B E & K Construction Co.

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 717 (N.L.R.B. 1999)

BE & K CONSTRUCTION CO. 717
BE & K Construction Company and Steamfitters Lo-
cal 342, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL–
CIO and Local 302, International Brotherhood
of Electrical Workers, AFL–CIO and District
Council of Iron Workers of the State of Califor-
nia and Vicinity, International Union of Bridge,
Structural and Ornamental Iron Workers,
AFL–CIO and Contra Costa County Building
And Construction Trades Council, AFL–CIO
and Northern California District Council of La-
borers, Laborers International Union of North
America, AFL–CIO and Bay Counties District
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO
and Operating Engineers Local Union No. 3, In-
ternational Union of Operating Engineers,
AFL–CIO and Local Union No. 378, Interna-
tional Union of Bridge, Structural and Orna-
mental Iron Workers, AFL–CIO and Cement
Masons Union Local No. 825, Operative Plaster-
ers and Cement Masons International Associa-
tion, AFL–CIO and Local No. 549, International
Brotherhood of Boilermakers, Iron Shipbuild-
ers, Blacksmiths, Forgers and Helpers, AFL–
CIO. Cases 32–CA–9474, 32–CA–9475, and 32–
CA–12531–1–8
September 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On October 18, 1995, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated com-
plaint alleging that the Respondent had violated Section
8(a)(1) of the Act. The Respondent filed an answer ad-
mitting in part and denying in part the complaint allega-
tions and raising certain affirmative defenses.
On March 13, 1996, the General Counsel filed a Mo-
tion for Summary Judgment and memorandum in sup-
port, with exhibits attached. The General Counsel sub-
mits that the Respondent’s answer raises no material is-
sues of fact requiring a hearing. On March 18, 1996, the
Board issued an order transferring the proceeding to the
Board and Notice to Show Cause why the motion should
not be granted.1 The Respondent filed an opposition to
the motion and a cross-motion for summary judgment in
its favor. The General Counsel filed a reply brief, the
Charging Parties filed briefs in support of the General
Counsel and in opposition to the Respondent, and the
Respondent filed an answering brief.

1 On March 21, 1996, the Board issued an amended order.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motions for Summary Judgment
The principal issue in this case is whether the Respon-
dent violated Section 8(a)(1) by filing and maintaining a
civil lawsuit against the Charging Party Unions in Fed-
eral district court. The General Counsel and the Unions
contend that the Respondent’s suit lacked merit because,
except for certain claims that the court dismissed with
prejudice at the Respondent’s request, the court granted
the Unions’ Motions for Summary Judgment in their
favor. The General Counsel and the Unions further ar-
gue that the Respondent sued the Unions in retaliation
for their having engaged in activities protected by Sec-
tion 7 of the Act. Because the suit lacked merit and was
filed for retaliatory purposes, the General Counsel and
the Unions urge that, under Bill Johnson’s Restaurants v.
NLRB,2 the Board should find that it was unlawfully filed
and maintained, and should require the Respondent to
reimburse the Unions for attorneys’ fees incurred as a
result of the suit. The General Counsel and the Unions
also dispute the Respondent’s contention that certain
allegations of the complaint are untimely.
The Respondent contends that its suit was lawful be-
cause, in its view, (1) the Unions’ actions that were the
subject of the suit were not protected by Section 7; (2) it
prevailed in certain respects in the district court litiga-
tion; (3) the suit had a reasonable basis in fact and law;
and (4) the suit was not filed with retaliatory intent. The
Respondent also argues that some of the allegations of
the complaint are time barred by Section 10(b). Finally,
the Respondent contends that even if it violated the Act,
the Board should not require it to pay the Unions’ attor-
neys’ fees.
On the basis of the record presented, we find that there
is no genuine issue as to any material fact and that the
General Counsel is entitled to judgment as a matter of
law. Thus, for the reasons discussed below, we agree
with the General Counsel and the Unions that the Re-
spondent’s suit was unmeritorious and that it was filed in
retaliation against the Unions’ protected activities. We
also reject the Respondent’s contention that some of the
complaint allegations are time barred. We therefore find
that the Respondent’s suit violated Section 8(a)(1) as
alleged. We also find it appropriate to order the Respon-
dent to make the Unions whole by reimbursing them for
the attorneys’ fees they incurred in defending against the
suit. In sum, we shall grant the General Counsel’s Mo-
tion for Summary Judgment and deny the Respondent’s
motion.
On the entire record, the Board makes the following
2 461 U.S. 731 (1983).
329 NLRB No. 68
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
FINDINGS OF FACT
For the purposes of deciding the issues raised in the
Motions for Summary Judgment, the factual record in
this case comprises the admitted allegations of the com-
plaint, other admissions made by the parties, and the
facts actually found by the courts.3 We make this state-
ment because the Respondent asserts that a number of
the allegations contained in its various claims were ac-
cepted as true by the courts and must be treated as facts
by the Board. With that assertion we emphatically dis-
agree.
There is no dispute that the Unions did, in fact, engage
in some of the conduct—filing a state court lawsuit, insti-
tuting grievance and arbitration proceedings, and engag-
ing in certain lobbying activities—that the Respondent
argued was unlawful. The courts found those actions not
to be unlawful, even if, as the Respondent contends, they
were undertaken with a secondary objective. Other ac-
tions alleged to be unlawful were the subject of claims
that the Respondent withdrew with prejudice; the court
made no factual determinations regarding them. The
Respondent nevertheless argues that the record in the
court proceedings establishes that all of its factual allega-
tions are true, including its allegations of an unlawful
secondary objective.
There is no merit to that contention. The courts, in
granting the Unions’ Motions for Partial Summary Judg-
ment, were required to view the record in the light most
favorable to the Respondent as the nonmoving party.4 In
finding that the Unions were entitled to judgment as a
matter of law, the courts had to assume the facts were as
the Respondent alleged, not to find them so. It is plain
from their decisions that the courts considered the
Respondent’s allegations and found that those allega-
tions, even if true, would not support a conclusion that
the Unions had acted unlawfully. The courts did not
find, as facts, either that the Unions engaged in the con-
duct that was the subject of the withdrawn claims or that
they acted from an unlawful secondary motive.5

3 We shall also consider the affidavits and declarations attached to
the parties’ briefs. It is well settled that, in ruling on a Motion for
Summary Judgment, we are required to construe the facts in the light
most favorable to the nonmoving party. Therefore, when ruling on the
General Counsel’s motion, we shall assume the facts as represented by
the Respondent are true unless they have been determined to be other-
wise by the courts. In ruling on the Respondent’s motion, we shall give
like treatment to the facts as represented by the General Counsel and
the Unions.
4 10 Wright & Miller, Federal Practice and Procedure, Civil 2d,
Sec. 2716.
5 The court of appeals did state that “the unions encouraged work
stoppages by unionized employees because of well-founded safety
concerns[,]” and “[t]hat these activities were not undertaken to unionize
this particular employer but in order to eliminate non-union shops
altogether by making an example of BE & K does not matter.” USS-
POSCO Industries and BE & K Construction Co. v. Contra Costa
County Building Trades Council, AFL–CIO, et al. 31 F.3d 800, 809
(9th Cir. 1994). Although those statements might appear to be factual
findings, we doubt the court meant them as such. Elsewhere, the court
I. JURISDICTION
The Respondent, BE & K Construction Company, is a
Delaware corporation with headquarters in Birmingham,
Alabama. It is engaged in industrial general contracting
throughout the United States. During the fiscal years
immediately preceding the filing of each of the charges
and preceding the date of the complaint, the Respondent
annually provided services valued in excess of $50,000
to customers located outside the State of Alabama. The
Respondent admits, and we find, that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that each of the Unions
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
USS-POSCO Industries (UPI) is a partnership formed
by USX Corporation and Pohang Iron and Steel Com-
pany to modernize and operate a steel facility in Pitts-
burg, California. UPI awarded a construction contract to
modernize that facility to the Respondent, which is a
nonunion contractor. The Respondent formed a joint
venture with Eichleay Constructors, Inc. (ECI) to per-
form the contract.
After the contract was awarded, the Unions allegedly
began a campaign against the Respondent. According to
the Respondent, that campaign was aimed at forcing UPI
to enter into an unlawful prehire agreement in violation
of Section 8(e), forcing UPI to cease doing business with
the Respondent, and ultimately eliminating nonunion
employers from the construction market in Contra Costa
County and elsewhere in California.
On September 21, 1987, the Respondent and UPI filed
suit under Section 303 of the Act in the U.S. District
Court for the Northern District of California.6 The com-
plaint alleged that the Unions:

• Advocated the adoption and enforcement of a toxic
waste ordinance in Contra Costa County, which
would impede the progress of the modernization
project, without any genuine belief that the project
would harm the environment;

• Picketed and handbilled at the plaintiffs’ premises
without disclosing their identities or the true nature
of their dispute with the plaintiffs, and induced and
encouraged employees of the Respondent’s subcon-
tractors to engage in a strike at the project;

referred to the Unions’ alleged conduct, and it did not indicate any
basis for doing otherwise in the case of the quoted material. We think
the court of appeals engaged in inartful drafting rather than fact-finding
in the quoted passages.
6 USS-POSCO Industries and BE & K Construction Co. v. Contra
Costa County Building Trades Council, AFL–CIO, et al., No. C–87–
4829 DLJ.
BE & K CONSTRUCTION CO. 719
• Filed, in bad faith, a lawsuit in California state court
(the Pile Drivers suit) alleging, among other things,
violations of California’s Health and Safety Code;
and

• Initiated collective bargaining grievance proceedings
against ECI under authority of collective-bargaining
agreements that did not apply to ECI.

The complaint alleged that the Unions’ conduct violated
Section 8(b)(4)(ii)(A) and (B).
The Unions filed motions to dismiss or for summary
judgment on three of the plaintiffs’ four claims. The
Unions argued that lobbying for the toxic waste ordi-
nance and filing the Pile Drivers suit were protected by
the First Amendment. They also argued that because the
grievance and arbitration process is the preferred method
of resolving labor disputes, resort to those proceedings
should not be found unlawful.
On July 29, 1988, the court granted the Unions’ mo-
tions in part and dismissed the allegations relating to
lobbying and grievance filing. The court found that ad-
vocacy of the toxic waste ordinance and lobbying for its
enforcement against the plaintiffs were protected by the
First Amendment and did not constitute unfair labor
practices.7 Concerning the Unions’ grievance filing, the
court noted that the grievances against ECI had been
successful and that there was no contention that the pro-
visions of the collective-bargaining agreement that the
Unions sought to enforce were illegal. The court found it
proper to allow further time for discovery on the claim
relating to the Pile Drivers suit and denied without preju-
dice the Unions’ motion to dismiss that claim.
On October 3, 1988, the plaintiffs filed an amended
complaint for damages and injunctive relief. The
amended complaint again alleged that the Unions’ con-
duct violated Section 8(b)(4)(ii)(A) and (B). It also
added the allegation that the Unions’ conduct violated

7 692 F. Supp. 1166. The court relied on the Noerr-Pennington doc-
trine, which holds that petitioning the government does not violate the
Sherman Antitrust Act, 15 U.S.C. 1 et seq., unless the petitioning is a
sham—i.e., in reality an attempt to interfere directly with competitors’
business relationships and not a genuine effort to influence legislation
and law enforcement practices. See Eastern Railroad Presidents Con-
ference v. Noerr Motor Freight, 365 U.S. 127 (1961); Mine Workers v.
Pennington, 381 U.S. 657 (1965). The court noted that Noerr-
Pennington had been adapted to the labor law context in Bill Johnson’s,
in which the Supreme Court held that filing a well-founded state court
lawsuit does not constitute an unfair labor practice. 692 F.Supp. at
1169. It also observed that the “sham” exception includes instituting
baseless, repetitive claims in an effort to bar competitors from mean-
ingful access to courts and administrative agencies. California Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). As there
was no allegation that the Unions’ activities were other than a genuine
effort to influence legislation and law enforcement practices, or that the
plaintiffs were denied meaningful access to present their own views
before the Contra Costa County Board, the court found that they did not
come within the sham exception to Noerr-Pennington. 692 F. Supp. at
1170.
Sections 1 and 2 of the Sherman Act, and demanded
treble damages and injunctive relief.
The Unions moved for partial summary judgment, for
dismissal of the amended complaint, and for sanctions.
On May 1, 1989, the court granted the Unions’ motion
for partial summary judgment with regard to the plain-
tiffs’ claim based on the Pile Drivers suit.8 The court
first noted that the plaintiffs had improperly sued even
the Unions that were not parties to the Pile Drivers suit,
and dismissed the suit against those Unions.9 As to the
remaining Unions, the court found, on the basis of dis-
covery that had taken place since it issued the previous
order, that the plaintiffs had failed to prove that the Pile
Drivers suit lacked a reasonable basis in law. Although
the Unions had not prevailed on the merits (the state
court denied their motion for a temporary restraining
order and for a preliminary injunction), the court noted
that after the Pile Drivers suit was filed, the Federal Oc-
cupational Safety and Health Administration had investi-
gated the jobsite and found a number of safety and health
violations. As it found no genuine issue of material fact
on the issue of health and safety problems on the jobsite
at the time the Unions filed their suit, the court found that
the plaintiffs had offered no evidence to support a find-
ing that the Unions’ suit lacked a reasonable basis in fact
and law. The court therefore dismissed the plaintiffs’
claim regarding the filing of the Pile Drivers suit.10
Turning to the amended complaint, the court held that
the plaintiffs were within their rights in filing an
amended complaint, but not in restating claims on which
summary judgment had already been granted. The court
therefore granted the Unions’ motion to strike or dismiss
the amended complaint, but allowed the plaintiffs to file
a revised amended complaint.
On May 22, 1989, the plaintiffs filed a second
amended complaint, including allegations of all the dis-
missed claims, and adding a claim under the Clayton
Act.11 The plaintiffs stated that they were realleging the
previously dismissed claims solely in order to preserve
their right to appeal under their understanding of control-
ling Ninth Circuit precedent. In support of the com-
plaint, the plaintiffs alleged a number of actions on the
part of the Unions that they had not alleged in the origi-
nal complaint. Those actions included

• Automatic petitioning of governmental entities for
delay and harassment purposes, regardless of the
merits of the petitions;

• Interfering with UPI’s attempts to obtain necessary
building permits;

8 721 F.Supp. 239.
9 Id. at 241.
10 Id. at 241–242.
11 15 U.S.C. 15 and 26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
• Instigating violent civil disorders at the UPI con-
struction site;

• Filing and prosecuting a series of overlapping, re-
petitive, and sham lawsuits against the plaintiffs and
others, without any reasonable expectation of suc-
cess on the merits, simply to harass the defendants
and to defeat the project through delay and inflation
of costs;

• Making known to all interested parties that the Un-
ions intended to file such suits and protests, but that
they would withdraw and refrain from filing such ac-
tions if UPI and the Respondent would agree to use
only union labor.

The Unions moved to strike or dismiss the second
amended complaint and for sanctions. On August 24,
1989, the court granted the motion to strike with regard
to the previously dismissed claims. It also rejected the
plaintiffs’ explanation for repleading the dismissed
claims, and granted the Unions’ motion for sanctions
under Rule 11 of the Federal Rules of Civil Procedure.
On November 21, 1989, the court issued an order strik-
ing specific portions of the second amended complaint.
In addition to the claims concerning lobbying for the
toxic waste ordinance, filing the Pile Drivers suit, and
grievance filing against ECI, the stricken paragraphs in-
cluded those related to automatic petitioning of govern-
mental entities, automatic protests of permits, and inter-
ference with UPI’s efforts to obtain building permits.
On March 23, 1990, UPI moved for voluntary dis-
missal, with prejudice, of all its claims against the Un-
ions. On March 27, 1990, the court granted the motion.
On June 8, 1990, the district court granted the Unions’
motion to limit discovery concerning the Respondent’s
antitrust claim.12 The court found that the statutory labor
exemption to the antitrust laws, which does not apply to
concerted action or agreements between unions and
“non-labor parties,” would exempt the Unions’ conduct
from antitrust liability unless the Respondent could show
both a combination with nonlabor groups and an ille-
gitimate purpose in that combination. Accordingly, the
court limited discovery to the issue of whether the Un-
ions combined with contractors, manufacturers, of other
commercial entities involved in the same market for con-
struction services as the Respondents, and whether any
such combinations were for purposes other than organiz-
ing the Respondent’s employees and maintaining area
standards.
On July 25, 1991, the Unions moved for summary
judgment on the Respondent’s antitrust claim. The court
granted the motion on September 5, 1991, noting that the
Respondent had stated its nonopposition to the motion in
light of the court’s previous rulings.

12 134 LRRM 2590, modified 136 LRRM 2647 (July 26, 1990).
In early 1992, the parties to the district court action en-
tered into a stipulation that the Respondent’s remaining
claims for relief under Section 303 should be dismissed
with prejudice. As part of the stipulation, the Respon-
dent agreed to waive its right to appeal any matters con-
tained in the claims that were not the subject of the
court’s previous orders.
On February 13, 1992, the court issued an order for the
issuance of final judgment, noting that it had previously
granted partial summary judgment in favor of the Unions
on four of the Respondent’s claims and that it had dis-
missed the other two claims with prejudice pursuant to
the Respondent’s motion for a voluntary dismissal with
prejudice. The court thus ordered that final judgment
should issue in favor of the Unions and against the Re-
spondent, and that the Unions should recover their costs
of the lawsuit.
The Respondent appealed to the United States Court of
Appeals for the Ninth Circuit. On July 26, 1994, the
court of appeals affirmed the district court’s decision
granting summary judgment in favor of the Unions on
the Respondent’s antitrust claim.13 The court of appeals
held, however, that the district court had erred in finding
that to overcome the statutory labor exemption to the
antitrust laws, the Respondent had to prove both that the
Unions had combined with nonlabor groups and that the
combination had an illegitimate purpose. The court of
appeals therefore held that the lower court had erred in
limiting discovery to the former element, because the
Respondent could have established an antitrust violation
by proving that the Unions’ actions had an illegitimate
purpose, even if they were not taken in concert with
nonlabor groups. The court found a strong presumption
that some of the allegedly unlawful actions—e.g., picket-
ing and handbilling for organizing purposes, encouraging
work stoppages over safety issues—were protected from
antitrust liability. “More troublesome” were the allega-
tions that the Unions automatically protested permits
sought by the Respondent, lobbied for the passage of the
toxic waste ordinance and for its enforcement against the
Respondent, and brought frivolous lawsuits. The court
found that such conduct is not per se exempt from the
antitrust laws even if engaged in in pursuit of traditional
union interests.
The court held, however, that the district court’s error
was harmless, because the Unions’ actions were pro-
tected from antitrust liability under the First Amendment
under the Noerr-Pennington doctrine. The court found
that the Unions’ conduct did not lose its protection under
the “sham” exception to Noerr-Pennington. To come
within the “sham” exception, the court held, the Unions’
13 31 F.3d 800. Although the Respondent’s original and amended no-
tices of appeal indicated that other issues were being appealed, the
court stated that the Respondent was actually appealing only the dis-
missal of its antitrust claims and the district court’s imposition of sanc-
tions. 31 F. 3d 801
BE & K CONSTRUCTION CO. 721
conduct must have been both objectively baseless, in the
sense that no reasonable litigant could realistically expect
to prevail on the merits, and intended to interfere directly
with the Respondent’s business relationships.14 Because
the Respondent alleged that the Unions had brought a
whole series of legal actions without regard for the mer-
its, the court found, the inquiry must be whether the ac-
tions were filed not out of a genuine interest in redressing
grievances, but essentially for purposes of harassment;
thus, the Respondent’s allegations, if proved, would
overcome the Unions’ Noerr-Pennington defense. The
court found that the Unions’ conduct had not lost its pro-
tection, however, because more than half of the actions
filed by the Unions had proved successful. The court
was unable to reconcile that relatively high “batting av-
erage” with the Respondent’s contention that the actions
were filed without regard to the merits.
The court of appeals also reversed the district court’s
award of Rule 11 sanctions. It held that although the
plaintiffs were wrong in believing that they were re-
quired to replead the dismissed claims in order to pre-
serve those issues for appeal, their basis for that belief
was not frivolous.
B. Discussion
The complaint alleges that the Respondent violated
Section 8(a)(1) by bringing a meritless suit against the
Unions to enjoin them from engaging in protected con-
certed activity and to recover damages from them. Thus,
our disposition of this case turns on the application of
principles set forth in Bill Johnson’s Restaurants.
In Bill Johnson’s, the Supreme Court held that the
Board 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.15 While acknowledging the Board’s strong interest
in preventing interference with protected Section 7
rights, the Court said that this interest must be balanced
against two countervailing interests: the First Amend-
ment right of access to the courts and the States’ interest
in protecting the health and welfare of their citizens.
Thus, if the state court suit has a reasonable basis, the
Board may not issue an order directing that the suit be
withdrawn, but rather must stay its hand and await the
results of the state court adjudication with respect to the
merits of the suit.16
On an entirely different footing, however, are suits that
have been litigated to completion, for at that point the
plaintiff has had his day in court and the state’s interest
in providing a forum for its citizens has been vindi-

14 See California Motor Transport, supra, and Professional Real Es-
tate Investors v. Columbia Pictures Industries, 508 U.S. 49 (1993).
15 461 U.S. at 743. Exceptions to that principle, not relevant to this
proceeding, are suits that are claimed to be beyond the jurisdiction of
state courts because of federal preemption and suits that have objectives
that are illegal under Federal law. Id. at 737–738 fn. 5.
16 Id. at 749.
cated.17 If the suit has resulted in judgment in favor of
the plaintiff (the Respondent in the unfair labor practice
case), then the unfair labor practice complaint must be
dismissed, “for the filing of a meritorious law suit, even
for a retaliatory motive, is not an unfair labor practice.”18
However, the Court said, if judgment has gone against
the plaintiff, or the suit has been withdrawn or has been
otherwise shown to be without merit, then the unfair la-
bor practice proceeding may go forward. If the Board
finds that the suit was filed with retaliatory intent, it may
find a violation and order appropriate relief.19 Moreover,
the suit’s having been found unmeritorious is a factor
that the Board may take into account in determining
whether it was filed in retaliation for the exercise of Sec-
tion 7 rights.20
Notwithstanding the distinction clearly drawn by the
Court between the standard that must be met to enjoin
the prosecution of a pending lawsuit, and the standard
that must be met to find an unfair labor practice once the
lawsuit has been finally adjudicated, the Respondent ar-
gues that its suit cannot be deemed to lack merit if there
was a reasonable basis for pursuing it. In support of this
proposition, the Respondent cites the Supreme Court’s
holding in Professional Real Estate Investors that a suit
cannot be deprived of antitrust immunity as a sham
unless it is “objectively baseless.”21 We reject this con-
tention. In Bill Johnson’s, as we have stated, the Su-
preme Court held that the Board may not enjoin the
prosecution of an allegedly retaliatory state court lawsuit
unless the suit lacks a “reasonable basis.” But once the
suit has been adjudicated and the employer has lost, the
Court continued, the Board may proceed to determine
whether the suit was brought with retaliatory motive and
thus violated the Act. The Board has interpreted that
holding as meaning that, even if an employer had a “rea-
sonable 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 activ-
ity.22 That principle squarely applies here.
The contention that Professional Real Estate Investors
requires a different result has already been specifically
rejected by the Ninth Circuit Court of Appeals. In Dia-
mond Walnut Growers v. NLRB,23 the court reaffirmed
17 Id. at 747.
18 Id.
19 Id. at 747, 749.
20 Id. at 747.
21 Professional Real Estate Investors v. Columbia Pictures Indus-
tries, supra at 60.
22 See, e.g., Machinists Local 91 (United Technologies), 298 NLRB
325, 326 (1990), enfd. 934 F.2d 1288 (2d Cir. 1991), cert. denied 502
U.S. 1091 (1992); Operating Engineers Local 520 (Alberici Construc-
tion), 309 NLRB 1199, 1200 (1992), enf. denied on other grounds 15
F.3d 677 (7th Cir. 1994); Summitville Tiles, 300 NLRB 64, 65 fn. 6
(1990); Vanguard Tours, 300 NLRB 250, 255 (1990), enf. denied in
relevant part 981 F.2d 62 (2d Cir. 1992).
23 53 F.3d 1085 (9th Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
the distinction between pending suits, which can be en-
joined only on a showing that they lack a reasonable ba-
sis, and suits that have been adjudicated adversely to the
employer, which may be found unlawful if filed with
retaliatory intent. The court held that Professional Real
Estate Investors and similar cases did not alter the Su-
preme Court’s approach to allegedly retaliatory lawsuits
under Section 8(a)(1) as announced in Bill Johnson’s.
We agree with the court, and we reject the Respondent’s
suggestion that we revisit this settled area of the law.
Applying these principles to the circumstances of this
case,24 we note that the General Counsel issued the com-
plaint in this case after the Respondent’s suit had been
adjudicated and its appeals had run their course. The
issue here, therefore, is not whether the Respondent’s
suit lacked a reasonable basis, but whether it lacked merit
(and, if it lacked merit, whether it was filed with a mo-
tive to retaliate against the Unions for engaging in pro-
tected conduct).
1. Did the Respondent’s district court suit lack merit?
In deciding whether the suit lacked merit, we address
first the question of the deference to be accorded in this
proceeding to the federal courts’ rulings on the merits of
Respondent’s suit.
The Supreme Court in Bill Johnson’s treated the state
court’s final disposition of the state court suit as determi-
native on the question of whether the suit was meritori-
ous. Thus, the Court explained, if the employer prevails
in the state court suit and obtains judgment against the
employees, he should also prevail before the Board and
the complaint should be dismissed, “for the filing of a
meritorious law suit, even for a retaliatory motive, is not
an unfair labor practice.”25 By the same token, however,

[I]f judgment goes against the employer in the state
court . . . or if his suit is withdrawn or is otherwise
shown to be without merit, the employer has had its
day in court, the interest of the State in providing a fo-
rum for its citizens has been vindicated, and the Board
may then proceed to adjudicate the . . . unfair labor
practice case. The employer’s suit having proved un-
meritorious, the Board would be warranted in taking
that fact into account in determining whether the suit
had been filed in retaliation for the exercise of the em-
ployees’ Sec. 7 rights.26

24 Although Bill Johnson’s involved a state court lawsuit, the Board
has applied its principles to cases involving allegedly retaliatory federal
court suits as well. See, e.g., Grinnell Fire Protection Systems Co., 328
NLRB No. 76 (1999); BASF Wyandotte Corp., 278 NLRB 173, 181 fn.
26 (1986). In applying those principles here, we note that the First
Amendment right of access to the courts, which concerned the Court in
Bill Johnson’s, is implicated just as strongly when the lawsuit at issue
is a federal court suit as it is when the suit at issue is a state court suit.
25 461 U.S. at 747.
26 Id. (emphasis added).
In this case, as we have noted, the Respondent sued in fed-
eral rather than state court, and its claims alleged violations
of federal law rather than of state law. However, we see no
reason not to regard the rulings of the federal courts here as
equally determinative on the question of whether the Re-
spondent’s federal court lawsuit lacked merit for purposes
of a Bill Johnson’s analysis.
As antitrust law is primarily the concern of the federal
courts and not of the Board, we do not hesitate to defer to
the courts’ determinations with regard to the merits of
the antitrust claims in the Respondent’s suit. We ac-
knowledge that the Section 303 claims stand on some-
what different footing, inasmuch as they involve an issue
over which the Board and the courts have concurrent
jurisdiction: whether the Unions engaged in conduct
which violates Section 8(b)(4) of the Act.27 However,
because the Respondent here elected to pursue its 8(b)(4)
claims against the Unions in the form of a Section 303
suit in federal court rather than as an unfair labor practice
charge before the Board, we think it appropriate to look
to the federal courts’ disposition of those claims as well
as the antitrust claims as the test of whether the claims
were meritorious.
a. The adjudicated claims. As we have discussed, the
district court granted the Unions’ motions for partial
summary judgment and dismissed the Respondent’s Sec-
tion 303 claims based on the Unions’ lobbying for pas-
sage and enforcement of the toxic waste ordinance, their
prosecution of the Pile Drivers suit, and their institution
of grievance and arbitration proceedings against ECI.28
The court also granted partial summary judgment in fa-
vor of the Unions and dismissed the Respondent’s anti-
trust claim, and the court of appeals affirmed, albeit on a
different theory. Thus, with respect to those portions of
the Respondent’s suit that were actually adjudicated, the
court rendered judgment for the Unions and against the
Respondent. Accordingly, those portions of the Respon-
dent’s suit were unmeritorious within the meaning of Bill
Johnson’s.
The Respondent contends, however, that its suit must
be found meritorious. It argues that it actually prevailed,
at least in part, because the court of appeals reversed the
district court concerning both the standard to be applied
27 Sec. 303 provides that

(a) It shall be unlawful, for the purpose of this section only
. . . for any labor organization to engage in any activity or con-
duct defined as an unfair labor practice in section 8(b)(4) of the . .
. Act.
(b) Whoever shall be injured in his business or property by
reason of any violation of subsection (a) may sue therefor in any
district court of the United States . . . and shall recover the dam-
ages by him sustained and the cost of the suit.

28 As noted above, the district court also struck a number of portions
of the second amended complaint that were related to the claims as to
which it granted partial summary judgment. We consider those
stricken portions of the complaint to have been adjudicated as well as
the claims themselves.
BE & K CONSTRUCTION CO. 723
in determining whether the Unions’ actions lost their
protection under the antitrust laws and the matter of
sanctions. The Respondent also urges that its suit cannot
be found to be without merit because it was not objec-
tively baseless in the sense that no reasonable litigant
could realistically expect to succeed on the merits.
We reject the Respondent’s contentions as lacking in
merit. The first, that the court of appeals’ decision vindi-
cated important aspects of the Respondent’s claims, is
bereft of either logical or factual support. All of the Re-
spondent’s claims that were litigated were dismissed;
judgment was entered against the Respondent and in fa-
vor of the Unions; and the Unions were awarded costs as
the prevailing parties.29 That the court of appeals agreed
with the Respondent concerning certain aspects of anti-
trust law is beside the point, as is its holding that the Un-
ions might have been guilty of antitrust violations had
they, in fact, engaged in a pattern of suit-filing without
regard to the merits. The point is that the Respondent
alleged that the Unions had violated the antitrust laws by
engaging in such a pattern of conduct, and the court
found that they had not. That it reached that conclusion
on a different theory from that of the district court is ir-
relevant.
The Respondent also argues that it prevailed in part
because the court of appeals’ ruling will dissuade the
Unions from engaging in unlawful conduct in the future.
That argument, however, is both speculative and irrele-
vant to the issue of which party prevailed in the district
court action. To “prevail” in litigation, a party must do
more than obtain a ruling from the court as to what the
law is. The party must also persuade the court that the
law, as applied to the facts in the case, compels judgment
in its favor on at least some point.30 In that respect, the
Respondent failed at every turn.
Equally unavailing is the Respondent’s contention that
it “prevailed” in part because the court of appeals re-
versed the district court’s award of sanctions. The court
in no sense endorsed the merits of the Respondent’s suit.
Indeed, its ruling in this regard concerned only the con-
sequences to the Respondent of pursuing an unmeritori-
ous suit. The court simply found that, having lost on the
merits regarding certain of its claims, the Respondent did
not act frivolously by repleading those claims in the be-
lief that it had to do so in order to preserve those issues
for appeal. In no way can this ruling on a procedural

29 Rule 54(d), Fed. R. Civ. P., provides for the award of costs to the
prevailing party in a civil action.
30 See City of Chanute, Kansas v. Williams Natural Gas Co., 31 F.3d
1041, 1048–1049 (10th Cir. 1994), cert. denied 513 U.S. 1191 (1995)
(cities were not “substantially prevailing parties” for purposes of Clay-
ton Act, despite district court’s having originally granted preliminary
injunction against pipeline and cities’ having later entered into stipula-
tion agreement with pipelines granting certain rights to cities, where
cities’ antitrust damage claims were fully adjudicated on the merits and
rejected).
issue be read as supporting the Respondent’s present
contention that its suit had substantive merit.
b. The voluntarily dismissed claims. Not all the Re-
spondent’s claims were submitted to the courts for a de-
cision on the merits. Some, alleging (inter alia) unlawful
picketing, encouraging employees to engage in secon-
dary strikes, and violence, were voluntarily withdrawn
and dismissed with prejudice.
In Bill Johnson’s, the Supreme Court indicated that the
withdrawal of a claim could be regarded as equivalent to
an showing that it lacks merit:

If judgment goes against the employer in the state
court, however, or if his suit is withdrawn or is other-
wise shown to be without merit, the employer has had
its day in court, the interest of the state in providing a
forum for its citizens has been vindicated, and the
Board may then proceed to adjudicate the . . . unfair la-
bor practice case.31

Further, under Rule 41 of the Federal Rules of Civil
Procedure, dismissal of a complaint with prejudice at the
plaintiff’s request acts as a complete adjudication.
Unless otherwise provided for by the court, such a dis-
missal is subject to the rules of res judicata and is bind-
ing on the parties and their privies.32 Accordingly we
find that these claims that the Respondent voluntarily
withdrew with prejudice were, for Bill Johnson’s pur-
poses, unmeritorious.33
2. Was the Unions’ conduct protected by Section 7?
Although the courts dismissed most of the Respon-
dent’s claims against the Unions, the fact that those
claims were dismissed does not in and of itself mean that
the Unions’ actions were necessarily protected by Sec-
tion 7. Some kinds of lawful concerted conduct do not
enjoy the protection of the Act.34 Before we can deter-
mine whether the Respondent’s suit violated the Act,
then, we must determine whether the Unions’ actions
were affirmatively protected by Section 7.
31 461 U.S. at 747 (emphasis added).
32 Wright and Miller, Federal Practice and Procedure, Civil 2d,
Secs. 2364, 2367, 2373.
33 In Vanguard Tours, 300 NLRB at 255, the Board declined to read
the Supreme Court’s statement in Bill Johnson’s as suggesting that the
withdrawal of a lawsuit is in all circumstances equivalent to a showing
of lack of merit. The Board found, under the circumstances presented
in Vanguard Tours, that the employer’s withdrawal of its suit was
presumptively an admission that the suit lacked merit, and that the
employer had failed to rebut the presumption. In Vanguard Tours,
however, unlike this case, there was no indication that the employer
had withdrawn its suit with prejudice. We find the employer’s volun-
tary withdrawal of its claim with prejudice to be an admission that the
claims lacked merit.
34 E.g., NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard Broadcasting), 346 U.S. 464 (1953) (disloyally disparaging
employer’s product).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
Can union conduct ever be protected?
The Respondent contends that the conduct in question
was unprotected because it was engaged in by the Un-
ions, rather than by employees. The Respondent’s prem-
ise is that only employees—not unions—have Section 7
rights, and thus that its suit could not violate Section
8(a)(1) because it was not in retaliation against employee
protected activity. The Respondent relies on Lechmere,
Inc. v. NLRB,35 in which the Supreme Court stated that
“the NLRA confers rights only on employees, not on
unions or their nonemployee organizers.”36 The Respon-
dent also reasons that, because the Unions did not repre-
sent its employees, their actions were unprotected. We
find no merit to either contention.
To begin with, we do not read the Supreme Court’s
language quoted above in as sweeping a fashion as the
Respondent urges. Lechmere was concerned with one
narrow aspect of union activity—the attempt by union
organizers who were not employees of the respondent
employer to engage in organizing activity on that em-
ployer’s private property. The Court reaffirmed its ear-
lier holding in NLRB v. Babcock & Wilcox Co.,37 which
distinguished between the Section 7 right of employees
of the employer to engage in self-organizational activity
on the employer’s property and the (much more re-
stricted) right of nonemployee organizers, to whom the
Court held that Section 7 applies “only derivatively,” to
engage in trespassory activities on the same property.38
The Court noted its holding in Babcock that an employer
may have to allow nonemployee organizers on its prop-
erty if the union has no reasonable alternative means of
reaching the employees with its message.39 The Court
also did not question the exception to the general rule set
forth in Babcock & Wilcox that an employer may not
discriminate against unions in denying access to its prop-
erty.40 In our view, the Court’s reaffirmance in Lech-
mere of the right of nonemployee union organizers to
gain access to an employer’s property if no reasonable
alternative means of reaching the employees exist, to-
gether with its failure to question the proposition that
employers may not discriminatorily deny unions access
to their property, negate any suggestion that the Court
intended to hold that union conduct is never protected by
the Act.
Our confidence in this reading of Lechmere is bol-
stered by the language and purpose of the Act itself.
Section 1 sets forth the Act’s raison d’etre:

It is declared to be the policy of the United States
to eliminate the causes of certain substantial obstruc-

35 502 U.S. 527 (1992).
36 Id. at 532 (emphasis in original).
37 351 U.S. 105 (1956).
38 502 U.S. at 533.
39 502 U.S. at 533–534, citing Babcock, 351 U.S. at 112.
40 351 U.S. at 112.
tions to the free flow of commerce and to mitigate
and eliminate these obstructions when they have oc-
curred by encouraging the practice and procedure of
collective bargaining and by protecting the exercise
by workers of full freedom of association, self-
organization, and designation of representatives of
their own choosing, for the purpose of negotiating
the terms and conditions of their employment or
other mutual aid or protection.

To those ends, Section 7 provides that

Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection[.]

The Act thus unequivocally assures employees of the right
to join unions and to engage in “other concerted activities”
for “other mutual aid or protection.” It would be a curious
and myopic reading of these core provisions of the Act to
hold that, although employees are free to join unions and to
work through unions for purposes of “other mutual aid or
protection,” the conduct of the unions they form and join for
those purposes is not protected by the Act. Under that rea-
soning, conduct that is protected when engaged in by two or
more employees together would lose its protection if en-
gaged in by the employees’ union on their behalf. We de-
cline the Respondent’s invitation to read the Act in such a
perverse way.
The Respondent’s contention is also contrary to Board
and court precedent. In Diamond Walnut Growers,41
both the Board and the court of appeals found that the
employer violated Section 8(a)(1) by bringing a meritless
libel suit against the union with retaliatory motive. The
employer argued that it could not have violated Section
8(a)(1) because it sued only the union, not individual
employees. Both the Board and the court squarely re-
jected that argument. The Board affirmed the decision of
the administrative law judge, who held that “for the
Board to find an unfair labor practice pursuant to a Bill
Johnson’s Restaurants analysis, it is not necessary for
the plaintiff/respondent to sue employees in state court
nor to sue a union and employees. It is sufficient to sue a
union only as in this case.”42
Likewise, in Dahl Fish Co.,43 the Board adopted the
administrative law judge’s finding that the employer vio-
lated Section 8(a)(1) by filing suit against the union in
retaliation for the union’s filing a Board charge. The
judge specifically found the acts of the union and its
41 312 NLRB 61 (1993), enfd. 53 F.3d 1085 (9th Cir. 1995).
42 312 NLRB at 69 (emphasis added).
43 279 NLRB 1084, 1110–1111 (1986), enfd. mem. 813 F.2d 1254
(D.C. Cir. 1987).
BE & K CONSTRUCTION CO. 725
agents protected in those circumstances. A contrary
holding, she reasoned,

would abrogate the advantages of concerted activity the
Act was designed to protect by imposing on the em-
ployees the burden of filing charges to gain such pro-
tection. The employees would then be subjected to the
dangers of lawsuits with their attendant costs, which
could convince them to forgo their Section 7 rights to
file charges. Thus, I find that the Union is protected by
Section 8(a)(1) in these circumstances. To hold other-
wise would destroy the equilibrium the Act was de-
signed to establish, and would divest the employees of
the advantages gained by their decision to organize and
to be represented by the single voice of the Union.44

The identical reasoning applies here.45
The Respondent argues, however, that Diamond Wal-
nut is distinguishable because there the union represented
the employees of the employer who filed the suit, and
because those employees were engaged in a strike. The
Respondent notes that the court of appeals found that the
suit drained the union’s resources and inevitably inter-
fered with the employees’ exercise of their Section 7
right to strike. Because its employees were not repre-
sented by the Unions and did not engage in a strike or
other protected activity, the Respondent contends that its
suit did not interfere with their exercise of Section 7
rights, and therefore was not unlawful.
We disagree. Although the employers in Diamond
Walnut and Dahl Fish sued the unions that represented
their employees and that were helping those employees
to exercise their Section 7 rights, those are not the only
circumstances in which an employer’s suit against a un-
ion may interfere with the exercise of employees’ rights.
In the first place, employees of employers other than the
Respondent have Section 7 rights, and some of them
form or join unions in order to advance those rights.
Even if those individuals’ interests are not congruent
with, or are even antithetical to, the interests of the Re-
spondent’s employees, their concerted pursuit of those
interests, through unions or otherwise, is protected by
Section 7 except under circumstances not shown to exist
here. And the Respondent cannot lawfully interfere with
those employees’ exercise of their Section 7 rights
merely because it does not employ them. It is well estab-
lished that an employer violates the Act by interfering
with the exercise of Section 7 rights of employees of
other employers, or by causing other employers to dis-
criminate against their employees because of their union
or other protected concerted activities.46 Thus, assuming

44 279 NLRB at 1111.
45 See also Geske & Sons, Inc. v. NLRB, 103 F.3d 1366, 1377 (7th
Cir. 1997).
46 See, e.g., Dews Construction Corp., 231 NLRB 182 fn. 4 (1977),
enfd. mem. 578 F.2d 1374 (3d Cir. 1978); International Shipping Assn.,
297 NLRB 1059 (1990).
that the actions of the Unions on behalf of the employees
they represented were otherwise protected, they did not
lose their protected character vis-à-vis the Respondent
merely because the employees represented by the Unions
were not the Respondent’s employees. As the Supreme
Court noted in Eastex, Inc. v. NLRB,47 the employees
whose concerted activities may be protected under Sec-
tion 7 are defined by Section 2(3) to include any employ-
ees, not just those of any particular employer.48
For all the foregoing reasons, we find that the Respon-
dent’s suit is not immune from Section 8(a)(1) liability
merely because it was filed against the Unions, rather
than against employees, or because the Unions did not
represent the Respondent’s employees.
Was the Unions’ Actual Conduct Protected
The Respondent also contends that, whether or not un-
ion activity in the abstract can be protected by Section 7,
the Unions’ conduct here was not protected. The Re-
spondent relies in part on a complaint (later settled)
against Cement Masons Local 825, alleging violence and
rioting that assertedly was part of the conduct alleged to
be unlawful in the Respondent’s suit.49 It also cites a
General Counsel’s advice memorandum which analyzed
assertedly indistinguishable conduct in a different case
by another union and found it unprotected.50
a. The adjudicated claims. We consider first the con-
duct that was the subject of the Respondent’s claims that
were dismissed on the merits by the district court--i.e.,
the Unions’ legislative lobbying, suit filing, and institut-
ing grievance and arbitration proceedings. We note ini-
tially that each of those courses of action concerned con-
ditions of employment, and thus normally would be pro-
tected by Section 7 if engaged in by employees.51 Be-
cause concerted activity is not unprotected simply be-
47 437 U.S. 556 (1978).
48 Id. at 564. See also O’Neil’s Markets v. NLRB, 95 F.3d 733
(1996), in which the court of appeals, citing Eastex, agreed with the
Board that union area standards handbilling is protected by Sec. 7. See
Sears, Roebuck & Co. v. San Diego County District Council of Carpen-
ters, 436 U.S. 180, 206 fn. 42 (1978).
49 Case 32-CB-2787.
50 Tame T.I.C., Cases 27–CC–826 et al.
We reject at the outset the Respondent’s contention that either the is-
suance of a complaint against Cement Masons Local 825 or the advice
memorandum in Tame T.I.C. compels a finding that any of the Unions’
alleged conduct was unprotected. Neither action by the General Coun-
sel constituted a decision on the merits.
51 In Eastex, the Supreme Court held that Sec. 7 protects employees
who seek to improve working conditions by resorting to administrative
and judicial fora, and who appeal to legislators to protect their interests
as employees. 437 U.S. at 566. See also, e.g., Summitville Tiles, 300
NLRB at 65 (suits filed by employees found protected); Altex Ready
Mixed Concrete, 223 NLRB 696, 700 (1976), enfd. 542 F.2d 295 (5th
Cir. 1976) (union filing suit against employer for contract violation,
protected); Kaiser Engineers v. NLRB, 538 F.2d 1379, 1384–1385 (9th
Cir. 1976) (lobbying U.S. senators and congressmen concerning immi-
gration laws, protected) (Wray Electric Contracting, 210 NLRB 757,
762 (filing OSHA complaint found protected); Miami Systems Corp.,
320 NLRB 71, 77 (1995), revd. in part on other grounds 111 F.3d 1284
(6th Cir. 1997) (pursuing grievance to arbitration, protected).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
cause it is engaged in by unions, we find that those ac-
tions on the part of the Unions were presumptively pro-
tected.
The Respondent argues that the Unions’ conduct was
unprotected because it was engaged in with an unlawful
secondary objective. The Respondent brought the identi-
cal claims to the district court, however, and lost. The
court rejected the Respondent’s contention that each of
those actions violated Section 8(b)(4) and dismissed its
claims based on those contentions. The Respondent did
not appeal the dismissals. As we have observed, it is
possible for conduct to be lawful but not protected by
Section 7. But the Respondent argued to the court that
the Unions’ conduct was unlawful for the same reason it
now argues that that conduct was unprotected—i.e., be-
cause it allegedly had an unlawful secondary object.
Having litigated this very issue unsuccessfully before the
courts, and having failed to file a charge with the Board,
the Respondent will not now be heard to argue that the
Unions’ conduct was unprotected.
We note in particular that the district court held that
the Unions’ filing and processing of meritorious griev-
ances to enforce lawful contract provisions could not
violate Section 8(b)(4).52 The court cited Truck Drivers
Union Local 705 v. NLRB,53 in which the D.C. Circuit, in
reaching that result, disagreed with the Board. The
Board had held that, assuming that Bill Johnson’s applies
to grievance processing, even the processing of a merito-
rious grievance could violate Section 8(b)(4) if done with
a secondary objective.54 The Board has since indicated,
however, in agreement with the D.C. Circuit, that the
processing of a meritorious grievance does not violate
Section 8(b)(4) unless the grievance seeks to enforce an
unlawful contract clause, and has endorsed the court’s
distinction between illegal objective and retaliatory mo-
tive.55
Because it failed to convince the court that the Unions’
lobbying, suit filing, or grievance processing violated
either Section 8(b)(4) or the antitrust laws, and has sug-
gested no other reason why that otherwise protected con-
duct should be found to have lost its protected character,

52 It also held that the Unions’ lobbying activities did not run afoul
of Sec. 8(b)(4). Its decision was cited with evident approval in Brown
& Root v. Louisiana State, 10 F.3d 316 (1994), in which the Fifth Cir-
cuit clearly indicated that to find governmental lobbying to constitute
“coercion” within the meaning of Sec. 8(b)(4)(B) would pose poten-
tially serious First Amendment problems.
53 820 F.2d 448 (1987).
54 Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303, 1304
(1986). The Board held that the union’s grievance in that case had an
unlawful secondary objective and therefore came within the exception
mentioned in fn. 5 of Bill Johnson’s for suits filed with an unlawful
objective.
55 See Elevator Constructors (Long Elevator), 289 NLRB 1095
(1988), enfd. 902 F.2d 1297 (8th Cir. 1990), citing the D.C. Circuit’s
decision in Truck Drivers Union Local 705, supra; Teamsters Local
776 (Rite Aid), 305 NLRB 832 (1991), enfd. 973 F.2d 230 (3d Cir.
1992), cert. denied 507 U.S. 959 (1993).
we find that the Respondent has failed to rebut the pre-
sumption that the Unions’ conduct was protected.56
b. The voluntarily dismissed claims. The Respondent
also contends that the Unions engaged, in unprotected
acts of picketing, handbilling, violence, and other con-
duct that was not addressed on the merits by the court,
but was the subject of claims that were voluntarily dis-
missed with prejudice at the Respondent’s request. Thus,
the court made no findings as to whether the Unions en-
gaged in the conduct alleged and, if so, whether the con-
duct was lawful.
We find it unnecessary to decide whether those alleged
actions, if engaged in, were protected. We have already
found that the Unions’ lobbying, grievance filing and
processing, and lawsuit filing were protected activities.
If, then, the Respondent filed its suit in an attempt to
retaliate against the Unions for engaging in those pro-
tected actions, and the suit was unmeritorious, the suit
was unlawful, regardless of whether it was also targeted
at activities that were not protected. Accordingly, in our
view, whether the conduct alleged in the voluntarily dis-
missed claims was or was not protected by Section 7 is
irrelevant.
3. Was the Respondent’s lawsuit unlawfully motivated
For the reasons discussed above, we have found that
the Respondent’s suit lacked merit and that the Unions’
conduct that was the target of the suit was protected by
Section 7. In order to find that the Respondent violated
Section 8(a)(1), however, we must find that it either filed
or maintained its suit against the Unions in retaliation
against protected conduct. We find, on the basis of the
following evidence, that the Respondent’s suit had a re-
taliatory motive.
First, the Respondent’s suit was, by its terms, directed
at protected conduct. The complaint allegations in that
action expressly listed lobbying, suit filing, and griev-
ance filing as purportedly unlawful. As we have found,
each of those forms of conduct was protected. Since the
suit was aimed directly at protected activity, and neces-
sarily tended to discourage similar protected activity, it
was, by definition, retaliatory within the meaning of Bill
56 Contrary to the General Counsel and the Unions, we find that the
Respondent is not barred by Sec. 10(b) of the Act from contending that
the Unions’ conduct was unprotected. Sec. 10(b) provides that “no
complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge[.]” That provi-
sion has been interpreted by the Board also to preclude raising, as a
defense to a complaint allegation, conduct as to which Sec. 10(b) would
bar a complaint if it were alleged as an unfair labor practice. See, e.g.,
Sewell-Allen Big Star, 294 NLRB 312, 313 (1989), enfd. mem. 943
F.2d 52 (6th Cir. 1991), cert. denied 504 U.S. 909 (1992). We find that
principle inapplicable in the kind of Bill Johnson’s setting presented
here, where the General Counsel, in establishing a violation of Sec.
8(a)(1), must show that the Unions’ allegedly secondary activity, which
occurred outside the 10(b) period, was protected. Because of this re-
quired showing, the Respondent cannot be precluded from asserting
facts otherwise barred by Sec. 10(b) in countering the General Coun-
sel’s case.
BE & K CONSTRUCTION CO. 727
Johnson’s.57 Indeed, the Respondent as much as admits
a retaliatory motive. In its answering brief, the Respon-
dent states that it “filed its litigation in order to stop cer-
tain Union conduct which it believed to be unprotected
by the Act, and that after the suit, the activity stopped.”
Clearer evidence of retaliatory motive could hardly be
found.58
Moreover, in alleging that the Piledrivers suit was un-
lawful, the Respondent charged not only the Unions that
were parties to that suit but also some that were not. The
district court sensibly ruled that “[t]he non-party defen-
dants cannot be held liable for a[n] action based on the
filing of a lawsuit to which they were not parties,” and
dismissed the suit against the nonparty unions. This pur-
suit of an action against several unions that were not
even parties to the Piledrivers litigation indicates that the
Respondent was interested only in harassing the Unions,
not in obtaining justice, and is additional evidence that it
filed and maintained its suit with a retaliatory motive.
The reception the Respondent’s suit received at the
hands of the federal courts is still further evidence of
retaliatory motive. The Supreme Court in Bill Johnson’s
held that, when an employer’s suit is found unmeritori-
ous, “the Board would be warranted in taking that fact
into account in determining whether the suit had been
filed in retaliation for the exercise of the employees’ Sec-
tion 7 rights.”59 We do so here and find that the utter
absence of merit to the Respondent’s Section 303 claims
that were dismissed on motions for summary judgement
indicates a retaliatory motive on the part of the Respon-
dent which brought them.
4. Are portions of the complaint barred by
Section 10(b)
The charges filed by all the Unions except Steamfitters
Local 342 and IBEW Local 302 were filed on May 20,
1992, more than 4 years after the Respondent initiated its
civil suit. The Respondent contends that the complaint
allegations based on the 1992 charges were untimely
filed under Section 10(b).
We find no merit in that contention. The Board has
held that the General Counsel may add allegations to the
complaint outside the 6-month 10(b) period if they are
closely related to the allegations of a timely filed charge
and are based on conduct that occurred during the 10(b)

57 H.W. Barss Co., 296 NLRB 1286, 1287 (1989); Phoenix Newspa-
pers, 294 NLRB 47, 50 (1989).
58 In his affidavit, the Respondent’s counsel avers that the Respon-
dent filed its suit against the Unions to preserve its business from what
it reasonably believed to be unlawful activities by the Unions. The
courts, however, found that most of the Unions’ activities were not
unlawful and dismissed with prejudice the claims concerning the re-
maining activities. The Respondent’s mistaken belief that the Unions’
actions were unlawful, even assuming that it had a reasonable basis and
was held in good faith, is not a defense to a finding that its suit was
unlawful if, as we find, the suit lacked merit and was filed with a re-
taliatory motive. See Phoenix Newspapers, 294 NLRB at 49–50.
59 461 U.S. at 747.
period.60 Allegations are “closely related” if (1) they
arise from the same factual situation as those of the
timely filed charge, (2) they involve the same legal the-
ory, and usually the same section of the Act, and (3) the
respondent would raise the same or similar defenses to
both allegations.61
The Respondent concedes that the charges filed in
1988 by Steamfitters Local 342 and IBEW Local 302
were timely filed. And we find that the allegations of the
1992 charges are closely related to the earlier charges.
Thus, both sets of charges arise from the same factual
situation (the Respondent’s lawsuit against all the Un-
ions), involve the same legal theory (a violation of Sec-
tion 8(a)(1) under Bill Johnson’s), and have elicited iden-
tical defenses from the Respondent. As the 1992 charges
were based on conduct that took place during the 10(b)
period, we find that the allegations based on those
charges are not time-barred.62
CONCLUSIONS OF LAW
For all the reasons discussed above, we find that the
Respondent’s lawsuit against the Unions lacked merit,
that the Unions’ conduct that was the target of the suit
was protected by Section 7, and that the Respondent filed
and maintained its suit out of a desire to retaliate against
the unions for engaging in protected concerted activity.
We therefore find that the suit violated Section 8(a)(1) of
the Act.
REMEDY
Having found that the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) of the
Act, we shall order that it cease and desist and take cer-
tain affirmative action designed to effectuate the policies
of the Act. We shall order the Respondent to reimburse
the Unions for all legal and other expenses, including
attorneys’ fees, incurred in defending against the Re-
spondent’s lawsuit, with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), and
Teamsters Local 776 (Rite Aid Corp.), 305 NLRB 832,
835–836 and fn. 10 (1991), enfd. 973 F.2d 230 (3d Cir.
1992), cert. denied 507 U.S. 959 (1993).
Concerning the award of attorneys’ fees, we note that
the Board has consistently found it appropriate to order
employers to reimburse both employees and unions for
legal expenses, including attorneys’ fees, incurred in
defending unlawful suits by employers.63 Indeed, the
60 Redd-I, Inc., 290 NLRB 1115, 1116 (1988).
61 Id. at 1118.
62 We therefore need not address the Unions’ contention that the al-
legations based on the 1992 charges are not barred by Sec. 10(b) be-
cause the Unions were not aware that the Respondent’s suit lacked
merit until the district court dismissed it.
63 See, e.g., Diamond Walnut Growers, 312 NLRB at 71; Geske &
Sons, Inc., 317 NLRB 28, 30, 58–59 (1995), enfd. 103 F.3d 1366,
1378–1379 (7th Cir. 1997); Phoenix Newspapers, 294 NLRB at 51;
H.W. Barss Co., 296 NLRB at 1288; Summitville Tiles, 300 NLRB at
67.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
Supreme Court in Bill Johnson’s expressly stated: “If a
violation is found, the Board may order the employer to
reimburse the employees whom he had wrongfully sued
for their attorney’s fees and other expenses.”64
The Respondent contends, however, that an award of
attorneys’ fees to the Unions is foreclosed in this case. It
argues that the Court in Bill Johnson’s authorized such
awards only for employees, not for unions. It also con-
tends that attorneys’ fees may be awarded in Board cases
only to discourage frivolous litigation, and that its suit,
even if unmeritorious, was not frivolous.65 We find nei-
ther argument persuasive.
Although the Respondent correctly points out that the
Supreme Court in Bill Johnson’s expressly endorsed
awards of attorneys’ fees only to employees, we believe
that the reason was that the Court was addressing only
the case before it, in which the employer had sued em-
ployees, not a union. We find nothing in the Court’s
opinion to suggest that its reasoning was meant to apply
only to suits against employees and, like the Seventh
Circuit, we decline to draw by negative implication the
inference urged by the Respondent.66 Rather, we agree
with the Seventh Circuit’s observations in the course of
affirming an award of legal expenses:

The injured party, the Union that plays a necessary part
in the organizational activities of the employees, is
compensated for expenses that it would not have in-
curred in the absence of the baseless state law suit. An
adequate deterrent to unlawful attempts by employers
to hinder organizational attempts by unions is provided.
A baseless and retaliatory lawsuit against a union can
be a powerful weapon in the hands of an unprincipled
employer. Such an employer need not win its lawsuit
against a union to thwart the Union’s attempts to organ-
ize workers; rather, the employer need only impose
substantial costs and delays upon the Union. The
Board’s remedies in the face of such a potential abuse
must include an economic disincentive for engaging in
such conduct.67

The Respondent’s argument that it is inappropriate to
award attorneys’ fees unless a party has engaged in frivo-
lous litigation is also wide of the mark. We do not award
attorneys’ fees in Bill Johnson’s cases because employ-
ers’ suits are frivolous. We award them because the suits
are unlawful; they themselves constitute the unfair labor
practices for which a remedy must be provided.68 As the

64 461 U.S. at 747.
65 The Respondent relies on the Sixth Circuit’s decision in Johnson
& Hardin Co. v. NLRB, 49 F.3d 237 (1995), in which the court of ap-
peals relied on both of those theories in denying enforcement to perti-
nent provisions of the Board’s order. With all due respect to the court,
we disagree with its decision for the reasons discussed in text below.
66 Geske & Sons, Inc. v. NLRB, 103 F. 3d at 1378.
67 Id. at 1379.
68 See Service Employees Local 32B-32J v. NLRB, 68 F.3d 490, 496
(D.C. Cir. 1995) (enforcing Board’s award of attorneys’ fees against
court of appeals correctly observed in Geske & Sons, the
Unions would not have incurred those attorneys’ fees
except for the Respondent’s meritless lawsuit, and it is
both appropriate and necessary to order that they be
made whole and to provide an economic disincentive for
engaging in similar unlawful conduct.
ORDER
The National Labor Relations Board orders that the
Respondent, BE & K Construction Company, Birming-
ham, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Filing and prosecuting lawsuits with causes of ac-
tion against the Unions that are without legal merit and
that are motivated to retaliate against activity protected
by Section 7 of the Act.
(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) Reimburse the Unions for all legal and other ex-
penses incurred in the defense of the Respondent’s law-
suit in the manner set forth in the Remedy section of this
decision.
(b) Within 14 days after service by the Region, post at
its facilities in Birmingham, Alabama, and Contra Costa
County, California, copies of the attached notice marked
“Appendix.”69 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being
signed by the Respondent's authorized 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. Reasonable steps shall be taken by the Respon-
dent 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 cur-
rent employees and former employees employed by the
Respondent at any time since September 21, 1987.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

union that violated Sec. 8(b)(4)(B) by unlawfully demanding arbitra-
tion). Lang Towing, Inc., 201 NLRB 629 (1973), and Tiidee Products,
Inc., 194 NLRB 1234 (1972), enfd. as modified sub nom. Electrical,
Radio & Machine Workers v. NLRB, 502 F.2d 349 (D.C. Cir. 1974),
cert. denied 417 U.S. 921 (1974), cited by the Respondent, are inappo-
site to this case. Neither of those decisions involved lawsuits that
themselves violated the Act.
69 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.”
BE & K CONSTRUCTION CO. 729
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the Respondent’s cross-
motion for summary judgment 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by 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
concerted activities.

WE WILL NOT file and prosecute lawsuits with causes of
action against the Unions that are without legal merit and
that are motivated to retaliate against activity protected
by Section 7 of the Act.
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 reimburse the Unions for all legal and other
expenses incurred in the defense of our lawsuit, with
interest.

BE & K CONSTRUCTION COMPANY