LINEBACK v. IRVING READY-MIX (August 5, 2011)

Irving Ready-Mix has five concrete plants in northern Indiana. For years, its truck drivers have been represented by the Teamsters. The last collective bargaining agreement expired on May 31, 2010. Attempts to negotiate a new agreement failed and the drivers went on strike the next day. Irving announced that it would no longer recognize the union as the employees' bargaining representative and offered jobs directly to the drivers. The union filed unfair labor practice charges with the NLRB. A week after an ALJ heard evidence, but before its decision, the NLRB regional director filed a petition for a section 10(j) injunction. The ALJ then ruled and concluded that Irving was subject to the NLRA unfair labor practice restrictions and that it had violated two of those provisions. In reaching its conclusion, it rejected Irving's contention that it was not bound by the unfair labor practices provisions because it was "engaged primarily in the building and construction industry" under section 8(f). Judge DeGuilio (N.D. Ind.) granted the motion for a preliminary injunction and ordered Irving to recognize the union. Irving appeals.

In their opinion, Seventh Circuit Judges Manion, Wood and Hamilton affirmed. A section 10(j) injunction is an extraordinary remedy and should be granted only when necessary to protect the integrity of the collective bargaining process. Here, Irving does not challenge three of the four requirements for such an injunction -- irreparable harm, balance of harms, and the public interest. It only challenges the assessment of likelihood of success. Its contention is that ready-mix concrete companies are "engaged primarily in the building and construction industry" and not subject to some of the unfair labor practice restrictions. The Court noted that the Board has repeatedly held since 1988 that ready-mix concrete employers are not in the building and construction industry as that phrase is used in the statute. Irving, on the other hand, suggests that the 1988 decision is wrong and cites an earlier Board decision which held that a flooring installer was "primarily engaged." The Court disagreed and found the post-1988 jurisprudence solidly in favor of the Board's position.