LP Enteprises

National Labor Relations Board - Board Decisions

Jul 28, 1994

314 N.L.R.B. 580 (N.L.R.B. 1994)

580
314 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We deny the Respondent’s motion to strike the Charging Party’s
cross-exceptions and portions of the Charging Party’s brief in sup-
port thereof. Contrary to the Respondent’s contention, the Charging
Party’s cross-exceptions were timely filed pursuant to Sec. 102.46(e)
of the Board’s Rules and Regulations.
2 The Respondent asserts in its exceptions that the judge made cer-
tain remarks at trial which establish that the judge ‘‘prejudged’’ this
case. We have carefully reviewed the judge’s remarks and find that
they fail to establish any bias by the judge in his disposition of this
case.
3 Contrary to the Respondent’s exceptions, the judge correctly
found full-time paid union employee Donald Burke to be a statutory
employee under Sec. 2(3) of the Act. Sunland Construction Co., 309
NLRB 1224 (1992).
LP Enterprises and International Brotherhood of
Electrical Workers, Local 532. Case 27–CA–
11496
July 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On September 24, 1992, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a brief in response to
the Respondent’s exceptions. The Charging Party filed
cross-exceptions and a brief in support thereof and in
opposition to the Respondent’s exceptions. The Re-
spondent filed a brief in reply to the Charging Party’s
brief and a brief in reply to the General Counsel’s
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions,1 cross-exceptions,
and briefs and has decided to affirm the judge’s rul-
ings,2 findings, and conclusions and to adopt the rec-
ommended Order, except that the attached notice is
substituted for that of the administrative law judge.
On June 13, 1990, the Union’s assistant business
manager, Donald Burke, filed an unfair labor practice
charge alleging that the Respondent failed to hire him
and three other union applicants for electrician posi-
tions at the Respondent’s smelter project due to their
union affiliation. Following an investigation, the
Board’s Regional Office found the charge to be with-
out merit and offered Burke the choice of withdrawing
the charge or having it dismissed. Burke withdrew the
charge.
The Respondent thereafter filed a lawsuit in Mon-
tana state court against the Union and its Assistant
Business Manager Burke,3 alleging that under Montana
state law the Union and Burke had engaged in mali-
cious prosecution of the Respondent by filing an unfair
labor practice charge against the Respondent which the
Union knew was false. The judge found that the Re-
spondent violated Section 8(a)(1) and (4) of the Act by
initiating and maintaining the state court lawsuit
against the Union and Burke. We agree with the
judge’s finding for the reasons stated in his decision
and for the reasons set forth below.
It is well established that the Board may not enjoin
the prosecution of a state court lawsuit as an unfair
labor practice unless the General Counsel establishes
that the lawsuit lacks a reasonable basis in fact or law
and that the lawsuit was filed with a retaliatory motive.
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731,
748–749 (1983).
The judge found that the Respondent’s state court
malicious prosecution action lacked a reasonable basis.
The judge explained that Board law holds that the fil-
ing of an unfair labor practice charge is conduct pro-
tected by the National Labor Relations Act unless the
charge was undertaken in bad faith. See Summitville
Tiles, 300 NLRB 64, 65 fn. 5 (1990). The judge ac-
cordingly reasoned that, in order to establish a reason-
able basis for the Respondent’s state court malicious
prosecution lawsuit, it was necessary to show that
Burke filed the charge on behalf of the Union in bad
faith. The judge reviewed the Respondent’s evidence
in support of its state court lawsuit and found that the
evidence failed to establish that the charge was filed
in bad faith. Accordingly, the judge concluded that the
state court lawsuit lacked a reasonable basis.
The Respondent argues in its exceptions that the
judge, in determining whether the state court lawsuit
had a reasonable basis, should have reviewed the evi-
dence in support of its state court lawsuit solely under
Montana state law of malicious prosecution and should
not have required the Respondent to establish bad
faith. We find that the judge properly concluded that
the Respondent’s state court malicious prosecution
claim is not governed entirely by Montana state law.
Rather, because the Respondent’s state court lawsuit is
targeted at the filing of an unfair labor practice charge
with the Board, Federal labor law superimposes the re-
quirement of bad faith. See Linn v. Plant Guard Work-
ers, 383 U.S. 53, 64–65 (1966). In other words, in
order for the filing of a charge to lose the protection
of the Act and be subject to a malicious prosecution
action, the Federal standard requires a showing that the
party filing the charge acted maliciously, i.e., it filed
an unfair labor practice charge with knowledge that the
charge allegations were false or with reckless disregard
of the truth.
We have carefully reviewed the evidence submitted
by the General Counsel and the Respondent regarding
the circumstances surrounding the filing of the unfair
labor practice charge by Burke on behalf of the Union.
We agree with the judge’s finding based on his review
of the record evidence that Burke reasonably believed
581LP ENTERPRISES
4 The judge cited, inter alia, the following factors: (1) at no time
did the Respondent tell Burke that the Respondent did not have the
contract to hire electricians at the smelter project; (2) the Respond-
ent’s newspaper advertisement did not specify what construction
trades were being recruited; (3) the Respondent did not refuse the
employment application of Burke and the three other union appli-
cants even though they made clear on their application that they
were seeking employment as electricians; (4) the Respondent re-
ferred Burke to its superintendent at the smelter, LaFournaise, who
took a second employment application from Burke when Burke vis-
ited the smelter site; and (5) LaFournaise telephoned Burke to ask
him if he was satisfied that the Respondent had his employment ap-
plication and was servicing him properly.
5 Contrary to the judge, we do not require the Respondent to meet
a burden of demonstrating that the charge was filed in bad faith.
Rather, the burden was on the General Counsel to show that the
state court lawsuit lacked a reasonable basis and was filed for a re-
taliatory motive. In this case, the General Counsel has met its burden
of proving that the lawsuit lacked a reasonable basis by showing that
the Union did not file the unfair labor practice charge in bad faith.
6 For example, of 33,833 unfair labor practice charges filed with
the Board in fiscal year 1990, 30.3 percent were withdrawn before
complaint and 34.8 percent were administratively dismissed. 55
NLRB Ann. Rep. 6 (1990).
7 The Respondent points to the following evidence: (1) that Re-
spondent’s president, Post, told Burke that she seldom had calls for
electricians; (2) that Respondent’s superintendent, LaFournaise, told
Burke that the Respondent did not have the contract to hire elec-
tricians at the smelter project; and (3) that Respondent’s office man-
ager, Staker, told Burke in their third telephone conversation that
Respondent was not doing the electrical work at the smelter project.
In considering the Respondent’s evidence, we have not relied on the
judge’s finding that there was a close working relationship between
LaFournaise and Richard Lamm at the smelter project.
8 NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959).
9 We find it unnecessary to pass on the judge’s finding that the
Respondent’s Montana state court lawsuit is not preempted, because
the General Counsel did not allege or litigate the issue of preemp-
tion.
that he was not hired by the Respondent as an elec-
trician due to his union affiliation,4 and we accordingly
find that Burke filed the charge in good faith. Having
shown that the charge was filed in good faith, the Gen-
eral Counsel carried his burden of establishing that the
state court lawsuit lacked a reasonable basis.
We further agree with the judge’s conclusion that
the evidence submitted by the Respondent failed to
raise a genuine issue of material fact.5 The Respondent
contends in its exceptions that even assuming the
judge’s conclusions are supportable on the record evi-
dence, those conclusions are flawed because the judge
erroneously precluded the Respondent from submitting
evidence concerning charges filed by the Union in
eight or nine other Board cases that, the Respondent
urges, would support its claim that the Union’s unfair
labor practice charge in this case was filed in bad
faith. We find no merit in this contention. We have re-
viewed the offer of proof that the Respondent made in
the light most favorable to the Respondent, and we
find that it fails to raise a genuine factual issue that
the charge in question here was filed in bad faith. The
Respondent’s proffer—simply that other charges filed
by Burke have been withdrawn or dismissed—does not
suggest that those charges were filed by Burke in bad
faith. Charges before the Board are commonly with-
drawn or dismissed, and such disposition is not tanta-
mount to a finding that the charges have been filed in
bad faith.6 Because the Respondent did not offer to
prove that Burke knew that there was no basis for
those charges at the time he filed them (or that he
acted with reckless disregard of the truth), the ex-
cluded evidence is not probative as to whether the
charge in issue here was filed in bad faith.
We have likewise fully reviewed evidence which the
Respondent argues in its exceptions was not consid-
ered by the judge and which, it argues, establishes that
the instant charge was filed in bad faith and accord-
ingly that its state court lawsuit had a reasonable
basis.7 Viewing the Respondent’s evidence as a whole
and in the light most favorable to the Respondent, as
did the judge, we reject the Respondent’s argument.
This evidence falls far short of raising a genuine fac-
tual issue as to whether the Union filed its unfair labor
practice charge with knowledge that the charge allega-
tions were false or with reckless disregard of the truth.
Contrary to the Respondent’s contention, it was not in-
cumbent on the Union at the time it filed its charge
to ‘‘have at least probable cause based upon a prudent
investigation.’’ It is well established that the purpose
of a charge is ‘‘to set in motion the machinery of an
inquiry. The responsibility of making that inquiry . . .
is one that Congress has imposed upon the Board, not
the charging party.’’8 Thus, the Union could properly
call upon the Board to investigate the Union’s good-
faith belief that the Respondent discriminated against
union electricians in hiring at the smelter project; it
was not required to accept the Respondent’s denials as
true.
We accordingly agree with the judge that the Re-
spondent’s state court lawsuit lacked a reasonable
basis. We further agree with the judge, for the reasons
stated by him, that the lawsuit was filed with a retalia-
tory motive. Accordingly, the judge correctly con-
cluded under the test in Bill Johnson’s, supra, that the
Respondent unlawfully initiated and maintained the
state court lawsuit against the Union and Burke.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, LP Enterprises, Billings,
Montana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order, except that
the attached notice is substituted for that of the admin-
istrative law judge.
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1990 unless otherwise indicated.
2 On July 31, 1991, the Region by letter informed the Union’s at-
torney that it would not include in the complaint an 8(a)(4) allega-
tion charging that the state court lawsuit against the Union violated
Sec. 8(a)(4) of the Act. This left intact the 8(a)(1) allegations based
on the Respondent’s lawsuit against Burke and the Union, and an
8(a)(4) violation based on Respondent’s lawsuit against Burke (G.C.
Exh. 1(c)). Apparently, the Union did not appeal this decision.
3 Throughout the transcript, where applicable, change my title from
‘‘Hearing Officer’’ to ‘‘Administrative Law Judge.’’
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT initiate or maintain a baseless lawsuit
against the Union or its officials in retaliation for their
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL withdraw our lawsuit for malicious pros-
ecution (90–1068) filed in the Yellowstone County
Court in Montana against Donald Burke and the Union
and reimburse them for all legal expenses incurred in
the defense of the lawsuit.
LP ENTERPRISES
Michael T. Pennington, Esq. and Jeffrey L. Horowitz, Esq.,
for the General Counsel.
Jerome L. Froimson, Esq., of Phoenix, Arizona, for the Re-
spondent.
Walter C. Brauer III, Esq., of Denver, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Billings, Montana, on May 27
and 28, 1992,1 pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board for
Region 27 on August 15, 1991, and which is based on a
charge filed by International Brotherhood of Electrical Work-
ers, Local 532 (the Union) on October 31. The complaint al-
leges that LP Enterprises (Respondent) has engaged in cer-
tain violations of Section 8(a)(1) and (4)2 of the National
Labor Relations Act (the Act).
Principal Issues
(1) Is the state court lawsuit filed by the Respondent
against the Union and one of its officials preempted by the
Act?
(2) Does the state court lawsuit in issue have a reasonable
basis in fact or law?
(3) Was the state court lawsuit filed for retaliatory rea-
sons?
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel, Charging Party Union, and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a Montana corporation (Tr.
308) engaged in the business of labor contracting providing
labor, supervision, and payroll services to other businesses
and having an office located in Billings, Montana. Respond-
ent further admits that in the course and conduct of its busi-
ness operations, it has annually provided more than $50,000
in services to customers located outside the State of Mon-
tana. Accordingly, it admits, and I find, that it is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Brother-
hood of Electrical Workers, Local 532 is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts3
1.
On June 13, Ron Burke, assistant business manager of the
Union, acting on behalf of the Union, filed an unfair labor
practice charge against Respondent, alleging as the basis:
In response to a newspaper ad for construction work-
ers, Dave Michaels, Ron Burke, Ron Pering, and Dale
Loucks applied for a job. L. P. Enterprises under con-
tract with Stillwater Mining Company is the sole hiring
agency for the project. Numerous applicants have been
referred out as the project nears completion.
Not one of these individuals listed above has been
contacted for the project due to their union affiliation.
[G.C. Exh. 4.]
Subsequent to the processing and investigation of the charge
(G.C. Exh. 4), it was found to be without merit. Given a
choice of having his charge dismissed or withdrawing same,
Burke elected the latter course.
On October 2, Linda Post, president and owner of Re-
spondent, acting on behalf of Respondent, filed a lawsuit in
the 13th Judicial District Court of Yellowstone County, Mon-
tana, against the Union, and Ron Burke, alleging that Re-
spondent incurred certain financial damages as a result of the
Union’s malicious prosecution of an unfair labor practice
which the Union knew at the time it was filed was false and
lacking a basis in law.
583LP ENTERPRISES
As noted above, upon receipt of service of the state court
complaint and summons, the Union filed a second unfair
labor practice charge based on the filing of the state court
lawsuit. This time, after investigation, the charge was found
to contain merit. A complaint subsequently issued and the in-
stant hearing held. Both Burke and Post testified for their re-
spective sides. Other witnesses also testified and will be
noted below. Meanwhile, the state court lawsuit has been
stayed pending resolution of the instant case.
These then are the basic facts. To expand on the basic
facts as appropriate, I turn back to the record.
2.
Since 1986 when it came into existence, Respondent has
had a continuing contract with the Stillwater Mine located
near Columbia, Montana, for the recruitment and furnishing
of certain construction trades employees on a temporary, as-
needed basis. Respondent provides the same services for
other clients located in Montana, Arizona, and elsewhere in
the Western United States. The individuals furnished to any
of Respondent’s clients are considered to be Respondent’s
employees; as such, they are trained in appropriate safety
measures, covered by Respondent’s workmen’s compensation
and supervised and paid by Respondent’s foremen and man-
agers. The jobs last for varying amounts of time and in some
cases require employee relocation. According to Post, she
does not normally hire Montana electricians for jobs in that
State. However, she has furnished electricians on a job in Ar-
izona where a majority of the electricians desired to work on
a union job. Accordingly, all electricians furnished by Re-
spondent for the Arizona job have joined the IBEW local
there. Post and that local apparently have maintained a good
working relationship for some time.
In early 1990, an outside consultant named Thomas re-
tained by Stillwater notified Post that a smelter project was
to be built at the mine, and that her continuing contract with
Stillwater was to be supplemented and amended for Re-
spondent to supply the necessary construction tradespersons
who were to be employed on the project.
Accordingly, Post caused a newspaper ad to be placed in
the local newspaper. It reads as follows:
CONSTRUCTION WORKERS LP Enterprises will be
taking applications Monday Feb. 12, 10am–4pm at Co-
lumbus MT, Super 8, room 104 for 2–3 months fast-
track construction project in Columbus MT. Apply in
person only. [G.C. Exh. 2.]
Upon arrival at the motel named in the ad, Post found ap-
proximately 150 persons seeking employment. Addressing 20
applicants at a time in a conference room, Post distributed
applications and pencils and stated that she was not yet cer-
tain what trades would be involved in the smelter project, but
anyone not selected for that job would have his or her appli-
cation kept on file for future jobs.
Among those submitting an application on that day was
Burke, at all times material to this case, a full-time, paid
union organizer and assistant business agent, who was seek-
ing employment for the purpose of organizing nonunion elec-
tricians. From the same IBEW local were three other unem-
ployed applicants who, while not paid union organizers, were
strong union supporters and potential union organizers if they
had been hired.
When Burke submitted his application (G.C. Exh. 3) to
Post, there is some conflict as to what was said. According
to Burke, Post looked over the application, thanked him and
promised a call ‘‘this week.’’ According to Post, Burke
asked about electrician jobs on the project, but Post allegedly
replied that she seldom had calls for electricians, except for
a project in Arizona where he’d have to join the union to
work.
Of the three other persons who submitted applications for
electricians work in response to the newspaper ad recited
above, only one, Dale Loucks, testified. According to
Loucks, he called the Union after reading the ad to try and
get information on Respondent, but no one there knew any
background on Respondent. Because Loucks was then unem-
ployed, he decided to apply at the Motel 8. Upon arrival, he
filled out his application, clearly indicating his qualification
as a journeymen electrician and his desire to secure electrical
work (G.C. Exh. 7). Two other journeymen electricians,
Pering and Michaels rode to the Motel 8 with Burke. Like
Burke, they filled out and submitted to Post applications for
employment as electricians.
After Post received the applications at the Motel 8, she re-
turned to her office where she paper screened the applica-
tions. Of the l50 submitted, she ultimately discarded or
placed in a file drawer about 100 which were unacceptable
for the smelter job. Disqualifying reasons included poor work
records for Respondent in past jobs, lack of experience, or
skills, or geographically undesirable. Post gave the 50 re-
maining applications to Phil LaFournaise, Respondent’s on-
site supervisor and timekeeper at the Stillwater Mine. Not
currently employed by Respondent, LaFournaise testified as
a Respondent witness.
It is not clear whether Burke’s application or any of the
three other electricians were among those tendered by Post
to LaFournaise. The confusion is based on the fact that
LaFournaise knew from the beginning that Respondent was
not supplying or specifically recruiting electricians for the
smelter job. The reason was due to Stillwater’s decision to
subcontract the electrical work to Respondent’s witness,
Richard (Dick) Lamm, d/b/a Electric West. Post, on the other
hand, testified that she never concerned herself with whether
or not Respondent would provide electricians to the smelter
project. Furthermore, when Post gave her affidavit to the
Board in March 1991, she claimed not to recall when she
learned that Lamm was to be the electrical contractor at the
smelter (Tr. 346).
All agree that neither Burke nor the other three electricians
were interviewed or called for jobs at the smelter. They
were, however, all offered other jobs by representatives of
Respondent. More about this below.
Lamm and LaFournaise had a close working relationship
at the smelter, sharing a phone with the same phone number.
Each had office space in separate trailers furnished by Still-
water. Beginning his electrical work in February, and con-
tinuing for about 6 months, Lamm ultimately hired seven or
eight electricians. All or most were recruited and hired by
Lamm himself, who called various electrical suppliers re-
questing the names of suitable candidates for employment.
Lamm also placed an ad in a local paper and contacted the
state unemployment service for candidates. Pointedly, how-
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent introduced the phone records of Respondent’s busi-
ness for March and April to confirm Staker’s calls to Pering and Mi-
chaels (R. Exh. 2). In addition, their applications submitted to Post
at Motel 8 were admitted into evidence (C.P. Exhs. 1 (Michaels), 2
(Pering)).
ever, Lamm claimed never to have asked LaFournaise for
electrician referrals from its files (Tr. 236). This testimony
conflicts somewhat with that of LaFournaise who testified
that Lamm had asked LaFournaise to direct any electricians
who called to Lamm because he was seeking journeyman
electricians (Tr. 269).
The evidence of other jobs offered to the electricians was
provided in part by Respondent witness Betty Staker, Re-
spondent’s former employee between January and November
1991. Hired first as a secretary/receptionist, Staker was pro-
moted to office manager after Respondent relocated its office
from Bozeman to Billings, Montana, in April. According to
Staker and confirmed by Loucks, in late March, Staker called
Loucks on behalf of Respondent and offered Loucks a job
out of the area where Loucks then lived. Due to certain do-
mestic reasons involving a divorce, Loucks was then unable
to leave the area. Staker then asked Loucks if he knew of
any qualified electricians who might be interested in the job.
Loucks reported this job offer to Burke at the Union.
Staker also credibly testified that in March, she called both
Pering and Michaels to offer them jobs, other than at the
smelter.4 Staker recalled that both declined the offer, Pering
due to a traffic court restriction on where he could drive, and
Michaels due to the fact that he already had a job. Staker
even called Pering back to offer him an opportunity for relo-
cation to another area, but he declined.
Burke too had contact with Staker on several occasions,
prior to talking to Post. Both Burke and Staker agree that
Burke called several times in March and April, attempting to
reach Post, who was then out of town. There is some conflict
as to whether Burke specifically told Staker initially that he
was following up on his application for work at the smelter
as an electrician. Eventually, however, the two witnesses
agree that this was made clear to Staker who referred Burke
to LaFournaise on site for further information.
Eventually, Burke reached Post at her office, apparently in
May. Burke also went to the smelter project where he met
LaFournaise for the first time and Lamm whom he knew as
a nonunion electrical contractor who for some time Burke
had been attempting to persuade to sign an agreement with
the Union. Because the record is not definite as to whether
Burke went to the smelter first or talked to Post first, I will
assume the former. According to Burke, when he met
LaFournaise, he asked for Lamm for the purpose of making
his usual recruiting pitch and without knowing exactly what
Lamm was doing at the smelter. Then LaFournaise asked
Burke if he was a licensed electrician. When told Burke was,
LaFournaise said, ‘‘Dick wants to talk to you! He needs
electricians.’’
LaFournaise recalls the meeting differently. Burke walked
into his trailer one day and asked if Respondent was hiring
electricians. LaFournaise explained that another contractor
was hiring electricians. When Burke inquired about his appli-
cation, LaFournaise couldn’t recall if he had it on file or not.
So LaFournaise had Burke complete a second application for
Respondent to keep on file for future reference. Then
LaFournaise directed Burke to Lamm. Before he left, Burke
inquired about other jobs at the smelter and other wage
scales Respondent had between 20 to 40 employees on site
including laborers, welders, concrete carpenters, cement fin-
ishers, and masons. LaFournaise claimed that he gave Burke
wage scales on two classifications and discussed generally
wage scales for other jobs. Burke dismissed all of these as
‘‘too low’’ and said he was not interested.
Lamm recalled meeting Burke on the smelter job and
being asked how things were going. Lamm responded that he
was doing the electrical work on the project. Without indi-
cating that he was looking for a job as an electrician, Burke
told Lamm there was still time to think about going union
and the Union could be very helpful in supplying the nec-
essary manpower. This was a message Burke had conveyed
to Lamm many times before, and Lamm too, responded as
he had done in the past: he’d think about it.
Post recalled talking to Burke only one time, in May. By
this time, LaFournaise had told her that Burke was employed
by the Union, so she asked Burke if he didn’t already have
a full-time job. Burke said he did, but that he was seeking
another job. Post replied that she didn’t have any electrical
jobs at the smelter, but if he were serious, she would hire
him to do some electrical work for an addition to her home
she was building. Burke said he wasn’t interested.
A few days later, Burke and his boss Donald Herzog, busi-
ness manager for the Union and Respondent’s witness at
hearing, called the business offices for the Stillwater Mine to
ask if there were any jobs for electricians on the smelter
project. A person named Debbie (last name and title un-
known), told the two union officials that all hiring was being
done by Respondent.
Burke recalls first talking to Post a month or more before
May. Rather than a single call, Burke recalled several. He
agrees that at one point she offered him work at her home
which he declined. He also testified and Post did not dispute
that during his telephone conversation with Post on one or
more occasions, Post never said that Respondent didn’t have
the contract to furnish electricians to the smelter project.
Based on the fact that none of the four union electricians
were hired by Respondent and other facts as reflected above,
Burke filed the unfair labor practice charge on June 5 in
Case 27–CA–11353 (G.C. Exh. 4).
3.
After the above-referenced case was withdrawn by Burke
pursuant to the Region’s request, Post contacted the Union’s
International representative, Ken Olson, Herzog’s immediate
superior. In August, Olson, Herzog, and Post met in Post’s
office at Post’s request. Olson did not testify in this case, but
there is little dispute over the substance of the meeting. Post
stated the Union knew the charge had been false when filed
and that she had incurred financial expenses in defending
herself and Respondent. She demanded reimbursement.
Herzog said that filing of the charge with the Board was just
a tool we use. The Union refused to pay any reimbursement.
The state court suit followed and the instant complaint came
next.
585LP ENTERPRISES
5 I note that the General Counsel did not allege in the complaint
nor does he now argue in his brief that preemption applies to this
case. In Kimtruss Corp., 305 NLRB 710, 711 (1991), the Board
held, ‘‘It is settled that a charging party cannot enlarge upon or
change the General Counsel’s theory.’’ This rule does not apply here
since the issue is Board jurisdiction which can be raised by any
party at any time. Cf. Clark Concrete Construction Corp., 116
NLRB 321 fn. 3 (1956).
B. Analysis and Conclusions
1. The preemption issue
The Union contends, brief at 12–13, that the state court
suit filed by Respondent is preempted by the Act. If the
Union is correct, in its threshold argument, it is also correct
that the case of Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983) does not apply.5
In American Pacific Concrete Pipe Co., 292 NLRB 1261
(1989), the Board found that its jurisdiction to decide back-
pay claims preempted the Respondent’s suit pertaining to the
same subject matter. In support of its conclusion, the Board
noted, at 1261–1262, the decision of Building Trades Coun-
cil of San Diego v. Garmon, 359 U.S. 236, 244–245 (1959),
where the Court held:
When an activity is arguably subject to Sec. 7 or Sec.
8 of the Act, the States as well as the federal courts
must defer to the exclusive competence of the National
Labor Relations Board if the danger of state inter-
ference with national policy is to be averted.
The Board went on to note, at 1262, the basis for its conclu-
sion that the Bill Johnson’s Restaurants, case would not
apply, quoting the Court’s decision, 461 U.S. at 737 fn. 5:
It should be kept in mind that what is involved here
is an employer’s lawsuit that the federal law would not
bar except for its allegedly retaliatory motivation. We
are not dealing with a suit that is claimed to be beyond
the jurisdiction of the state courts because of federal-
law preemption, or a suit that has an objective that is
illegal under federal law. Petitioner concedes that the
Board may enjoin these latter types of suits. . . . Nor
could it be successfully argued otherwise, for we have
upheld Board orders enjoining unions from prosecuting
court suits for enforcement of fines that could not law-
fully be imposed under the Act . . . and this Court has
concluded that, at the Board’s request, a District Court
may enjoin enforcement of a state-court injunction
‘‘where [the Board’s] federal power pre-empts the
field.’’ NLRB v. Nash-Finch Co., 404 U.S. 138, 144
(1971).
The case of Bill Johnson’s Restaurants, supra, 461 U.S. at
741–742, itself deals in part with the preemption issue:
Moreover, in recognition of the States’ compelling
interest in the maintenance of domestic peace, the Court
has construed the Act as not preempting the States from
providing a civil remedy for conduct touching interests
‘‘deeply rooted in local feeling and responsibility.’’ San
Diego Building Trades Council v. Garmon, 359 U.S.
236, 244 (1959). It has therefore repeatedly been held
that an employer has the right to seek local judicial pro-
tection from tortuous conduct during a labor dispute.
[Citations omitted.]
In Linn v. Plant Guard Workers, supra, at 65, we
held that an employer can properly recover damages in
a tort action arising out of a labor dispute if it can
prove malice and actual injury. See also Farmer v. Car-
penters, supra, at 306. If the Board is allowed to enjoin
the prosecution of a well-grounded state lawsuit, it nec-
essarily follows that any state plaintiff subject to such
an injunction will be totally deprived of a remedy for
an actual injury, since the ‘‘Board can award no dam-
ages, impose no penalty, or give any other relief’’ to
the plaintiff. Linn, supra, at 63. Thus, to the extent the
Board asserts the right to declare the filing of a meri-
torious suit to be a violation of the Act, it runs head-
long into the basic rationale of Linn, Farmer, and other
cases in which we declined to infer a congressional in-
tent to ignore the substantial State interest ‘‘in pro-
tecting the health and well-being of its citizens.’’ Farm-
er, supra, at 302–303. See also Sears, Roebuck & Co.
v. Carpenters, supra, at 196; Linn, supra, at 61.
The filing of unfair labor practice charges with the Board
is generally a protected activity. Summitville Tiles, 300
NLRB 64, 65 (1990). However, where, as here, the conduct
at issue under state law (i.e., the alleged malicious filing of
an unfair labor practice charge) is arguably prohibited by the
Act, the Court has refined the Garmon preemption test:
The critical inquiry is not whether the State is en-
forcing a law relating specifically to labor relations or
one of general application but whether the controversy
presented to the state court is identical to . . . or dif-
ferent from . . . that which could have been, but was
not, presented to the Labor Board. For it is only in the
former situation that a state court’s exercise of jurisdic-
tion necessarily involves a risk of interference with the
unfair labor practice jurisdiction of the Board which the
arguably prohibited branch of the Garmon doctrine was
designed to avoid.
Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 197
(1978).
Thus I am instructed to look at the ‘‘controversy’’ pre-
sented by Respondent’s state court suit against the Union and
Burke and ask whether the Board could have adjudicated it
instead. The Board has no means of adjudicating the alleged
malicious prosecution issue contained within the state court
suit. I conclude therefore, there is no preemption of this case.
See Windfield v. Groen Division, 890 F.2d 764, 768–70 (5th
Cir. 1989); cf. Belknap v. Hale, 463 U.S. 491 (1983).
Although the instant case is not subject to the doctrine of
preemption, it is subject to the analysis of Bill Johnson’s
Restaurants, supra. I turn to that case to decide whether the
Board may enjoin Respondent from prosecuting ‘‘a baseless
lawsuit with the intent of retaliating against an employee for
the exercise of rights protected by Sec. 7 of the NLRA.’’ 461
U.S. at 744.
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 There is one important distinction between Summitville Tiles, and
the instant case. In the former case, the company’s lawsuit was no
longer pending in state court because the company had not prevailed.
300 NLRB 65.
2. Bill Johnson’s Restaurants doctrine applied to the
present case
a. Preliminary statements of law
Before proceeding to the central issue in this segment of
my decision, I recite some basic and familiar legal principles
which will serve as a framework for further analysis. First,
any person for any reason may file charges with the Board.
Stationary Engineers Local 39 (Kaiser Foundation Hos-
pitals), 268 NLRB 115 (1983). The purpose for this broad
rule is to permit the widest possible public access to the
Board’s processes. Next, I find that Burke, though he sought
employment with Respondent, in order to organize nonunion
electricians, and while he was himself a paid union orga-
nizer, was an ‘‘employee’’ under the Act. See Willmar Elec-
tric Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992);
Escada (USA) Inc., 304 NLRB 845 (1992), but see H. B.
Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989).
While access to the Board’s processes is an important pol-
icy consideration, no less important is access to the courts
for redress of alleged wrongs. In order to strike the proper
balance between the two policies which are in potential con-
flict in this case, I turn to the case of Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731, an authority recognized and
cited by all parties to this proceeding. In that case, the Court
held that in order to enjoin the prosecution of a state court
lawsuit, the General Counsel must establish a retaliatory mo-
tive and a lack of reasonable basis in fact or law. If the suit
has a reasonable basis, the Board must stay its unfair labor
practice proceeding until the state court suit has concluded.
See Machinists Lodge 91 (United Technologies), 298 NLRB
325, 326 (1990), enfd. 934 F.2d 1288 (2d Cir. 1991).
For guidance on the proper procedure in making a Bill
Johnson’s Restaurants analysis, I turn to the Board’s deci-
sion in Giant Food Stores, 295 NLRB 330, 333 (1989),
where the Board stated as follows:
The Court further indicated that when confronted with
an allegation that the filing and prosecution of a lawsuit
violates the Act, the Board first must determine whether
the suit has a ‘‘reasonable basis.’’ If it is found that the
suit lacks a reasonable basis, the Board may then pro-
ceed with the unfair labor practice proceeding and de-
termine whether the suit was filed with a retaliatory
motive. Should the Board determine that the suit has a
reasonable basis, however, then the Board may not en-
join the suit, but must stay its unfair labor practice pro-
ceeding until the state court suit has been concluded.
See also Johnson & Hardin Co., 305 NLRB 690 (1991).
b. Reasonable basis inquiry (in fact or law)
In Teamsters Local 776 v. Rite Aid, 973 F.2d 230 (3d Cir.
1992), the court enforced the Board’s decision involving a
Bill Johnson’s Restaurants, issue, and noted, at 235
[T]he Court [in Bill Johnson’s Restaurants,] also con-
cluded that it would reach a different result if the suit
was based on an insubstantial claim, i.e., one that did
not have a reasonable basis. The Court indicated that a
suit could not be viewed as not having a reasonable
basis if there was a dispute over a genuine issue of ma-
terial fact or, even if the facts were not disputed, there
was a realistic chance that the plaintiff’s legal theory
might be adopted by the state court. In that event, the
Board was obliged to allow the lawsuit to proceed. Ul-
timately, however, if the plaintiff did not prevail in the
lawsuit, the Board might conclude that the suit had
been filed in retaliation for the employees’ exercise of
Section 7 rights and the Board could therefore assess
after-the-fact relief of attorney’s fees and other ex-
penses against the plaintiff. The Court’s reluctance to
allow a prior restraint coupled with its recognition that
later relief might be appropriate is a natural borrowing
of principles regarding restrictions on freedom of
speech.
In Summitville Tiles, supra, a case in certain respects simi-
lar to that pending at bar,6 Respondent filed a state court
lawsuit alleging a count of malicious prosecution against Re-
spondent’s employees for filing of three unfair labor prac-
tices, two of which were later withdrawn. At footnoot 5 of
the decision, the Board stated ‘‘the Company has not satis-
fied its burden of showing that the filing of the unfair labor
practice charges and the employees’ [subsequent] state court
lawsuit were undertaken in bad faith and therefore did not
constitute activities protected by the Act.’’
Based on the above authorities, I note that the Board in-
structs me to focus on a probable cause, good-faith standard
for the filing of the initial unfair labor practice charge by
Burke. With a different emphasis the circuit court interprets
Bill Johnson’s Restaurants, to require a determination of
whether there is a dispute over a material fact based on a
review of the entire record. Taking either or both paths in
this case leads one to the same destination.
(1) Did Respondent meet its burden of showing that
Burke filed an unfair labor practice charge in bad faith?
To answer the question framed in (1) above, I turn to the
popular jargon of the day and ask, before Burke filed the ini-
tial unfair labor practice against Respondent, what did Burke
know and when did he know it. Based on the facts, recited
above and the record as a whole, I find the following.
At the time Post caused the want ad to be published, the
affected area of Montana had high unemployment in the con-
struction trades. The ad was nonspecific as to the trades
being recruited, so it was reasonable for Burke and at least
three other electricians to submit their applications. After re-
viewing the applications of the electricians at the Motel con-
ference room, Post did not refuse the applications from any
of the four. At no time did Post tell Burke or any other
union official that Respondent did not have the contract to
hire electricians at the Stillwater Mine. Neither did Staker or
LaFournaise tell Burke that Respondent did not have the
contract to hire electricians. In fact, the persons named above
all acted in a way reasonably calculated to convey to Burke
that Respondent was hiring electricians. For example, Staker
referred Burke to LaFournaise at the site. LaFournaise took
a second application from Burke. Then Post implied to Burke
587LP ENTERPRISES
7 It is also unnecessary to evaluate here the alleged impeaching in-
formation offered by the Union with respect to certain legal prob-
lems experienced in Federal court by Post and a prior company she
owned.
in May that his current full-time position (with the Union)
was a factor in his not being hired.
To understand Respondent’s strategy in taking applications
from the four electricians in this case, I look first to the testi-
mony of Respondent’s former supervisor, LaFournaise:
One of the things LP does is take applications from
anyone, only to provide a larger file for future ref-
erence. So whoever wishes to file an application, they
are never refused [Tr. 294].
Post also gave relevant testimony in this respect:
I do not generally do electrical . . . . I have never
done any electrical construction for the Stillwater Mine.
I wasn’t expecting to do any electrical work for the
Stillwater Mine. [But] I never know what they’re going
to call and ask me for. [Tr. 337.]
That Post was using a nonspecific want ad to solicit and
assemble a file of applications from out-of-work electricians
for future reference is a strategy which need not be judged
here. Burke, of course, was not privy to Respondent’s
inarticulated strategy. Based on the evidence, Burke reason-
ably believed that jobs for electricians were available at the
smelter plant and that he was not selected due to his union
affiliation. In this regard, I view LaFournaise’s phone call to
Burke at the union office as significant in judging Burke’s
good faith. According to LaFournaise, he called Burke to ask
him if he was satisfied that Respondent had his application
and that it was servicing him properly (Tr. 301). Burke rea-
sonably interpreted the call as part of Respondent’s tactics
not to hire union applicants.
In assessing the overall information available to Burke and
his superior, Herzog I view the two phone calls to the Still-
water Mine where they asked a partially unidentified person
about employment of electricians at the smelter as of some
value in the calculus. Herzog and Burke were referred to Re-
spondent.
In light of the above information available to Burke, the
question next becomes whether the offering of other jobs to
the four electricians renders the filing of the unfair labor
practice charge tainted by bad faith. I find the jobs offered
by Respondent’s representatives of little benefit to Respond-
ent. Jobs at Post’s home or outside the area were less desir-
able than jobs at the smelter project, only about 30 miles
from Billings. To be sure, Burke was aware of the tendered
jobs, but I find this knowledge insufficient to meet Respond-
ent’s burden to show bad faith by Burke.
Finally, I consider Burke’s visit to the site, where he spoke
to Lamm, Lamm told Burke he was doing the electrical
work. However, in light of Burke’s prior relationship with
Lamm, a nonunion electrical contractor, Burke was not re-
quired to take this statement at face value. Moreover, Lamm
never stated he had the contract to perform all the electrical
work on the smelter project. Even if Burke credited entirely
the statement made to him by Lamm, there was no way for
Burke to know the business relationship, if any, between Re-
spondent and Lamm’s company, Electric West. In light of all
other evidence available to Burke, I find it was part of his
job to give the Union the benefit of the doubt, file the
charges, and allow the Board to make its investigation.
In finding that Respondent has failed to carry its burden,
I note that the Board has consistently held that it is unneces-
sary to prove the existence of available jobs at the time when
unlawful discrimination on the basis of union membership
occurs. Cf. Utility & Industrial Construction Co., 214 NLRB
1053 (1974); NLRB v. Lummus & Industrial Co., 210 F.2d
377, 381 (5th Cir. 1954).
(2) Is there a dispute over a genuine issue of
material fact?
I find no such dispute exists. Even crediting all or most
evidence offered by Respondent, as I have done above, I find
that Burke had a sufficient basis to file the unfair labor prac-
tice. Certain conflicts in this record over exact contents of
or numbers of conversations between Burke and Post, for ex-
ample, are of no significance with respect to the central
issue.7
Based on my discussion above, I find that Respondent’s
state court lawsuit lacked a reasonable factual basis. In light
of this conclusion, I further find it is unnecessary to examine
Montana law to ascertain whether Respondent is legally pre-
cluded from proving malicious prosecution under the facts
presented to me.
c. Retaliatory motive
I find that Respondent filed its lawsuit with a retaliatory
motive. In support of this conclusion, I note the testimony
of Post on direct examination:
Q. [H]ow did you feel that this lawsuit that you had
me file would help you in that respect, in terms of your
reputation in terms of labor and so forth?
A. Well, I didn’t want them—I felt that they would
keep coming after me unless I said, ‘‘Look, you did
this, it was wrong, I want my attorneys fees, I want my
costs. It cost me a considerable amount of time just in
staff people, as well as attorneys’ fees.’’ [Tr. 334.]
When Post spoke to Burke in May, she had been told by
LaFournaise that Burke was working full time for the Union,
so she knew who he was. She told him that she had no open-
ings at the smelter (for electricians) and then added, ‘‘Don’t
you have a full-time job?’’ (Tr. 325.)
Still other relevant background concerns Post’s account of
alleged ‘‘repercussions’’ caused by the filing of the unfair
labor practice charge. According to Post, when it came time
for her contract renewal with the Stillwater Mine, she was
thoroughly questioned about what kind of labor relations
problems she was having with the Union (Tr. 334). In light
of Post’s testimony quoted above, it is clear to me that Re-
spondent had a retaliatory motive in filing its suit in state
court. As further proof, I note that the Board has held that
a punitive damage claim as Respondent seeks in its state
court complaint (G.C. Exh. 6, p. 4) may indicate a retaliatory
motive. American Pacific Concrete Pipe Co., supra, 292
NLRB at 1262; Summitville Tiles, supra, 300 NLRB at 65.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. The state court lawsuit filed by Respondent has not
been preempted by the Act.
2. By filing and maintaining a state civil action for mali-
cious prosecution against Donald Burke and the Union, Inter-
national Brotherhood of Electrical Workers, Local 532, Re-
spondent violated Section 8(a)(1) and (4) of the Act.
REMEDY
On concluding that Respondent has engaged in certain un-
fair labor practices, I will recommend to the Board that it be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that Respondent LP Enterprises filed against
Donald Burke and International Brotherhood of Electrical
Workers, Local 532 a baseless lawsuit in the 13th Judicial
District Court, Yellowstone County, Montana (90-1068) al-
leging malicious prosecution in filing a false and fraudulent
unfair labor practice charge with the National Labor Rela-
tions Board, which charge had no basis in law or fact in re-
taliation for Burke’s and the Union’s protected concerted ac-
tivities, I will recommend that Respondent LP Enterprises be
ordered to cease and desist and to withdraw the lawsuit. In
addition, I will further recommend that Respondent LP En-
terprises be ordered to place Donald Burke and the Union in
the position they would have been absent the violations of
Section 8(a)(4) and (1), and to make them whole for all legal
expenses they incurred in the defense of the lawsuit, plus in-
terest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, LP Enterprises, Billings, Montana, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Initiating or maintaining a baseless lawsuit against
Donald Burke and the Union in retaliation for their protected
concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw its lawsuit for malicious prosecution (90–
1068) filed in the Yellowstone County Court in Montana
against Donald Burke and the Union and reimburse them for
all legal expenses incurred in the defense of the lawsuit, in
the manner set forth in the remedy section of the decision.
(b) Post at its place of business in Billings, Montana, cop-
ies of the attached notice marked ‘‘Appendix.’’9 Copies of
the notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.