf/FD8F7BDB263083F485257EFC0054480C/$file/12-1034-1583402.pdf.)
Background
Spurlino, a concrete supplier, and the union representing Spurlino's drivers and plant operators were signatories to a multi-union and multi-employer PLA related to the construction of a convention center. The PLA included a no-strike clause. The PLA was the only agreement covering the bargaining unit employees, as Spurlino and the union did not successfully negotiate a separate collective bargaining agreement.
In 2010, the union engaged in a strike aimed at Spurlino's previously-adjudged unfair labor practices for which compliance and enforcement proceedings remained pending. During the strike, the union honored the PLA's no-strike provision by excluding the project covered by the PLA from its strike activities. After the striking employees unconditionally offered to return to work, the employer refused to reinstate them, claiming that the strike was an economic strike (for which it could lawfully permanently replace strikers) or that it was an unprotected partial strike (through which they forfeited NLRA protections) because the employees chose to perform some but not all of the employer's work.
The union filed a new ULP charge, alleging that Spurlino had violated Section 8(a)(1) and 8(a)(3) of the NLRA be failing to reinstate the employees. The NLRB ultimately ordered Spurlino to reinstate the employees. Spurlino petitioned for review of the NLRB's order.
Outcome
The DC Circuit affirmed the NLRB's conclusions that:
- The employer unlawfully refused to reinstate workers from the strike, which was at least in part a ULP strike, and not solely an economic strike as Spurlino contended.
- The employees' protected ULP strike did not become an unprotected partial strike simply because the union:
- complied with the PLA's no-strike clause and declined to strike on that project; and
- struck only the employer's other projects.
The DC Circuit noted that:
- Employees who engage in a ULP strike are entitled to reinstatement to their positions, even if the employer hired replacements. However, an economic strike does not necessarily entitle striking employees to reinstatement. (Gen. Indus. Emps. Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C. Cir. 1991); NLRB v. Int'l Van Lines, 409 U.S. 48, 50-51 (1972).)
- An employer violates the NLRA by refusing to reinstate ULP strikers who make unconditional offers to return to work (Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 141-42 (D.C. Cir. 1999)).
- A strike intended by employees:
- solely to obtain favorable economic terms is an economic strike; and
- at least partially to protest an employer's ULPs (even if there are other motives and protesting ULPs is only a "contributing factor") is an unfair labor practice strike.
- The NLRA protects only "complete strikes" (Audubon Health Care Ctr., 268 N.L.R.B. 135, 137 (1983)).
- Employees who engage in a "partial strike" by picking and choosing the work they will do, and when they will do it, lose NLRA protection (Inova Health Sys. v. NLRB, 795 F.3d 68, 87 (D.C. Cir. 2015)).
The DC Circuit found that:
- The NLRB's classification of the strike as a ULP strike was supported by substantial evidence that the employees went on strike in part to protest Spurlino's discharge and refusal to reinstate an employee who was a key union supporter.
- The strike was not a partial strike and was therefore entitled to NLRA protection because the employees were:
- complying with the terms of the PLA, which prohibited them from striking on one particular project;
- not trying to dictate their employment terms or supersede their employer's prerogative to assign work; and
- not leaving Spurlino in doubt as to their strike status.
- Spurlino's position, if accepted, would mean that the employees were faced with an untenable "Catch 22" choice between:
- engaging in a partial strike and losing NLRA (and job reinstatement) protection by honoring the no-strike clause and performing PLA work; or
- breaching the no-strike clause by refusing to perform the PLA work and therefore having the strike lose its protected status anyway.
- Allowing a no-strike clause involving one project to force employees to choose between forfeiting their jobs or forfeiting their right to strike does not accord with the requirement that a waiver of the right to strike be clear and unmistakable (Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)).
The DC Circuit further found that Spurlino's employees were entitled to reinstatement, backpay and other remedies.