On November 13, 2015, the United States Court of Appeals for the District of Columbia Circuit (the “Court”) affirmed a National Labor Relations Board (the “Board”) order requiring a concrete company to reinstate striking workers. Spurlino Materials, LLC v. NLRB, Case Nos. 12-1034 and 12-1123 (D.C. Cir. Nov. 13, 2015).  The Court’s decision highlights the difference between economic and partial strikes (during which the striking employees run the risk of being replaced) and unfair labor practice strikes (which entitle the striking employees to reinstatement if they wish to return to work).

In 2006, a union was certified as the exclusive collective bargaining representative of the employer’s drivers and plant operators. Over the following years, the union and the employer engaged in several unsuccessful bargaining sessions.  In 2007, during the ongoing negotiations, the employer terminated a vocal union supporter.  The union challenged the termination as unlawful and, in 2009, the Board agreed and ordered the employer to reinstate the employee.  Rather than reinstate the employee, however, the employer appealed the Board’s decision in federal court.

While the appeal was pending, the union held an employee meeting to provide updates on both the contract negotiations and the status of the Seventh Circuit appeal. After explaining the difference between economic and unfair labor practice strikes, the union president recommended that, if the employees decided to strike, the strike should be over the employer’s unfair labor practices.  The employees voted unanimously to engage in an unfair labor practice strike and notified the employer of the same.  The employees also informed the employer that they would abide by a no-strike clause contained in a project labor agreement governing construction of a convention center.

Over the course of the strike, the employer continued its operations using employees from a sister company and replacement workers. Although the striking employees were willing to work on the convention center project, the employer did not assign them any such work.  After nine days, the striking employees notified the employer that they were prepared to end the strike and unconditionally return to work.  The employer, however, refused to reinstate the striking employees, claiming that it was under no obligation to do so because the strike was unprotected as an economic or partial strike.  After the union successfully pursued an unfair labor practice charge and the Board ordered the employer to reinstate the striking employees, the employer petitioned the Court for review.

The Court rejected each of the employer’s arguments. First, the Court agreed with the Board that the strike at issue was an unfair labor practice, not an economic, strike.  Under applicable precedent, if a strike has more than one cause, it still is considered an unfair labor practice strike if an unfair labor practice has “anything to do with causing” the strike.  In this case, there was substantial evidence, including the strike letter and testimony from striking employees, that the employees voted to strike because of the employer’s refusal to comply with a Board order and reinstate a union supporter.  The Court also concluded that the employees’ agreement to abide by a no-strike clause in the project labor agreement did not render their strike an unprotected partial strike.  The Court noted that the employer’s partial strike argument amounted to a “Catch-22” for the striking employees.  If they honored the no-strike clause, then they would be engaging in an unprotected partial strike; if they refused to perform work on the convention center, then they could be terminated for violating the no-strike clause.  Either way, the employees could lose their jobs.  Finally, the Court rejected the employer’s challenge to the Board’s finding that the employer and its sister company were a “single employer,” which could be held jointly and severally liable for any unfair labor practice committed by either one.  The Court, like the Board, concluded that the two companies had common majority ownership; common top-level decisionmaking; common operations and common control over labor relations.