NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,411, LP ENTERPRISES and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 532., (July 28, 1994), National Labor Relations Board, (Jul 28, 1994)

LP ENTERPRISES and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 532.

314 NLRB No. 99.Case No. 27-CA-11496. July 28, 1994 Michael D. Stevenson, Administrative Law Judge..

Before Stephens, Devaney and Browning.

Michael T. Pennington and Jeffrey L. Horowitz, for General Counsel. Jerome L. Froimson, Phoenix, Arizona, for Respondent. Walter C. Brauer III, Denver, Colorado, for Charging Party.

Discrimination--Filing Charge with NLRB--Filing State Civil Suit.--By filing and maintaining a state civil action against a union business manager and a union, based upon allegations of malicious prosecution, an employer discriminated against its employees. The employer filed its lawsuit in retaliation for the filing of unfair labor practice charges by the union against it, but did not have a reasonable basis in fact to do so. Further, the union had valid grounds for filing its charges with the NLRB, and the employer’s retaliatory motive was also evidenced by its claim seeking punitive damages. Section 8(a)(4).

Back reference: ¶4100.361.

Federal Preemption--Activities Prohibited, Protected by NLRA--Means of Adjudication Lacking.--An employer’s state court lawsuit that alleged malicious prosecution against a union business manager and his union by filing false unfair labor practice charges was not preempted by the NLRA. The Board had no means to adjudicate the allegations of malicious prosecution contained within the suit and, consequently, there was no risk of interference with the jurisdiction of the NLRB by the issues raised in the lawsuit. Section 10(a).

Back reference: ¶5505.084.

From Text of Board’s Decision

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 rulings, [2] findings, and conclusions and to adopt the recommended 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 alleging that the Respondent failed to hire him and three other union applicants for electrician positions at the Respondent’s smelter project due to their union affiliation. Following an investigation, the Board’s Regional Office found the charge to be without 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 Montana 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 malicious 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 Respondent violated Section 9(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 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 for a retaliatory motive. Bill Johnson’s Restaurants v. NLRB, [97 LC ¶10,130] 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 filing of an unfair labor practice charge is conduct protected by the National Labor Relations Act unless the charge was undertaken in bad faith. See Summitville Tiles, [1989-90 CCH NLRB ¶16,298] 300 NLRB 64, 65 fn.5 (1990). The judge accordingly reasoned that, in order to establish a reasonable 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 evidence 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 requirements of bad faith. See Linn v. Plant Guard Workers, [53 LC ¶11,061] 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 the 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 an 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 that he was not hired by the Respondent as an electrician 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 General 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 evidence, 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 reviewed 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 withdrawn or dismissed, and such disposition is not tantamount 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 to the truth), the excluded 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 Resondent argues in its exceptions was not considered by the judge and which, it argues, establishes that the instant charge was filed in bad faith and accordingly, 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 factual issue as to whether the union filed its unfair labor practice charge with knowledge that the charge allegations were false or with reckless disregard of the truth. Contrary to the Respondent’s contention, it was not incumbent 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 Respondent’s state court lawsuit lacked a reasonable basis. We further agree with the judge, or the reasons stated by him, that the lawsuit was filed with a retaliatory motive. Accordingly, the judge correctly concluded under the test in Bill Johnson’s, supra, that the Resondent unlawfully initiated and maintained the state court lawsuit against the union and Burke. [9]