Dilling Mechanical Contractors, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 2011

357 N.L.R.B. 544 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 56
544
Dilling Mechanical Contractors, Inc. and Indiana
State Pipe Trades Association, United Associa-
tion of Plumbers and Pipefitters, AFL–CIO, and
Plumbers and Steamfitters Local Union No. 166,
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of
the United States and Canada. Cases 25–CA–
025094 and 25–CA–025485
August 19, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On May 12, 2000, Administrative Law Judge Paul Bo-
gas issued the attached decision. The Respondent filed a
statement of exceptions, and the General Counsel and the
Union each filed an answering brief.
On September 26, 2002, in an unpublished order, the
Board remanded this proceeding to Judge Bogas for fur-
ther consideration in light of BE & K Construction Co. v.
NLRB, 536 U.S. 516 (2002). On February 28, 2003,
Judge Bogas issued the attached supplemental decision.
The Respondent and the General Counsel each filed ex-
ceptions and a supporting brief to the supplemental deci-
sion, the Union filed an answering brief, and the Re-
spondent filed a reply brief. The American Federation of
Labor and Congress of Industrial Organizations filed an
amicus brief, and Associated Builders and Contractors,
Inc. and LPA, Inc. filed a joint amicus brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision, the supple-
mental decision, and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings,
findings,2 and conclusions only to the extent consistent
with this Decision and Order.
The complaint alleges the following violations: (1) that
the Respondent violated Section 8(a)(1) of the Act by
filing and maintaining a State court lawsuit against the
Union and one of its organizers; and (2) that the Re-
spondent violated Section 8(a)(1) of the Act by its dis-
covery requests in its lawsuit seeking the names of the
Respondent’s employees who joined the Union. The

1 Member Becker is recused and took no part in the consideration of
this case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
General Counsel now requests withdrawal of the com-
plaint.3 For the reasons set forth below, we grant the
General Counsel’s request to withdraw the retaliatory-
lawsuit allegation. We deny his request to withdraw the
discovery allegation, however, and we find that the Re-
spondent’s discovery requests violated Section 8(a)(1).
I. FACTUAL BACKGROUND
The Respondent is a building contractor in Indiana. In
1992, the Union commenced an organizing campaign to
represent the Respondent’s plumbing and pipefitting em-
ployees. The Board found that the Respondent commit-
ted numerous unfair labor practices in response to that
campaign. See Dilling Mechanical Contractors, 318
NLRB 1140 (1995), enfd. 107 F.3d 521 (7th Cir. 1997),
cert. denied 522 U.S. 862 (1997). The Union neverthe-
less continued its organizing efforts.
In August 1995, Paul Long, the lead organizer for the
Union, removed several bags of trash from the Respond-
ent’s dumpster, hoping to find information on how to
contact the Respondent’s employees. On learning of
Long’s conduct, the Respondent filed a lawsuit in Indi-
ana trial court against Long and the Union in November
1995. The lawsuit alleged that Long and the Union, by
taking the Respondent’s trash, committed the criminal
acts of theft, receiving stolen property, criminal trespass,
and burglary under Indiana law. The lawsuit also alleged
that the conduct constituted unlawful racketeering under
the Indiana corrupt business influence statute.
In March 1997, the Indiana trial court granted the Re-
spondent’s motion for summary judgment on all its
claims. The trial court reserved for a separate hearing the
issue of damages to be awarded to the Respondent. In
discovery for that hearing, the Respondent sought, inter
alia, the identity of “each and every Union member with-
in Dilling” as well as “each and every documents [sic]
which identifies any and all union members within Dil-
ling.” The trial court granted the Union’s motion for a
protective order precluding disclosure of that infor-
mation.4
The Court of Appeals of Indiana reversed the trial
court’s grant of summary judgment in favor of the Re-
spondent. Long v. Dilling Mechanical Contractors, 705
N.E.2d 1022 (Ind.App. 1999). The court determined that
the Respondent had abandoned its trash, and that the Re-

3 The General Counsel’s exceptions brief is devoted to his argument
that the retaliatory-lawsuit allegation should be withdrawn. He does
not specifically address withdrawal of the discovery allegation. Never-
theless, because the brief contains a general request to withdraw the
entire complaint, we treat the request as encompassing the discovery
allegation.
4 The Union also sought, and was granted, a protective order con-
cerning a number of the Respondent’s additional discovery requests.
DILLING MECHANICAL CONTRACTORS 545
spondent’s property rights were thus not abrogated by
Long’s taking of the trash. The court accordingly con-
cluded that the Respondent “cannot recover on any of the
legal theories it advances,” and instructed the trial court
to dismiss and/or enter judgment against the Respondent
on all of its claims. Id. at 1027.5
II. LEGALITY OF THE RESPONDENT’S LAWSUIT
The judge in his initial decision found that the Re-
spondent’s filing and prosecution of its State court law-
suit violated Section 8(a)(1) of the Act. The General
Counsel alleged, and the judge found, that the lawsuit
was unlawful under Bill Johnson’s Restaurants v. NLRB,
461 U.S. 731 (1983), because it lacked merit—the Re-
spondent had lost upon final adjudication—and because
it was filed with a motive to retaliate against the Union
and Organizer Long for engaging in activity protected by
Section 7 of the Act. On remand from the Board to con-
sider the Supreme Court’s decision in BE & K, the judge
reaffirmed his finding that the lawsuit was unlawful, this
time applying the reasoning set forth in Justice Breyer’s
concurring opinion.6
Reversing his original position, the General Counsel,
in his exceptions to the judge’s supplemental decision,
asserts that under the Supreme Court’s intervening BE &
K decision the Respondent’s filing and maintenance of
the lawsuit were not unlawful, because the lawsuit had a
reasonable basis. The General Counsel accordingly re-
quests withdrawal of the complaint allegation that the
lawsuit violated the Act.
“Once adjudication of a case has begun, the decision
whether to grant the General Counsel’s request to dis-
miss all or part of the complaint is left to the Board’s
discretion[.]” Teamsters Local 75 (Schreiber Foods), 349
NLRB 77, 80 (2007), enfd. in part sub nom. Pirlott v.
NLRB, 522 F.3d 423 (D.C. Cir. 2008). In the circum-
stances presented here, we find it appropriate to grant the
General Counsel’s request.
At issue before the Supreme Court in BE & K was the
validity of the Board’s standard for declaring a complet-
ed lawsuit to be an unfair labor practice. Under that
standard, an unsuccessful lawsuit filed to retaliate for the
exercise of Section 7 rights violated the Act, even if it
was reasonably based. 536 U.S. at 529–530. Adopting a

5 The Respondent’s petition for rehearing and motion for reconsider-
ation were denied by the Court of Appeals of Indiana. The Respond-
ent’s request to transfer the proceeding to the Indiana Supreme Court
was denied. 726 N.E.2d 308 (Ind. 1999) (mem.).
6 Above, 536 U.S. at 538–544. As discussed below, following the
judge’s issuance of his supplemental decision and the parties’ filing of
their exceptions and briefs, the Board, on remand from the Supreme
Court, issued its supplemental decision in BE & K Construction Co.,
351 NLRB 451 (2007).
limiting construction of Section 8(a)(1) to avoid First
Amendment issues, the Court invalidated the Board’s
standard, inasmuch as it allowed the Board to penalize
“all reasonably based but unsuccessful suits filed with a
retaliatory purpose” as the Board had defined such a pur-
pose (“brought with a motive to interfere with the exer-
cise of protected” Section 7 rights). Id. at 536–537.7
The Court left open the possibility that the Board could
declare unlawful an unsuccessful but reasonably based
lawsuit “that would not have been filed but for a motive
to impose the costs of the litigation process, regardless of
the outcome, in retaliation for NLRA protected activi-
ty[.]” Id. at 536–537. On remand, however, the Board
held “that the filing and maintenance of a reasonably
based lawsuit does not violate the Act, regardless of the
motive for bringing it.” BE & K, supra, 351 NLRB at
451. Rather, the Board concluded, the Act prohibits only
lawsuits that are “both objectively and subjectively base-
less.” Id. at 458.8 Under that standard, “a lawsuit that
targets conduct protected by the Act can be condemned
as an unfair labor practice if it lacks a reasonable basis
and was brought with the requisite kind of retaliatory
purpose.” Id. (footnote omitted).
Throughout this protracted proceeding, the General
Counsel has never asserted that the Respondent’s lawsuit
lacked a reasonable basis. Rather, the General Counsel
has contended only that the lawsuit was unsuccessful and
brought with a retaliatory motive, under the prior Board
standard invalidated by the Supreme Court. Thus, the
General Counsel has never asserted a theory that the law-
suit is unlawful under the parameters of the Supreme
Court’s decision or the Board’s supplemental decision in
BE & K. In these circumstances, we grant the General
Counsel’s request to withdraw the complaint allegation
that the Respondent’s lawsuit violated Section 8(a)(1).
III. LEGALITY OF THE RESPONDENT’S
DISCOVERY REQUESTS
The judge found in his initial decision that the Re-
spondent violated Section 8(a)(1) of the Act by its dis-
covery requests seeking the names of the Respondent’s
employees who joined the Union. The judge reaffirmed

7 Chairman Liebman and Member Pearce agree with Justice Breyer’s
concurring opinion in BE & K. That opinion convincingly demonstrat-
ed that the Court’s majority opinion left open the possibility that the
Board may impose unfair labor practice liability in circumstances in
which, although an unsuccessful lawsuit might be reasonably based, the
evidence of retaliation or antiunion motive might be stronger than or
different from that in BE & K, 536 U.S. at 539.
8 Chairman Liebman adheres to her dissent from the Board’s sup-
plemental BE & K decision, but finds that her views expressed there are
not inconsistent with granting the General Counsel’s request here. See
BE & K, supra, 351 NLRB at 460–463 (then-Member Liebman and
Member Walsh, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
this finding in his supplemental decision, observing that
it was unaffected by the Supreme Court’s decision in BE
& K. As stated, we have decided to affirm the judge’s
finding.
The General Counsel’s theory has throughout been that
the Respondent’s discovery requests seeking the names
of the Respondent’s employees who were members of
the Union violated the Act because the requests had an
illegal objective. As the U.S. Court of Appeals for the
District of Columbia Circuit has explained, the Supreme
Court’s decision in BE & K did not alter the Board’s au-
thority to find court proceedings that have an illegal ob-
jective under federal law to be an unfair labor practice.
See Can-Am Plumbing v. NLRB, 321 F.3d 145, 151
(D.C. Cir. 2003).9 We accordingly find it appropriate to
adjudicate this allegation, and we deny the General
Counsel’s request to withdraw it. We further find, in
agreement with the judge, that the Respondent’s discov-
ery requests had an illegal objective and therefore violat-
ed Section 8(a)(1).
It is settled Board law that an employer who seeks to
obtain the identities of employees who engage in union
activities violates the Act. See National Telephone Di-
rectory Corp., 319 NLRB 420, 421 (1995). “The Board
zealously seeks to protect the confidentiality interests of
employees because of the possibility of intimidation by
employers who obtain the identity of employees engaged
in organizing.” Wright Electric, Inc., 327 NLRB 1194,
1195 (1999), enfd. 200 F.3d 1162 (8th Cir. 2000).10
Intimidation of employees was more than a mere pos-
sibility here. As described, this is not the first time the
Respondent has been before the Board. The Board pre-
viously found that the Respondent committed some 20
unfair labor practices in response to its employees’ or-
ganizational efforts in 1992, including physical intimida-
tion, verbal abuse, interrogations, surveillance, and ter-
mination of employees. See Dilling Mechanical Con-
tractors, supra, 318 NLRB 1140. The Seventh Circuit
Court of Appeals, in enforcing the Board’s Order, de-
scribed the Respondent’s “heavy-handed tactics” against
the employees, including its hiring of an ex-Navy SEAL
(with no trade work experience) as a supervisor “to in-
timidate and berate” union supporters. 107 F.3d at 523.
The Respondent’s discovery requests were made a mere
3 months after the court’s enforcement of the Board’s

9 Accord: Manufacturers Woodworking Assn. of Greater New York,
Inc., 345 NLRB 538, 540 fn. 7 (2005); Allied Trades Council, 342
NLRB 1010, 1013 fn. 4 (2004).
10 See Committee on Masonic Homes v. NLRB, 556 F.2d 214, 221
(3d Cir. 1977) (“it is entirely plausible that employees would be
'chilled' when asked to sign a union card if they knew the employer
could see who signed”).
remedial Order, which plainly directed the Respondent,
inter alia, to cease creating an impression among its em-
ployees that their union activities were under surveil-
lance and to cease reprisals against them.11
It is difficult to square the Respondent’s attempted dis-
covery of the union members among its employees with
the proscriptions contained in the Board’s court-enforced
Order. It is also apparent that the Respondent’s discov-
ery requests were not relevant to its lawsuit, given the
trial court’s grant of the Union’s requested protective
order and refusal to enforce the requests. The Respond-
ent accordingly has failed to show any legitimate basis
for its discovery requests.
In all of these circumstances, we find that the Re-
spondent’s discovery requests seeking to identify its em-
ployees who joined the Union had an illegal objective.
Accordingly, those requests violated Section 8(a)(1) of
the Act. See Wright Electric, Inc., supra, 327 NLRB at
1195 (discovery request seeking names of employees
who signed authorization cards has an illegal objective);
see also Guess?, Inc., 339 NLRB 432, 434 (2003) (depo-
sition questions that have an illegal objective are unlaw-
ful under the Act), petition for review dismissed without
prejudice 2003 WL 22705744 (D.C. Cir. 2003).12
ORDER13
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Dilling Mechanical Contractors, Inc., Lo-

11 See 318 NLRB at 1157–1158, enfd. 107 F.3d at 526. The Re-
spondent also committed additional unfair labor practices contempora-
neous with its state court litigation. See Dilling Mechanical Contrac-
tors, 348 NLRB 98 (2006).
12 We reject our dissenting colleague’s position that (1) a violation
cannot be found in the absence of evidence that employees knew of the
discovery requests; and (2) the State court’s protective order mooted
the need for the Board to address the issue here. It is well established
that an employer’s actions may violate Sec. 8(a)(1)—because they have
a reasonable tendency to interfere with, restrain, or coerce employees in
the exercise of their Sec. 7 rights—even when employees are unaware
of what the employer has done. See, e.g., United States Service Indus-
tries, 324 NLRB 834, 835 (1997). The potential chilling effect of the
discovery requests here satisfies this standard. See National Telephone,
supra, 319 NLRB at 421. The need for a Board cease-and-desist order
to deter future, similar violations by the Respondent here, a repeated
violator of the Act, is not negated by the State court rulings, which
were limited to the litigation before it. The Board, of course, has pri-
mary authority to enforce the Act.
13 We have modified the judge’s recommended Order to reflect the
violation found, to provide for the posting of the notice in accord with
J. Picini Flooring, 356 NLRB 11 (2010), and to correct certain inad-
vertent errors. We have substituted a new notice to comport with these
modifications. For the reasons stated in his dissenting opinion in J.
Picini Flooring, Member Hayes would not require electronic distribu-
tion of the notice.
DILLING MECHANICAL CONTRACTORS 547
gansport, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Seeking to identify employees who have joined the
Union.
(b) In any like or related manner interfering with, re-
straining, 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 after service by the Region, post at
its facilities in Logansport, Indiana, copies of the at-
tached notice marked “Appendix.”14 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 25, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 Respondent has
gone out of business or closed the facilities involved in
these proceedings, it shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since June 13, 1997.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HAYES, concurring in part and dissenting in part.
I join my colleagues in granting the General Counsel’s
motion to withdraw the complaint allegation that the Re-
spondent violated Section 8(a)(1) of the Act by filing and
maintaining a state court lawsuit against the Union and
one of its organizers. However, I do not join them in
dictum suggesting that, after BE & K Construction Co. v.
NLRB, 536 U.S. 516 (2002), the Board may still find that
a reasonably based lawsuit is unlawful. In this respect, I

14 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
adhere to the Board majority holding on remand from the
Court that “that the filing and maintenance of a reasona-
bly based lawsuit does not violate the Act, regardless of
the motive for bringing it.”1
The General Counsel did not make separate reference
in his motion to withdraw to the allegation that the Re-
spondent also violated Section 8(a)(1) by its discovery
requests during the damages phase of what was at that
time a meritorious trial court lawsuit. I would deem the
motion to be comprehensive of both allegations and dis-
miss the complaint in its entirety. I therefore need not
pass on the merits of this allegation or the legal theory by
which it should be decided. However, even were I to
accept, arguendo, the argument that the discovery re-
quests could reasonably have the unlawful objective of
chilling employees’ Section 7 rights, I would not find a
violation in the absence of evidence that these attorney-
to-attorney requests were ever communicated to employ-
ees.2 Finally, I find that, in any event, the State court’s
action in denying the request and issuing a protective
order abated any potential chilling effect and effectively
mooted the need for the Board to address this issue.3
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

1 BE & K Construction, 351 NLRB 451, 451 (2007). Like the ma-
jority in that case, I reject my colleagues’ reliance on the concurring
opinion of Justice Breyer in the Court’s decision and find that the con-
curring opinion of Justice Scalia is more instructive of the Court’s
intent in limiting the grounds on which the Board should find lawsuits
violative of the Act. Id. at 457–458. In the circumstances of the case
before us, I find no need to pass on what standard should apply in de-
termining whether a lawsuit is baseless.
2 I disagree with the majority that United States Service Industries,
324 NLRB 834, 835 (1997), may be so broadly construed as to apply to
find a chilling effect in this case. In fact, that case has not since been
cited for the proposition relied on here. The majority also cites Nation-
al Telephone Directory Corp., 319 NLRB 420, 421 (1995). In that
case, unlike here, the respondent’s counsel moved in the presence of an
employee witness for the names of employees who attended a the meet-
ing at which authorization cards were signed.
3 I note that the Board recently granted a charging party’s motion to
withdraw charges in a case pending before it on grounds that state court
action had effectively mooted the need for Board action. Deco-Akal,
Cases 28–CA–21082, 28–CB–6508, unpublished Order dated June 23,
2011.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
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 ac-
tivities.

WE WILL NOT seek to identify employees who have
joined the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.

DILLING MECHANICAL CONTRACTORS, INC.

Joseph P. Sbuttoni III, Esq., for the General Counsel.
Michael L Einterz, Esq. (Einterz & Einterz), of Indianapolis,
Indiana, for the Respondent.
William R. Groth, Esq. (Fillenwarth, Dennerline, Groth &
Towe), of Indianapolis, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was
tried in Indianapolis, Indiana, on March 20 and 21, 2000. The
first of two underlying unfair labor practice charges was filed
by the Indiana State Pipe Trades Association on November 29,
1996, and served on the Respondent on December 3, 1996.
The Indiana State Pipe Trades Association filed the second
charge on July 14, 1997, and served this charge on the Re-
spondent on July 17, 1997. The Regional Director issued a
complaint against the Respondent on October 29, 1999. The
complaint, as amended on March 2, 2000, alleged that the Re-
spondent had violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by filing, maintaining, and prosecuting
a State court lawsuit against the Union and Paul Long in retalia-
tion for their union and other protected activities, including
filing unfair labor practice charges. The Respondent denied
that it had committed any violation of the Act and raised as
affirmative defenses that the complaint failed to state a claim
upon which relief could be granted and that the Board lacked
jurisdiction because the charge was untimely and because the
Union and Long were not “employees” protected by the Act.
At the start of the hearing, the Respondent moved to dismiss
the complaint on essentially the same bases asserted in its af-
firmative defenses. The General Counsel and the Charging
Party opposed the motion to dismiss, and I reserved ruling.
Posthearing briefs were submitted by the General Counsel and
the Respondent and have been considered. Based on the entire
record, including the testimony of the witnesses and my obser-
vation of their demeanor, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation with an office and place of
business in Logansport, Indiana, and is engaged in the construc-
tion industry as an electrical, mechanical, and general contrac-
tor. During the 12-month period prior to the issuance of the
complaint, the Respondent provided services valued in excess
of $50,000 to enterprises within the State of Indiana which are
directly engaged in interstate commerce. The Respondent ad-
mits, and I find, that at all times material to the complaint it has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material to the complaint the Indiana State Pipe
Trades Association and Plumbers and Steamfitters Local No.
166 have been labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a building contractor that constructs fac-
tories. The Respondent’s plumbing and pipefitting workers are
not represented by a union, and since at least 1992, the Pipe
Trades Association, and one of its member unions, Local 166
(the Union), have been engaged in a campaign to organize these
workers. Paul Long became involved with the efforts to organ-
ize the Respondent’s work force in 1992, and on February 1,
1995, he was named lead organizer for the Pipe Trades Associ-
ation. Long has never been employed by, or applied for em-
ployment with, the Respondent. In furtherance of the organiz-
ing campaign, Long has contacted employees of the Respond-
ent through various means, including onsite visits, phone calls,
and mailings. By August 1995, Long had obtained 12 or more
signed union authorization cards from the Respondent’s em-
ployees, and as of late 1996 he had obtained about 50 such
cards. The Union has also filed multiple unfair labor practices
charges against the Respondent, many of them signed by Long.
Richard L. Dilling, the Respondent’s president and owner,
became aware of the Union’s organizing campaign in the early
1990s. The Respondent subsequently embarked on an aggres-
sive campaign to oppose the unionizing effort. On September
18, 1995, the Board affirmed a decision by Administrative Law
Judge Wallace H. Nations, which found that the Respondent
had committed multiple unfair labor practices in its campaign
against unionization.1 Dilling Mechanical Contractors, 318
NLRB 1140 (1995), enfd. 1097 F.3d 521 (7th Cir. 1997), cert.
denied 522 U.S. 862 (1997). The unfair labor practices estab-
lished in the prior case are too numerous to recount here, but
they included: threatening to discharge employees if they en-
gaged in union and protected concerted activities; constructive-
ly discharging, terminating, and otherwise disciplining employ-
ees; enforcing rules more strictly or creating new rules because
of the union activities; interrogating employees about their
union membership and activities; directing strict surveillance,
physical intimidation, and verbal abuse at employees because
of their union activities; and instructing employees to stop their
union and protected concerted activities. In all, 20 unfair labor
practices were found. On February 21, 1997, the United States

1 The case before Administrative Law Judge Nations involved the
Electrical Workers union, as well as the Plumber, and Pipe Trades
Association.
DILLING MECHANICAL CONTRACTORS 549
Court of Appeals for the Seventh Circuit enforced the Board’s
Order against Dilling Mechanical, and commented on the com-
pany’s use of “heavy handed tactics” to oppose the organizing
campaign and to “intimidate and berate employees who sup-
ported” the Electrical Workers union. (GC Exh. 6 at p. 2.)
Despite the Respondent’s tactics, the Union’s organizing ef-
fort continued. In 1995 and 1996 the Union filed 11 unfair
labor practice charges against the Respondent, six of which
were signed by Long. Union organizers distributed a newslet-
ter to workers and also visited the Respondent’s jobsites to
meet with employees. When Malcom Zimmer, a union repre-
sentative, visited one jobsite, an agent of the Respondent ac-
cused him of trespassing. (Tr. 89–90.) The police were called,
but refused to treat Zimmer’s presence as a trespass since the
Respondent had not posted a “no trespassing” sign. (Tr. 97.)
In August 1995, Long removed five or six bags of trash from
the Respondent’s dumpster in hopes of finding documents that
would allow him to contact more of the Respondent’s employ-
ees. The dumpster was on the Respondent’s property, but in a
location adjacent to a public sidewalk and was unlocked. After
examining the contents of the bags, Long concluded that there
was nothing useful, and disposed of the trash in a hotel dump-
ster. Long did not hear anything from the Respondent regard-
ing the removal of the trash until the Respondent filed its com-
plaint in Indiana State court on November 13, 1995, alleging
that Long’s and the Union’s removal and alleged misuse of the
trash constituted “criminal acts,” including racketeering, tres-
pass, burglary, and receipt of stolen property. The Respondent
did not seek injunctive relief, but rather prayed for compensato-
ry, punitive, and treble damages.2
In the winter 1996, Stan Beecher, who was then the Re-
spondent’s superintendent and agent, told Jeff Smith, an em-
ployee who had been seen talking to union organizers, that it
would be a mistake to join the Union since the Respondent had
filed a lawsuit that would keep the Union from operating. On
another occasion Michael Einterz, who represents the Respond-
ent in labor matters, told Long and Zimmer that the lawsuit
against the Union and Long would result in a $3 million judg-
ment and that the two union organizers would end up working
for Dilling. Zimmer stated that while he and the Respondent’s
attorney had joked in the past, he considered these statements
serious.
On February 16, 1999, the Indiana Court of Appeals held
that Dilling Mechanical could not recover on any of the legal
theories forwarded in its State lawsuit. The court stated that
when “trash bags are placed in an unlocked dumpster on the
curtilage and readily accessible to others, that trash has been
abandoned” and therefore under State law Dilling Mechanical
had no property rights in the trash and could not establish crim-
inal trespass, conversion, or any of its other legal claims. The
decision of the Indiana Court of Appeals reversed a prior trial
court decision granting summary judgment to Dilling Mechani-
cal, and remanded the case with instructions that the trial judge
dismiss one of the claims and enter summary judgment in favor

2 The Respondent apparently discovered that Long had removed the
trash when the hotel complained to local law enforcement officials that
the Respondent’s trash had been placed in a hotel dumpster.
of Long and the Union on all others. Dilling Mechanical peti-
tioned for rehearing and filed a motion for reconsideration, but
these were denied by the court of appeals. The Company peti-
tioned to transfer the matter to the Indiana Supreme Court, but
on October 14, 1999, the Indiana Supreme Court denied the
petition. Thus, the Respondent’s lawsuit against Long and the
Union ended after nearly 4 years of litigation.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The Union filed an unfair labor practice charge on November
27, 1996, which alleged that the Respondent had violated Sec-
tion 8(a)(1) of the Act by “filing and continuing to prosecute a
legally and factually baseless lawsuit against [the Union] and
Paul Long” in “retaliation for Long’s organizing activity “ and
“previous unfair labor practices charges.” (GC Exh. 1(a).) The
charge also alleged that the Respondent violated Section 8(a)(1)
by taking Long’s deposition in connection with the lawsuit. Id.
The Union filed a related charge on July 15, 1997, which al-
leged that the Respondent engaged in coercive conduct in viola-
tion of Section 8(a)(1) by serving written discovery on the Un-
ion in the State lawsuit. (GC Exh. 1(c).)
V. ANALYSIS AND DISCUSSION
A. Motion to Dismiss
In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983),
the Supreme Court held that an employer’s State lawsuit vio-
lates the Act if (1) the lawsuit has resulted in a judgment ad-
verse to the plaintiff and (2) the lawsuit was filed in retaliation
for protected activity. See also BE & K Construction, 329
NLRB 717, 722 (1999); Braun Electric Co., 324 NLRB 1, 2
(1997). The Respondent moved to dismiss the complaint for
lack of jurisdiction, arguing that Long and the Union were not
its employees and therefore that their activities relating to the
removal of trash from the Respondent’s dumpster were not
protected activities under the Supreme Court’s decision in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and could not
give rise to a Bill Johnson’s violation. In the alternative, the
respondent argued that the Board lacked jurisdiction because
the Union filed its charge more than 6 months after the Re-
spondent initiated its lawsuit against Long and the Union, and
therefore the notice of charge was received beyond the filing
period under Section 10(b). For the reasons discussed below, I
reject both arguments.
In Lechmere, supra, the Court held that it was not an unfair
labor practice for the employer to bar nonemployee union or-
ganizers from trespassing on its property where, without such
access, the employer’s workers were accessible to the organiz-
ers. The National Labor Relations Board has recently had oc-
casion to consider the ramifications of Lechmere in a factual
context similar to the one present here. In BE & K Construc-
tion Co., supra, the General Counsel alleged that an employer
had engaged in an unfair labor practice by unlawfully filing and
maintaining a lawsuit against unions in retaliation for protected
activity. There, as here, the employer argued that since the
defendants in the State court action were “nonemployees,” the
Lechmere decision precluded finding that even a retaliatory
lawsuit was an unfair labor practice. The Board rejected that
argument, holding that “the Respondent’s suit [wa]s not im-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
mune from 8(a)(1) liability merely because it was filed against
the Unions, rather than against employees.” Id. at 720. The
Board acknowledged that, in Lechmere, the Court stated that
“[b]y its plain terms the [National Labor Relations Act] confers
rights only on employees, not on unions or their nonemployee
organizers,” Id. at 723 (quoting Lechmere, 502 U.S. at 532
(emphasis in original)). However, the Board pointed out that
other statements in Lechmere “negate[d] any suggestion that
the Court intended to hold that union conduct is never protected
by the Act,” Id. In Lechmere, the Court stated that “the em-
ployees’ ‘right of self organization depends in some measure on
[their] ability . . . to learn the advantages of self-organization
from others,’” and that Section 7 of the Act could therefore
“restrict the employer’s right to exclude nonemployee union
organizers from its property.” 502 U.S. at 532 (quoting, NLRB
v. Babcock & Wilcox, Co., 351 U.S. 105, 113 (1956)). The
Court explicitly recognized that Section 7 protections did apply
to nonemployees, although they did so “derivatively.” Id. at
533.
As the Board noted in BE & K, it would be “perverse,” and
contrary to the purposes of the Act to interpret Section 7 to
mean that “conduct that is protected when engaged in by two or
more employees together would lose its protection if engaged
in by the employees’ union on their behalf.” 329 NLRB 717 at
723. In Geske & Sons, Inc., 317 NLRB 28 (1995), enfd. 103
F.3d 1366 (7th Cir. 1997), cert. denied 522 U.S. 808 (1997),
and again in Petrochem Insulation, Inc., 330 NLRB 47, 49
(1999),3 the Board rejected the argument that an employer’s
lawsuit challenging union conduct could not be unlawful under
the Act.
The Board’s view that a lawsuit filed against a union or non-
employee union organizer may constitute an unfair labor prac-
tice is also supported by post-Lechmere Court of Appeals deci-
sions enforcing Board orders in such cases. See Diamond Wal-
nut Growers, 312 NLRB 61 (1993), enfd. 53 F.3d 1085 (9th
Cir. 1995); Geske & Sons, Inc., 317 NLRB 28 (1995), enfd. 103
F.3d 1366 (7th Cir. 1997), cert. denied 522 U.S. 808 (1997);
see also Dahl Fish Co., 279 NLRB 1084, 1110–1111 (1986),
enfd. mem. 813 F.2d 1254 (D.C. Cir. 1987). In Diamond Wal-
nut Growers, the Ninth Circuit explicitly rejected the argument
that Section 7 did not confer rights on unions. The court
agreed, moreover, with the Board’s argument that an employer,
by suing a union, could interfere with the employees’ exercise
of their Section 7 rights. 53 F.3d at 1089–1090.
The Respondent does not distinguish, or even mention, any
of the clear, post-Lechmere, Board and Court of Appeals prece-

3 BE & K and Petrochem, impose no requirement that a union have
acted on behalf of even a single one of the respondent’s employees. As
the Board explained in BE & K, “the employees whose concerted activ-
ities may be protected under Section 7 are defined by Section 2(3) to
include any employees, not just those of any particular employer.” 329
NLRB 717, 724 (emphasis in original); see also O’Neil’s Markets v.
United Food, 95 F.3d 733 (8th Cir. 1996). Moreover, at the time Long
removed the trash bags, he had secured approximately 12 signed union
authorization cards from the Respondent’s employees. Thus, he was
acting not only on behalf of union members who worked for other
employers, but also, to a degree, on behalf of the Respondent’s own
employees.
dent discussed above. Rather, the Respondent argues that
since, as in Lechmere, the nonemployee activity in this case
involved a trespass, which is not a protected activity, the law-
suit opposing that activity cannot give rise to an unfair labor
practice violation. This argument is, at best, disingenuous. To
begin with, as the Respondent surely knows, the Indiana Court
of Appeals rejected the claim that Long’s actions were a tres-
pass,4 and the Indiana State Supreme Court upheld that decision
by denying review. (GC Exh. 3.) The Indiana Court Appeals
stated that the dumpster was “open to public access” and “un-
locked” and that the Respondent’s property rights had not been
abrogated by Long’s taking of the trash, since that trash had
been abandoned. (GC Exh. 3.) (Indiana Court of Appeals Deci-
sion at 10–12). Lechmere “did not change the rule that a prop-
erty right can be asserted only by the party who possesses that
right.” Great American, 322 NLRB 17 (1996); see also Loeh-
mann’s Plaza, 316 NLRB 109, 113 fn. 12 (1995). Thus, the
Respondent’s argument that Long’s or the Union’s activities
were not protected because they were ?trespassory? is without
merit.
Even if one assumes, for purposes of discussion, that the Re-
spondent is correct in its assertion that, under Lechmere, Long
was not engaging in protected activity when he took bags of
trash from Dilling’s dumpster, that would not preclude a find-
ing that the State lawsuit was an unfair labor practice. Under
the relevant precedent, an unfair labor practice is shown if the
State proceedings result in a judgment adverse to the plaintiff,
and the lawsuit was filed in retaliation for protected activities.
Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 749
(1983). There is no requirement that the activity that was the
putative subject of Dilling’s State lawsuit be the protected ac-
tivity, as long as it is shown that the motive of the lawsuit was
retaliation for activities that were protected. BE & K, 329
NLRB 717. The evidence here shows that the Respondent’s
State Court lawsuit was directed at union activities far beyond
Long’s supposed trespass. The Respondent’s complaint in

4 In its posthearing brief, the Respondent contends that the Indiana
Court of Appeals’ Opinion “never addresses the Trial Court’s determi-
nation of trespass” and asserts that Dilling Mechanical, therefore,
somehow prevailed on its trespass claim. Respondent’s posthearing br.
at 4. This contention is utterly lacking in merit. The Court of Appeals
opinion states that Dilling “cannot recover on any of the legal theories
it advances,” and directs the trial court to “dismiss Dilling’s corrupt
business influence claim, and . . . enter summary judgment on Dilling’s
other claims in favor of the Defendant.” GC Exh. 3 (Indiana Court of
Appeals decision at 11) (emphasis added). The opinion finds that the
dumpster was “open to public access,” Id. at 2, “readily accessible to
others,” and specifically holds that Long did not commit “criminal
trespass.” Id. at 11. The meaning of this is clear. The State trial judge
had no trouble understanding it, and issued an order stating that the
“claim for corrupt business influence is dismissed and summary judg-
ment on all of Plaintiff’s remaining claims is . . . granted in favor of the
Defendants.” GC Exh. 3 (Order of Julian L. Ridlen, J.) (emphasis
added). In a petition for review by the Indiana Supreme Court the
Respondent argued that the Court of Appeals had erroneously failed to
rule on the claim of trespass, GC Exh. 3 (Respondent’s Petition to the
Indiana Supreme Court, at pp. 3–4), but the Supreme Court denied the
petition. The Respondent’s contention that this all adds up to a victory
on its claim of trespass is fantasy.
DILLING MECHANICAL CONTRACTORS 551
State Court made allegations—including union racketeering
and efforts to “put[ ] Dilling out of business”—that the com-
plaint putatively links to the alleged trespass, but which go well
beyond that narrow issue. (GC Exh. 3 (complaint).) Moreover,
when it took Long’s deposition as part of the State Court litiga-
tion, the Respondent sought information about a wide range of
matters regarding the Union, including the identities and duties
of union officials, the typical duration of organizing efforts, the
filing of unfair labor practice charges, and the possibility of
“salting” and “job targeting” by the Union. C.P. Exh. 1 at 4–
25, 42, 50. The Respondent also served interrogatories asking
the Union and Long to identify each and every union member
working for the Respondent, and a request for production that
directed the Union to provide, inter alia, “[e]ach and every
document which identifies the strategy and strategies presently
and/or previously being used to organize Dilling.” (CP Exh. 3.)
Based on the evidence, I conclude that the purpose of the law-
suit went well beyond Long’s alleged “trespass” to encompass
aspects of the Union’s organizing activities that were clearly
protected.
Furthermore, the Lechmere decision left undisturbed the
Court’s holding, in NLRB v. Babcock & Wilcox Co., 351 U.S.
105 (1956), that an employer acts unlawfully when it discrimi-
natorily denies unions access to its property while permitting
others access for similar activities. BE & K, 329 NLRB 717 at
723; New Jersey Bell Telephone Co., 308 NLRB 277, 281
(1992); Davis Supermarkets, Inc., 306 NLRB 426 (1992). In
Lechmere, the Court found that the employer could lawfully
exclude union organizers from its property in part because that
employer had an established policy prohibiting all non-
employees (including, the Court noted, girl scouts and the sal-
vation army) from soliciting and distributing literature on its
premises. Lechmere, 502 U.S. at 530 fn. 1. The instant case is
distinguishable from Lechmere not only because the union
activity that the Respondent attacked in its State lawsuit was
not ?trespassory?, but also because there is evidence that the
Respondent enforced its supposed policy against trespass in a
discriminatory manner to deny only union organizers access to
its property. The Respondent in this case introduced no evi-
dence of a generally applicable policy prohibiting non-
employees from engaging in the types of allegedly trespassory?
activities that Long and the Union pursued and which were the
subject of the State lawsuit. As noted by the Indiana Court of
Appeals, the Respondent’s dumpster was “open to public ac-
cess” (GC Exh. 3) (Indiana Court of Appeals opinion at p. 2),
and the Respondent did not even take minimal steps to retain
control over the trash in that dumpster, id. at 11.
The Respondent’s president and owner, Richard Dilling,
conceded that the lawsuit against Long and the Union was the
only case where the company filed a trespass action against
someone for “stealing” garbage. However, on at least one other
occasion, the Respondent had attempted to thwart union organ-
izing efforts by invoking a “no trespassing” rule against a union
representative. On that occasion, the Respondent accused
Zimmer, a union organizer, of trespass after he attempted to
discuss the organizing effort with some of the Respondent’s
employees at a worksite. However, when the Respondent
called a police officer to the scene, the officer refused to treat
Zimmer’s activities as a trespass because the Respondent had
no posted policy against trespassing. Thus, the Respondent’s
argument based on Lechmere fails not only because the union
activity that the Respondent was attempting to prevent was not
trespassory?, but also because the Respondent’s opposition to
the union activity smacks of discrimination.
Equally unavailing is the Respondent’s argument that the
Board lacks jurisdiction because the Union’s unfair labor prac-
tices charge was filed more than 6 months after initiation of the
Respondent’s State lawsuit, and therefore is untimely under
Section 10(b). This argument raises two questions. First, must
the General Counsel’s complaint be dismissed in its entirety
since the State lawsuit was initiated more than 6 months prior
to the filing of the charge regarding it? And, second, if the
entire complaint is not barred, is a remedy confined to the peri-
od beginning 6 months prior to the filing of the charge? For the
reasons discussed below, I answer the former question in the
negative and the latter in the affirmative.5
Section 10(b) of the Act states that, “no complaint shall issue
based on an unfair labor practice occurring more than six
months prior to the filing of the charges.” However, a com-
plaint allegation is not barred by Section 10(b) when the chal-
lenged conduct involves a continuing practice that causes sepa-
rate and recurring injuries that persist into the charge-filing
period. Sevako v. Anchor Motor Freight, 792 F.2d 570 (6th
Cir. 1986); Taylor Warehouse Corp., 314 NLRB 516, 526
(1994). I conclude that the complaint allegation that mainte-
nance and prosecution of the State lawsuit was an unfair labor
practice, is an allegation of a continuing violation that persisted
into the charge filing period and that the General Counsel’s
complaint is not barred by Section 10(b). See Geske & Sons,
317 NLRB at 32 (although the unfair labor practice charge was
filed more than 6 months after the employer filed its allegedly
unlawful State lawsuit against the union, that charge would
“timely encompass” the employer’s conduct in maintaining and
prosecuting the lawsuit in question). The alleged injury was
not simply the result of the filing of the Respondent’s State
lawsuit, but also of the Respondent’s maintenance and contin-
ued prosecution of that lawsuit through discovery requests,
deposition, motions, appeal and other concomitants of litiga-
tion. (See GC Exh. 3.) The Respondent continued to press its
allegedly retaliatory lawsuit all the way to the Indiana Supreme
Court, and most of the 4 years of litigation took place after the
start of the charge-filing period.
My conclusion is consistent with Board precedent stating
that violations which are continuing in nature are not barred
even if the violation began before the charge-filing period. In
MBC Headwear, Inc., 315 NLRB 424, 428 (1994), the Board
affirmed the administrative law judge’s ruling that Section
10(b) did not bar an allegation that the employer failed to remit
union dues and fees to the union as required by the collective-

5 Even though Sec. 10(b) precludes a remedy for the period more
than 6 months before the filing of the charge, consideration of evidence
regarding that earlier period as “background” is proper where, as here,
occurrences within the 6-month period in and of themselves may con-
stitute unfair labor practices. Local 1424 v. NLRB, 362 U.S. 411, 416–
417 (1960).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
bargaining agreement, even though the union was aware of
such failure long before the charge was served on the employer.
In Teamsters Local 293, 311 NLRB 538, 539 (1993), the Board
held that “Section 10(b) does not preclude the Board from find-
ing that the provision [in a collective-bargaining agreement] is
unlawful more than 6 months after the execution of the contract
because of the continuing nature of the violation.” Similarly, in
Auto Workers Local 148 (McDonnell-Douglas), 296 NLRB
970, 977 (1989), the administrative law judge concluded that
Section 10(b) did not bar a complaint alleging that a provision
in a union constitution was unlawful, even though that provi-
sion was adopted 39 years earlier, since the maintenance of that
provision was itself a continuing violation. The Board affirmed
the administrative law judge’s conclusion that maintenance of
the provision was an unfair labor practice.
The Board has declined to apply the continuing violation
theory in the narrow context of cases involving clear and total
contract repudiation and has found that charges filed more than
6 months after such repudiation are untimely. In A&L Under-
ground, 302 NLRB 467, 468–469 (1991), the Board stated that
applying the continuing violation theory in the context of clear
and total contract repudiation would be contrary to the goal of
stabilizing existing bargaining relationships (since it would
leave the status of the agreement open for a longer period of
time), and would not serve the interests of the adjudication
process since it would allow the necessary evidence to become
stale.
The reasoning of A&L Underground is inapplicable here.
First, the filing of the State complaint did not constitute clear
notice of a violation. Under applicable Board precedent, the
question of whether the State lawsuit is an unfair labor practice
is tied to the merits of that lawsuit, and to the State court sys-
tem’s final disposition of that action.6 At a minimum, some
period of discovery in the State lawsuit will generally be neces-
sary before the defendant can reasonably be expected to deter-
mine whether an unfair labor practice has occurred. “While the
victims of an unfair labor practice should be encouraged to file
a charge with the NLRB as soon as possible, individuals should
not be forced to file anticipatory or premature charges.” Es-
mark v. NLRB, 887 F.2d 739, 746 (7th Cir. 1989); see also
NLRB v. Public Service Electric & Gas Co., 157 F.3d 222, 228
(3d Cir. 1998). In the instant case, the Union’s first unfair labor
practice charge regarding the Respondent’s State lawsuit was
served on December 3, 1996, well before a final disposition
adverse to the Respondent in State court on October 14, 1999,
and within 6 months of when the parties filed their dispositive
motions. Under these circumstances, I conclude that the Union
did not unreasonably delay filing. Furthermore, concern about
evidence becoming stale is minimal in the instant case since
much of the evidence relevant to the charge was necessarily
preserved as part of the record of the State court action. In-
deed, it is hard to imagine any meaningful prejudice to the Re-
spondent from the timing of the charge. Lastly, since this case

6 A State lawsuit that has a reasonable basis, even if it is retaliatory,
cannot be found to be an unfair labor practice until the State court rules
that the action lacks merit. See Iron Workers (Southwestern Materials),
328 NLRB 934, 943 (1999).
does not involve a unionized employer, the timing of the charge
will have no effect on the stability of bargaining relationships.
For these reasons, I conclude that it would be improvident to
extend the reasoning of A&L Underground to the facts of this
case.
The limitations period under Section 10(b) is an affirmative
defense and the Respondent has the burden of showing that the
charge was untimely under Section 10(b). NLRB v. Public
Service Electric & Gas Co., 157 F.3d 222, 228 (3d Cir. 1998).
For the reasons discussed above, I find that the Respondent has
not met that burden, and therefore I reject the timeliness de-
fense. I conclude that the Respondent’s motion to dismiss
should be denied.
Although I find that the complaint is not untimely, I do limit
the remedy to the period beginning on June 3, 1996, which is 6
months prior to service of the first charge by the Union alleging
that the State lawsuit was an unfair labor practice.7 The Board
has limited a remedy in continuing violation cases to acts oc-
curring during the period beginning 6 months before the filing
of the charge. See, e.g., Iron Workers, above at 934; MBC
Headwear, Inc., 315 NLRB 424, 428 (1994). I conclude that
this case does not present facts warranting deviation from that
practice.
B. Lack of Merit and Retaliatory Motive
In order to establish that a lawsuit filed by an employer
against a union is an unfair labor practice the evidence must
show: (1) that the suit lacked merit and (2) that it was filed in
retaliation for protected activity. BE & K, 329 NLRB at 722.
In this case, the Indiana Court of Appeals held that the Re-
spondent could not recover under any of its legal theories, and
remanded the case to the trial judge with instructions to dismiss
or grant summary judgment for the defendants on all claims.
The Indiana Supreme Court declined review. Under the appli-
cable standard, this establishes that the Respondent’s State
court lawsuit lacked merit and that the first prong of the viola-
tion standard is met. NLRB v. Operating Engineers Local 520,
15 F.3d 677 (7th Cir. 1994); BE & K, above at 719; Braun
Electric Co., 324 NLRB 1, 2 (1997); Phoenix Newspapers, Inc.,
294 NLRB 47, 49 (1989). Indeed, the Indiana Court of Ap-
peals determined that not one of the Respondent’s claims was
even strong enough to get to a jury. Thus to characterize the
State lawsuit as “lacking in merit” is, if anything, perhaps too
charitable.
The Respondent argues that its lawsuit against Long and the
Union did not lack merit because even though the action was
decided unfavorably to it in the Court of Appeals, the trial court
initially granted summary judgment in the Respondent’s favor.
Essentially, the Respondent appears to be arguing that its law-
suit, while ultimately unsuccessful, had a reasonable basis and
therefore does not meet the first prong of the test for a viola-

7 On December 3, 1996, the Respondent was served with notice of
charge Case 25–CA–25094, which alleged that the employer violated
Sec. 8(a)(1) of the Act by filing and continuing to prosecute its State
lawsuit, and by taking Long’s deposition. GC Exh. 1. On July 15,
1997, the Union filed a charge alleging that the Respondent had violat-
ed the Act by serving written discovery in the State lawsuit. GC Exh.
1.
DILLING MECHANICAL CONTRACTORS 553
tion. This argument is not persuasive. First, Board decisions
make clear that it is the outcome of the employer’s lawsuit that
determines the merits of that suit. Here, the Court of Appeals
determined that every one of the employer’s causes of action
should be rejected on dispositive motion. This establishes that
the State court action lacked merit. See BE & K, above at 719;
Braun Electric, 324 NLRB at 2; Phoenix Newspapers, Inc., 294
NLRB at 49. The fact that the Indiana Court of Appeals had to
correct a mistake made by the trial judge does not alter this
conclusion.
Even if one were to assume that the employer’s State lawsuit
had a reasonable basis, the Respondent’s argument fails under
the applicable legal standards. In Bill Johnson’s Restaurants,
Inc. v. NLRB, 461 U.S. 731, 749 (1983), the Supreme Court
stated that while a showing that an employer’s lawsuit lacked a
reasonable basis is necessary before the Board can properly
issue an order enjoining that lawsuit, once the lawsuit is over it
is proper to find a violation if the litigation results in a judg-
ment adverse to the employer and the evidence establishes that
the suit was filed with retaliatory intent. As the Board has not-
ed, a violation exists even if the employer had a “reasonable
basis” for the suit, as long as the suit was unsuccessful and was
brought to retaliate for union activities. BE & K, above at 721.
The employer’s argument to the contrary at first has some sur-
face appeal since it might seem unfair to find an employer
guilty of a violation for a lawsuit that it brought unsuccessfully,
but innocently. In this regard, it is important to view the first
prong of the test for a violation in the context of the second
prong. Under the two-prong test, even a lawsuit that lacks mer-
it will not give rise to a violation unless the employer filed it in
retaliation for union activity.
Since the Indiana Court of Appeals decision establishes that
the State lawsuit lacked merit, I turn to the question of whether
the Respondent had a retaliatory motive. Whether the lawsuit
was retaliatory is a question of fact. Operating Engineers Lo-
cal 520, 15 F.3d 677. In determining whether a suit had retalia-
tory motive it is appropriate to weigh such factors as timing,
threats, demeanor, credibility, and past antiunion acts. Control
Services, Inc., 315 NLRB 431, 455–456 (1994). Based on the-
se factors, I conclude that the Respondent maintained and pros-
ecuted its lawsuit with a retaliatory motive.
Richard Dilling, the Respondent’s founder and President,
denied that the lawsuit was retaliatory, and testified that he
simply asked his attorney what to do next once he had discov-
ered that Long had stolen his trash. I did not find Dilling a
credible witness. His testimony was self-serving, and his de-
meanor was defensive and evasive. In addition, the legal ac-
tions taken by Dilling through his attorney were not those of
one legitimately concerned with the taking of trash, but rather
those of one seeking to exploit a perceived misstep by a union
official to hobble an organizing effort. When the Respondent
discovered that Long had removed trash from its dumpster, it
did not approach Long to inform him of a policy against non-
employees taking trash or anything else from its property. Nor
did it make a pre-suit demand that Long agree to refrain from
such activity, or return any materials. Instead, Long heard
nothing of the matter until the employer filed its State lawsuit
alleging “criminal acts” that included racketeering, burglary,
and trespass. The State lawsuit did not seek an injunction pro-
hibiting trespasses by Long and the Union, but rather sought
compensatory, punitive, and treble damages, which its attorney
told Long and Zimmer would reach $3 million.
In Bill Johnson’s, 461 U.S. at 741, the Court recognized that
“the chilling effect of a State lawsuit on an employee’s willing-
ness to engage in protected activity is multiplied where the
complaint seeks damages in addition to injunctive relief. The
Board has held that an employer’s request for punitive damages
in a suit against a union can itself be evidence of retaliatory
motive. Diamond Walnut Growers, 312 NLRB 61; see also
Summitville Tiles, Inc., 300 NLRB 64, 66 (1990); H. W. Barss
Co., 296 NLRB 1286, 1287 (1989); Phoenix Newspapers, 294
NLRB at 49–50.
In addition, as noted above, during discovery the Respond-
ent’s attorney sought the identities of all union members work-
ing for the Respondent, as well as information about a wide
range of union activities. I find that the Respondent’s conduct
suggests that its lawsuit was designed to punish, and, to the
extent possible, intimidate and debilitate, Long and the Union,
not to address the supposed trespass or theft.
A prior Board decision involving the Respondent provides
evidence of antiunion animus on the part of the Respondent.
The decision, issued in September 1995, ruled that the Re-
spondent had committed 20 unfair labor practice violations in
opposing the campaign to organize its work force. Detroit
Mechanical Contractors, supra. As noted above, the United
States Court of Appeals for the Seventh Circuit Court enforced
the Board’s Order against the Respondent and commented on
the Respondent’s use of “heavy handed tactics” and intimida-
tion to squelch organizing efforts. (GC Exh. 6 at p. 2.) I may
rely on the findings and evidence in the earlier case against the
same employer as background in this case. Stark Electric, 327
NLRB 518, 518 fn. 1 (1999). Antiunion animus has been seen
by the Board as a factor in determining whether an employer’s
lawsuit is retaliatory. Summitville Tiles, Inc., 300 NLRB at 66.
The prior decision provides evidence of anti-union bias that
further supports the conclusion that the Respondent’s State
lawsuit was retaliatory.8
Moreover, as noted in the posthearing brief filed on behalf of
the Charging Party, the Respondent filed its State lawsuit on
November 13, 1995, only 2 months after the issuance of the
prior adverse decision by the Board, and on the heels of charges
filed against it by the Union on November 2 and August 22,
1995. The timing of the lawsuit, shortly after the adverse deci-
sion and charge filings provides another basis for inferring
retaliatory motive.
The conclusion that the Respondent’s lawsuit was retaliatory
is further buttressed by the threatening statements made by both

8 For this reason, the Respondent’s reliance on Rondout Electric,
Inc., 329 NLRB 957 (1999), is entirely misplaced. Respondent’s
Posthearing Br. at 5–6. In Rondout Electric, the Board found that the
employer’s filing of trespass-related criminal charges against two union
representatives was not retaliatory since the employer had demonstrated
a clear toleration of workplace organizing. The situation is starkly
different here, where the Respondent has zealously, and often unlawful-
ly, opposed the effort to organize its work force.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
the Respondent’s superintendent and its attorney. Stan Bee-
cher, the Respondent’s superintendent and agent, approached
Jeff Smith, an employee, after Smith was seen talking to a un-
ion organizer. Beecher told Smith that it would be a bad idea to
support the Union because the Respondent had filed a lawsuit
that would prevent the Union from functioning. I conclude that
Beecher was attempting to use the State lawsuit to chill union
activity, and that his statements are evidence that the lawsuit
was intended to punish and debilitate the Union.
Long and Zimmer testified to an exchange with the Re-
spondent’s attorney, Michael Einterz, in 1998 or 1999. Einterz,
who represented the Respondent in the State court lawsuit, and
also represents the Respondent in the instant proceeding, told
Long and Zimmer that the State lawsuit would result in a $3
million judgment and that Long and Zimmer would end up
working for Dick Dilling. In its posthearing brief, the Re-
spondent characterizes the discussion as “lighthearted.” Re-
spondent’s Posthearing Brief at p. 9. However, there was no
testimony or other evidence that this discussion was “light-
hearted.” The only evidence about its tenor was Zimmer’s
statement that he considered it “serious.” (Tr. 104.) I view the
statements as not only serious, but also threatening and intimi-
dating, especially with respect to Long who was a named de-
fendant in the lawsuit that the Respondent’s lawyer was assert-
ing would result in a multimillion dollar adverse judgment.9
I conclude that the statements of Beecher and Einterz are ev-
idence that the Respondent’s lawsuit was meant to punish and
debilitate Long and the Union. I am mindful that neither Bee-
cher nor Einterz appear to be in a position to decide whether the
Respondent would authorize or maintain a lawsuit. However,
Beecher was the Respondent’s superintendent and agent, and
Einterz was the Respondent’s representative for purposes of the
State court litigation. Although I do not give their statements
great weight, I believe that those statements provide some evi-
dence of the purposes of the lawsuit.
Taken together, the timing of the Respondent’s State court
lawsuit, the failure of the employer to attempt a voluntary reso-
lution or seek injunctive relief, the nature of the allegations in
the meritless State complaint, the request for compensatory,
punitive, and treble damages, the employer’s recent history of
numerous unlawful antiunion practices, the threatening state-
ments, and the other evidence and testimony, lead me to the
conclusion that the Respondent filed the lawsuit with a retalia-
tory motive. A finding that the Respondent violated Section

9 The Respondent asserts in its posthearing brief that this conversa-
tion took place in 1999, and, therefore, after the lawsuit had been re-
solved by the Indiana Court of Appeals, and at a time, presumably,
when the counsel’s statements could not have been seen as intimidat-
ing. However, the testimony was that the conversation took place in
1998 or 1999. Tr. 93–94. Even if the conversation occurred in 1999,
that would not establish that the decision of the Indiana Court of Ap-
peals was already known to the parties to the conversation since that
decision was not issued until February 16, 1999. Moreover, the Re-
spondent does not even assert that the conversation took place after its
request for review by the Indiana Supreme Court was denied on Octo-
ber 14, 1999. Thus, it appears that judgment against Long and the
Union was still a possibility at the time that counsel made his com-
ments to Long and Zimmer.
8(a)(1) is proper under the standards announced in Bill John-
son’s and its progeny.
CONCLUSION OF LAW
For the reasons discussed above, I find that the Respondent’s
lawsuit against Long and the Union lacked merit, and that the
Respondent maintained and prosecuted its suit out of a desire to
retaliate against Long and the Union for engaging in protected
activity. I therefore find that the suit violated Section 8(a)(1) of
the Act. I further find that the complaint is not barred by Sec-
tion 10(b) and that this matter is properly before the Board.
THE REMEDY
I will recommend that the Respondent be ordered to cease
and desist and take certain affirmative action designed to effec-
tuate the policies of the Act. In particular, I will recommend
that the Respondent be ordered to reimburse Long and the Un-
ion for all legal and other expenses including attorney’s fees,
incurred in defending against the Respondent’s State lawsuit
during the period commencing on July 3, 1996 (6 months prior
to the date that the employer received notice of charge Case
25–CA–025094), including any and all appeals therefrom. I
also recommend that the Respondent be required to pay the
Union interest as computed in New Horizons, 283 NLRB 1173
(1987), and Teamsters Local 776 (Rite Aid Corp.), 305 NLRB
832, 835–836 fn. 10 (1991), enfd. 973 F.2d 230 (3d Cir. 1992),
cert. denied 507 U.S. 959 (1993).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Dilling Mechanical Contractors, Inc., Lo-
gansport, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Filing and prosecuting lawsuits with causes of actions
against Long and/or the Union that are without legal merit and
are motivated by a desire to retaliate against activity protected
by Section 7 of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Reimburse the Union for all legal and other expenses in-
curred beginning June 3, 1996, in the defense of the Respond-
ent’s lawsuit (Cass County Circuit Court No. 09C01–9511–
CP–00090), including all appeals therefrom, in the manner set
forth in the remedy section.
(b) Within 14 days after service by the Region, post at its fa-
cilities in Logansport, Indiana, copies of the attached notice

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DILLING MECHANICAL CONTRACTORS 555
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent 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 Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the respondent at any time since June 3, 1996.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of responsible official
on a form provided by the Region attesting to the steps that the
Respondent had taken to comply.
The Respondent’s motion to dismiss is denied.
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.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT file and prosecute lawsuits with causes of ac-
tion against the Union or union officials that are without legal
merit and that are motivated to retaliate against activity protect-
ed by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL reimburse the Union for all legal and other expens-
es incurred in the defense of our lawsuit, with interest.

DILLING MECHANICAL CONTRACTORS, INC.
Michael T. Beck, Esq., for the General Counsel.
Ronald J. Hein Jr. and Jeremy C. Moritz, Esq. (Franczek Sulli-
van P.C.), of Chicago, Illinois, for the Respondent.
William R. Groth, Esq. (Fillenwarth, Dennerline, Groth &
Towe), of Indianapolis, Indiana, for the Charging Party.

11 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 Na-
tional Labor Relations Board” shall read “posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case is before
me on remand from the Board. On May 12, 2000, I issued my
decision finding that Dilling Mechanical Contractors, Inc. (the
Respondent) had violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by filing, maintaining, and prosecuting
a meritless and retaliatory State court lawsuit against union
organizer Paul Long, and the Indiana State Pipe Trades Associ-
ation, United Association of Plumbers and Pipefitters, AFL–
CIO, and Plumbers and Steamfitters Local Union No. 166,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada (the Union), and by propounding discovery in the law-
suit that sought the names of employees who had joined the
Union. Long had removed a number of trash bags from the
Respondent’s dumpster in hopes of finding information that
would help him contact the Respondent’s employees. In its
lawsuit, filed in Indiana State court, the Respondent alleged that
the removal of this trash constituted “criminal acts,” including
racketeering, trespass, burglary and receipt of stolen property.
The Respondent did not seek injunctive relief or attempt a vol-
untary resolution, but rather prayed for compensatory, punitive,
and treble damages, which it told Long would come to $3 mil-
lion. The Indiana Court of Appeals rejected all of the Respond-
ent’s legal theories, stating that when “trash bags are placed in
an unlocked dumpster on the curtilege and readily accessible to
others, that trash has been abandoned.” I concluded that the
Respondent’s unsuccessful State court lawsuit had an unlawful
purpose based, inter alia, on the fact that the Respondent had
already been found to have initiated an unlawful antiunion
campaign that included terminations, constructive discharges,
physical intimidation, verbal abuse, strict surveillance, and
other acts designed to interfere with union and protected con-
certed activity. See Dilling Mechanical Contractors, 318
NLRB 1140 (1995), enfd. 107 F.3d 521 (7th Cir. 1997), cert.
denied 522 U.S. 862 (1997). Moreover, the Respondent had
never raised the issue of trespass except in response to the ef-
forts of union organizers, and did not lock the dumpster, place
the dumpster in an area where it was not readily accessible to
others, guard the dumpster, shred sensitive documents placed in
the dumpster, or otherwise take steps to protect the trash from
removal. I also found that the manner in which the Respondent
conducted the litigation showed that it was “not . . . legitimately
concerned with the taking of trash, but rather . . . [sought] to
exploit a perceived misstep by a union official to hobble an
organizing effort.” The record showed that the Respondent’s
lawsuit “was designed to punish, and to the extent possible,
intimidate and debilitate Long and the Union, not to address the
supposed trespass or theft.”
The Respondent filed exceptions to my decision. While the
matter was pending before the Board, the Supreme Court issued
its decision in BE & K Construction Co. v. NLRB, 536 U.S. 516
(2002), which invalidated the Board standard under which “all
reasonably based but unsuccessful suits filed [by an employer
against a union] with a retaliatory purpose” may be found un-
lawful. On September 26, 2002, the Board remanded this mat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
ter to me “for further consideration in light of BE & K Con-
struction, including, if necessary, reopening the record to obtain
further evidence.” All parties informed me that they did not
believe further evidentiary proceedings were necessary, and I
agreed. The General Counsel, the Respondent, and the Charg-
ing Party Union filed supplemental briefs on the subject pre-
sented by the remand order. After reviewing the Board’s re-
mand order, the briefs of the parties, and the record as a whole,
I have determined that application of the Supreme Court’s deci-
sion in BE & K Construction, does not affect my finding that
the Respondent’s State court lawsuit violated the Act.
Discussion
1. The BE & K Construction case
In BE & K Construction Co., the Board found that the em-
ployer had violated Section 8(a)(1) by filing a meritless Federal
lawsuit against various unions in retaliation for protected activi-
ty. 329 NLRB 717 (1999). The lawsuit filed by BE & K lacked
merit, the Board concluded, because all the claims were either
decided against the plaintiffs or were voluntarily dismissed
with prejudice by them. Id. at 722–723. The Board stated that
the lawsuit had been retaliatory because it was “directed at
protected conduct,” and “necessarily tended to discourage simi-
lar protected activity.” Id. at 726. The Board also found evi-
dence of retaliatory motive in the fact that the plaintiffs had
named certain unions as defendants in the federal lawsuit who
were not involved in the complained of activities. Id. at 727.
According to the Board, it was also proper to take into account
the fact that the suit was unmeritorious in determining whether
it was filed for retaliatory reasons. Id. at 721. The Board stated
that under the Supreme Court’s decision in Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983), “even if an employer
had a ‘reasonable basis’ for bringing the suit, the suit may still
be found unlawful if the employer withdraws the suit or loses
on the merits and the Board finds that it brought the suit out of
a desire to retaliate against protected activity.” 329 NLRB at
721. The Board stated that it “may not enjoin the prosecution of
a pending State court suit alleged to have been filed with a
retaliatory motive unless the suit lacks a reasonable basis in fact
and law,” but that “suits that have been litigated to completion”
are “[o]n an entirely different footing” because “the plaintiff
has had his day in court and the State’s interest in providing a
forum for its citizens has been vindicated.” Id.
The United States Court of Appeals for the Sixth Circuit af-
firmed the Board’s decision, 246 F.3d 619 (6th Cir. 2001), but
the Supreme Court granted certiorari and reversed. The Su-
preme Court noted that the First Amendment protects the “right
of the people . . . to petition the Government for redress of
grievances,” and that this right has been interpreted to apply to
the use of courts to advocate causes. 536 U.S at 524. The
Court stated, however, that the protection of the First Amend-
ment did not “extend to ‘illegal and reprehensible practice[s]
which may corrupt the . . . judicial proces[s]”’ Id. (citation
omitted). The Court stated that the decision in Bill Johnson’s
left open the question of “whether the Board may declare that
an unsuccessful retaliatory lawsuit violates the NLRA even if
reasonably based.” Id. at 527–528 (emphasis added). If so, the
Court stated, it would mean that the Board could impose bur-
dens—including a fee award, reputational harm, and the legal
consequences of a declaration of illegality—on reasonably
based, but unsuccessful, petitioning. Id. at 528.
The Court considered the fact that the Board confines its
penalties to unsuccessful suits brought with a retaliatory mo-
tive, but concluded that this limitation, at least as it had been
applied by the Board, did not alleviate the First Amendment
concerns. The Court stated that the Board defined a retaliatory
suit as one brought with a motive to interfere with the exercise
of Section 7 rights. Id. at 532. The Court concluded that given
that definition, the retaliatory motive requirement “fails to ex-
clude a substantial amount of petitioning that is objectively and
subjectively genuine.” Id. at 534. In the case before it, the Court
said, there was evidence of antiunion animus, but such animus
does not mean that petitioning is not genuine “[a]s long as a
plaintiff’s purpose is to stop conduct he reasonably believes is
illegal.” Id. at 534 (emphasis in original).
The “final question” identified by the Court was “whether, in
light of the important goals of the NLRA, the Board may never-
theless burden an unsuccessful but reasonably based suit when
it concludes that the suit was brought with a retaliatory pur-
pose.” Id. at 534. The Court declined to answer that “difficult
constitutional question.” Instead, the Court indicated that to the
extent the Board’s standard interpreting Section 8(a)(1) of the
NLRA raised the question, it was not an interpretation that was
not compelled by the statute. Rather than decide the difficult
question, the Court chose to invalidate the Board interpretation
that raised it. Id. at 534–536. The Court did not define a new
standard,1 and explicitly left open the possibility that a reasona-
bly based, but unsuccessful, lawsuit could violate the NLRA if
the suit “would not have been filed but for a motive to impose
the costs of the litigation process, regardless of the outcome, in
retaliation for NLRA protected activity.” The Court reversed
the decision of the Sixth Circuit and remanded the matter for
further proceedings consistent with its opinion. The Sixth Cir-

1 The Court stated that it had previously held that for a suit to violate
antitrust law the suit must be a “sham,” meaning that it must be objec-
tively baseless such that no reasonable litigant could realistically expect
success on the merits, and that the litigant’s subjective motivation must
conceal an attempt to interfere directly with the business relationships
of a competitor through the use of the governmental process as an
anticompetitive weapon. Id. at 534 (discussing Professional Real Estate
Investors v. Columbia Pictures Industries, 508 U.S. 49 (1993). The
Court did not state that this standard was applicable to cases that, like
the one before it, allege that a suit violates the NLRA, but did note that
the latter type of case “raises the same underlying issue of when litiga-
tion may be found to violate federal law.” 536 U.S. at 524. The Court
noted that the Board had identified differences between antitrust litiga-
tion and litigation under the NLRA—in particular, that NLRA litigation
cannot be launched solely by private action but only when the Board’s
general counsel issues a complaint, that the Board has no authority to
order punitive remedies, and that prehearing discovery is limited in
Board proceedings. The Court stated, however, that those factors “[a]t
most . . . demonstrate that the threat of an antitrust suit may pose a
greater burden on petitioning than the threat of an NLRA adjudication,”
and “do[ ] not mean the burdens posed by the NLRA raise no First
Amendment concerns.” Id. at 528 (emphasis in original).
DILLING MECHANICAL CONTRACTORS 557
cuit then remanded the matter to the Board, which has yet to
rule.
Two concurring opinions were filed, which offer differing
interpretations of the majority opinion. Justice Scalia, in a con-
curring opinion joined by Justice Thomas, stated that while the
Court had avoided defining a new standard to replace the Board
standard being invalidated, “the implication of our decision
today is that . . . we will construe the [NLRA] in the same way
we have already construed the Sherman [Antitrust] Act to pro-
hibit only lawsuits that are both objectively and subjectively
intended to abuse process.” Justice Scalia stated that he disa-
greed with the view that the “differences between the NLRA
and the Sherman [Antitrust] Act . . . suggest . . . that a com-
plainant enjoys greater First Amendment rights to file a lawsuit
in the face of the latter than the former.” Justice Scalia argued
that the more significant difference was that in the antitrust
context “the entity making the factual determination whether
the objectively reasonable suit was brought with an unlawful
motive would have been an Article III court,” whereas in the
NLRA context an executive agency was being given the power
to punish a reasonably based suit filed in an article III court.
536 U.S. at 536–538. Therefore, he suggested, the standard for
finding that a retaliatory antiunion lawsuit violates the Act
should be at least as stringent as that for finding that an anti-
competitive lawsuit violates the Sherman Act.
Justice Breyer filed an opinion concurring in part, and con-
curring in the judgment, in which Justice Stevens, Justice Sout-
er, and Justice Ginsburg joined. Justice Breyer read the Court’s
opinion to mean only that the Board could not declare an em-
ployer’s lawsuit to be a violation of the Act “in the circum-
stances present here, which is to say, in the kind of case in
which the Board rests its finding of ‘retaliatory motive’ almost
exclusively upon the simple fact that the employer filed a rea-
sonably based but unsuccessful lawsuit and the employer did
not like the union.” 536 U.S. at 538 (emphasis in original). The
Court left open the possibility, Justice Breyer said, that a viola-
tion could be established where “the evidence of ‘retaliation’ or
antiunion motive might be stronger or different, showing, for
example, an employer, indifferent to outcome, who intends the
reasonably based but unsuccessful lawsuit simply to impose
litigation costs on the union,” or showing that the lawsuit was
brought “as part of a broader course of conduct aimed at harm-
ing the unions and interfering with employees’ exercise of their
rights under [the NLRA].” Id. Justice Breyer rejected the view
that the implication of the Court’s decision was that the stand-
ard for determining whether a lawsuit violates antitrust law
should be applied to determine the legality of a lawsuit alleged
to violate the Act. He stated that “antitrust and labor law differ
significantly in respect to their consequences, administration,
scope, history, and purposes.” Id. at 539. In particular, he ob-
served that the threat of antitrust litigation is more likely than
NLRA litigation to discourage legitimate lawsuits because: the
remedies under antitrust law are more burdensome than those
that would be available under the Act; antitrust litigation typi-
cally involves far higher court costs than NLRA litigation; and,
NLRA litigation cannot be launched solely by private action
but only when the Board’s General Counsel issues a complaint.
Justice Breyer also pointed out that suppression of antiunion
lawsuits is far more central to the purposes of the NLRA, than
the suppression of anticompetitively motivated lawsuits is to
antitrust law. Id. at 541–543.
I adopt the interpretation of the BE & K majority opinion
suggested by Justice Breyer. In BE & K, the Supreme Court
invalidated the Board’s standard for finding unsuccessful, but
reasonably based, retaliatory State lawsuits unlawful, but de-
clined to articulate a new standard to guide consideration of
future cases. The implication of what the Court does say is
susceptible to more than one reasonable construction, as
demonstrated by the reasonable, but contrary, constructions
given it by Justice Scalia (joined by Justice Thomas) and Jus-
tice Breyer (joined by Justice Stevens, Justice Souter, and Jus-
tice Ginsburg), neither of which construction is explicitly em-
braced or rejected by a majority of the Court. For its part, the
Board has yet to articulate a new standard in light of the Su-
preme Court’s ruling. It is well established that administrative
law judges are bound to follow Board precedent unless and
until reversed by the Board or the Supreme Court. Butterworth
Mortuary, 270 NLRB 1014, 1020 (1984); Iowa Beef Packers,
Inc., 144 NLRB 615, 616–617 (1963). In the circumstances of
the instant case, I believe this rule warrants my choosing, from
among reasonable interpretations of a Supreme Court decision,
that interpretation which leaves intact a greater measure of the
Board’s precedent. See Longshoremen Local 799, 257 NLRB
1075 (1981) (Board rejects administrative law judge’s interpre-
tation of Supreme Court decisions that was unnecessarily ex-
pansive, and adopts narrower interpretation that is more con-
sistent with Board precedent), enfd. mem. 702 F.2d 1205 (D.C.
Cir. 1983). Here, the view expressed by Justice Breyer is more
in keeping with Board precedent since it only invalidates the
Board’s standard for what constitutes a sufficient retaliatory
motive to warrant finding a violation, whereas Justice Scalia’s
view would invalidate both the Board’s standard for what is
sufficiently retaliatory and also its standard for what is suffi-
ciently lacking in merit.
Justice Breyer’s view is also, I think, the better one. First, it
preserves one of the most attractive attributes of the Board’s
standard. Under the Board’s standard, the decision about
whether the concluded State court lawsuit lacked merit is based
entirely on the determination reached in the State court regard-
ing that lawsuit. Thus the Board is not forced to immerse itself
in State law in order to determine whether a lawsuit was objec-
tively baseless. Justice Scalia’s view would necessarily draw
the Board into that unfamiliar territory in order to make its own
determination about whether an unsuccessful State court law-
suit was objectively baseless under State law. Second, I agree
with Justice Breyer’s views about the differences between
NLRA litigation and antitrust litigation, and, in particular, am
persuaded that the lower litigation costs, milder remedies, and
agency screening process in the NLRA context mean that the
threat of NLRA litigation imposes substantially less of a burden
on genuine petitioning than does the threat of antitrust litigation
attacking lawsuits filed for anticompetitive purposes.
I am troubled by Justice Scalia’s view that a violation of the
NLRA could not be shown unless the retaliatory lawsuit was
baseless both objectively and subjectively since that standard
would appear to protect all retaliatory lawsuits for which a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
reasonable basis in fact and law could be articulated, even if the
employer was not motivated by the complained of conduct, but
solely by a desire to use the judicial process to retaliate against
a union for engaging in protected activities. That would be
contrary to the view stated in the majority opinion that a lawsuit
is “genuine petitioning” when its purpose is “to stop conduct
[the plaintiff] reasonably believes is illegal.” 536 U.S. at 534.
Justice Scalia states that the differences between antitrust
law and labor law that are discussed by Justice Breyer are all
outweighed because in the NLRA context the Board (an agency
headed by an entity composed of members appointed by the
President with the advice and consent of the Senate, 29 U.S.C.
Section 153(a)) is the entity making the factual determination
whereas in Sherman Act litigation the factual determination is
made by an article III court. Justice Scalia does not, however,
explain why he believes the threat of factfinding by an entity
such as the Board represents so much greater a burden on peti-
tioning than does the threat of factfinding by an article III court,
and it is not self-evident to me. Rather, as I indicate above, I
agree with Justice Breyer that the lower litigation costs, more
limited remedies, and agency screening, in the case of litigation
before the Board mean that the threat of such litigation is less
of a burden. To the extent that Justice Scalia does explain his
concern with the Board’s factual determinations he observes
that executive agencies do not share the independence of article
III courts and he questions “whether an executive agency can be
given the power to punish a reasonably based suit filed in an
Article III court.” 536 U.S. at 538 (emphasis in original). As
stated, Justice Scalia’s concern is addressed to suits that, like
BE & K’s, are filed in an article III court, and would not neces-
sarily be raised by a lawsuit that, like Dilling Mechanical’s,
was filed in State court, and might be viewed differently under
the supremacy clause in article VI of the Constitution and con-
siderations of federalism. At any rate, it is worth noting that the
factual determinations in NLRA cases alleging violations of
Section 8(a)(1) are in the main made by Federal administrative
law judges who are guaranteed a substantial level of independ-
ence and conduct a wide range of due-process adjudications,
often involving remedies significantly more onerous than any
likely to be imposed for retaliatory lawsuits found unlawful
under the NLRA. The Supreme Court itself has recognized this
independence, stating that “the process of agency adjudication
is currently structured so as to assure that the [administrative
law judge] exercises his independent judgment on the evidence
before him, free from pressures by the parties or other officials
within the agency” and “insulated from political influence.”
Federal Maritime Commission v. South Carolina State Ports
Authority, 535 U.S. 743, 745 (2002), quoting Butz v. Econo-
mou, 438 U.S. 478, 513 (1978).
For the reasons discussed above, I interpret the Supreme
Court’s decision in BE & K as invalidating the Board’s stand-
ard only to the extent suggested by Justice Breyer—i.e., to the
extent that the standard permitted a violation of the NLRA to be
found based on a “retaliatory motive” that rests “almost exclu-
sively upon the simple fact that the employer filed a reasonably
based but unsuccessful lawsuit and the employer did not like
the union.” 536 U.S. at 538 (concurring opinion of Justice
Breyer).2 A violation may still be found where the lawsuit is
unsuccessful and the evidence of retaliation is stronger; for
example, where the employer’s purpose is not “to stop conduct
he reasonably believes is illegal,” Id. at 534, but rather to mis-
use the judicial process itself to punish a union for protected
activities, or where the employer’s lawsuit is “part of a broader
course of conduct aimed at harming the unions and interfering
with employees’ exercise of their rights under Section 7(a) of
the NLRA.” Id. at 538 (concurring opinion of Justice Breyer).
2. Dilling Mechanical’s State court lawsuit
Considering the instant case in light of BE & K, I conclude
that the record still warrants finding that the Respondent’s un-
successful State court lawsuit violated Section 8(a)(1). The
evidence of retaliation and antiunion motive in this case is both
“stronger and different” than that present in BE & K. As dis-
cussed in my original decision, the record here did not merely
show that the Respondent filed an unsuccessful lawsuit and did
not like the union. Rather it showed that the purpose of the
Respondent’s State court lawsuit was “to punish, and to the
extent possible, intimidate and debilitate Long and the Union,
not to address the supposed trespass and theft.” Given this pur-
pose, the Respondent’s lawsuit did not fall within the bounds of
what the Supreme Court called “genuine petitioning” designed
“to stop conduct [it] reasonably believe [d] [wa]s illegal,” but
rather was an attempt to misuse the State court as a weapon for
punishing, harming, and interfering with Long’s and the Un-
ion’s organizing efforts. Nothing in the briefs of the parties
leads me to reconsider the factual findings that establish a vio-
lation of Section 8(a)(1) under BE & K. As is discussed fully in
my original decision,3 my factual finding regarding the Re-
spondent’s motivation is supported by: the suspicious timing of
the State court lawsuit;4 the failure of the Respondent to seek a

2 In its supplemental brief, the General Counsel takes a different
view of the BE & K decision, stating that that the Supreme Court indi-
cated that in determining whether a retaliatory lawsuit violates the
NLRA, “the Board could no longer rely on the fact that the lawsuit was
ultimately meritless, but must determine whether the lawsuit, regardless
of it outcome on the merits, was reasonably based.” GC Br. at 6. The
General Counsel states the record did not show that the suit was with-
out a reasonable basis, and therefore asks that I find that the Respond-
ent did not violate the NLRA. Id. at 7–8. The General Counsel also
opines that “[t]he evidence reveals that Respondent was motivated, at
least in part, by a desire to protect its legitimate privacy rights.” Id. at 8.
The General Counsel does not identify what credible evidence “re-
veals” this legitimate motivation and I reject the General Counsel’s
assessment. For the reasons discussed in my original decision, includ-
ing my assessment of the demeanor and testimony of the witnesses, and
in particular that of Richard Dilling, I conclude that a desire to stop the
conduct that was the putative target of the state court lawsuit played no
significant part in Respondent’s filing and maintenance of that lawsuit,
which, instead, was motivated by a desire “to punish, and to the extent
possible, intimidate and debilitate Long and the Union.”
3 Rather than repeat portions of my original decision, I hereby incor-
porate, by reference, into this supplemental decision the factual find-
ings and related discussions from my decision of May 12, 2000.
4 The Respondent filed its State lawsuit on November 13, 1995, only
2 months after the issuance of the prior adverse decision by the Board
and on the heels of additional unfair labor practices charges filed
against it by the Union on November 2 and August 22, 1995.
DILLING MECHANICAL CONTRACTORS 559
voluntary resolution or injunctive relief; the nature of the alle-
gations in the unsuccessful State court action; the Respondent’s
request for compensatory, punitive, and treble damages to rem-
edy the removal of trash; the fact that the Respondent had only
ever raised the trespass issue in response to union organizing;
the failure of the Respondent to take steps to protect its trash
from others; the unlawful attempt by the Respondent to use the
State court lawsuit to discover the names of union supporters
on its work force; the Respondent’s recent history of repeated
unlawful antiunion practices; the intimidating statements that
the Respondent’s agents made about the lawsuit to union offi-
cials and employees; and the other evidence and testimony.
The record also leads me to conclude that the State court
lawsuit was, to use Justice Breyer’s words, “part of a broader
course of conduct aimed at harming the unions and interfering
with employees’ exercise of their rights under Section 7(a) of
the NLRA.” The Respondent filed its State court lawsuit only 2
months after the Board issued a decision finding that the Re-
spondent had committed 20 unfair labor practices, including a
number of hallmark violations, against two unions. That deci-
sion found that the Respondent’s unlawful acts during the peri-
od from December 1992 to August 1994 included: terminating,
constructively discharging, and disciplining employees who
engaged in union or protected concerted activity; unlawfully
refusing to permit former strikers to return to work after those
individuals made an unconditional offer to return to work;
physically intimidating, verbally abusing, and strictly surveil-
ling employees because of their union activities; threatening
employees with discharge if they engaged in union and protect-
ed concerted activities; enforcing rules more strictly or creating
new rules because of the union activities; interrogating employ-
ees about their union membership and activities; and instructing
employees to stop their union and protected concerted activi-
ties. The Respondent, to put it bluntly, is not an employer that
merely “didn’t like” unions, but one that repeatedly demon-
strated a willingness to vent its dislike through unlawful and
unusually aggressive antiunion actions. In upholding the
Board’s decision, the United State Court of Appeals for the
Seventh Circuit commented on the Company’s use of “heavy-
handed tactics” to oppose the organizing campaign and to “in-
timidate and berate employees who supported” the Electrical
Workers union.5 Dilling Mechanical Contractors v. NLRB, 107
F.3d 521, 523 (7th Cir. 1997), cert. denied 522 U.S. 862 (1997).
The record here leaves no real doubt that the Respondent’s
unsuccessful State court lawsuit was a continuation of its heavy
handed, antiunion, tactics, and part of its “broader course of
conduct aimed at harming the unions and interfering with em-
ployees’ exercise of their rights under Section 7(a) of the
NLRA.” The Respondent’s lawsuit amounted to a corruption of
the judicial process, not genuine petitioning.
[Recommended Order omitted from publication.]

5 The prior case involved the Electrical Workers union, as well as the
Union involved in this case.