Electrical Workers Ibew Local 532 (Brink Construction)

National Labor Relations Board - Board Decisions

Oct 26, 1988

291 N.L.R.B. 437 (N.L.R.B. 1988)

ELECTRICAL WORKERS IBEW LOCAL 532 (BRINK CONSTRUCTION)
International Brotherhood of Electrical Workers,
Local 532, AFL-CIO and Brink Construction
Co Case 19-CB-5087
October 26 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN CRACRAFT AND
HIGGINS
On November 7 1984 Administrative Law
Judge Jay R Pollack issued the attached decision
The Respondent (Local 532) filed exceptions and a
supporting brief The General Counsel and the
Charging Party (Brink) each filed cross exceptions
and a supporting brief Brink also filed an answer
ing brief in opposition to the Respondents excep
tions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings and
conclusions only to the extent consistent with this
Decision and Order
The issue presented here is whether Local 532
violated Section 8(b)(1)(B) of the Act by instituting
and maintaining a lawsuit in the United States Dis
trict Court for Montana seeking to compel Brink to
comply with the grievance and arbitration provi
sions of a collective bargaining agreement i For
the reasons set forth below we find no violation of
the Act and dismiss the complaint
Brink is a construction firm and has not at any
time been a member of NECA Western the multi
employer bargaining association herein In August
1980 Brink obtained a contact with the US De
partment of Energy (DOE) for a single construe
tion job (the DOE job) in Miles City Montana As
it commenced work on the DOE job Brink exe
cuted a Letter of Assent A with Local 532 s repre
sentatives In the Letter of Assent Brink author
ize[d] [NECA Western] as its collective bargaining
representative for all matters contained in or per
taining to the current approved Outside labor
agreement between the Western Line Constructors
and Local Union 532 IBEW The Letter of
Assent provided for termination by Brink of
NECA Western s authority by written notice given
at least 150 days prior to the current contract anni
versary date
The Local 532/NECA Western agreement in
effect at the time of Brink s letter ran from June 1
There are no exceptions to the recommended dismissal of the 8(b)(3)
allegations
437
1980 through May 31 1981 Brink applied that
agreement and its successor effective June 1 1981
through May 31 1983 to its employees on the
DOE job The agreements which specifically ap
plied to employer signatories of letters of assent
provided for automatic annual renewal after the
specific contract term absent written notification of
termination or change by a party to the agreement
at least 90 days prior to the anniversary date Brink
completed the DOE job in March 1982
On December 14 1982 Brink wrote a letter to
NECA Western and Local 532 informing them
that the job was complete and effective on that
date, Brink was revoking any authority that West
ern Line Constructors may have had to bargain on
[its] behalf as a result of signing a Letter of Assent
on August 25 1980 The letter made no reference
to Brink s contractual relationship with Local 532
NECA Western and Local 532 thereafter negotiat
ed another agreement effective June 1 1983
through May 31 1985
Brink did not work again within Local 532 s
Montana jurisdiction until after August 1983 when
it obtained a subcontract with General Electric for
another construction job (the GE job) in Miles
City Brink commenced work at the site in Septem
ber At no time during either the DOE or GE job
did Brink formally recognize Local 532 as the ex
elusive representative of Brink s employees based
on a demand for recognition supported by a con
temporaneous majority of employees
Local 532 s officials met with Brink in late Sep
tember and October 1983 and demanded that Brink
sign another Letter of Assent A a Letter of Assent
B (binding Brink to the terms of the multiemployer
agreement without authorizing NECA Western as
its bargaining agent) or an individual agreement
for the GE job embodying the same terms and
conditions as the multiemployer agreement Brink
rejected this demand Local 532 then argued that
Brink was bound to the 1983-1985 Local 532/
NECA Western agreement or to the automatic re
newal of the predecessor agreement and requested
initiation of the grievance and arbitration proce
dure that was identical under either agreement
Brink denied that it was bound by any agreement
On December 22 1983 Local 532 filed a Section
301(a) suit in the United States District Court for
Montana alleging that Brinks actions at the GE
jobsite constituted a breach of contract Local 532
sought enforcement of the contract by way of an
order compelling Brink to submit to the contract s
dispute resolution provisions Brink thereafter filed
the 8(b)(1)(B) charges at issue here
The judge concluded that by filing the Section
301 suit Local 532 had violated Section 8(b)(1)(B)
291 NLRB No 69
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Act The judge characterized the theory of
Local 532 s suit as the argument that Brink s revo
cation of bargaining authority from NECA West
ern did not operate as a timely withdrawal from
multiemployer bargaining He rejected this argu
ment as specious The judge also reasoned that
Local 532 s suit was insupportable as a matter of
law under the principles of Section 8(f) of the Act
The judge noted that none of Bnnk s employees on
the GE job were members of or represented by
Local 532 Local 532 could not demonstrate its ma
jonty at the GE jobsite the parties enjoyed no
mature 9 (a) bargaining relationship and Bnnk was
privileged to repudiate its 1980 prehire agreement
On January 24 1985, the district court found a
contract still existed between Brink and Local 532
and it granted summary judgment compelling
grievance and arbitration for Local 532 Electrical
Workers IBEW Local 532 v Brink Construction Co
CV-331-BLG (D Mont Jan 24 1985) In deter
mining that a contract still existed between Brink
and Local 532, the court reasoned that Brink s De
cember 14 1982 letter withdrew NECA Western s
bargaining authority but failed to serve clear ex
plicit and unequivocal notice of contract termina
tion pursuant to specific contract provisions for
such action Absent effective repudiation by Brink
the court held that Local 532 could enforce the
contract as permitted under the rationale of
McNeff Inc v Todd 461 US 260 (1983) 2 The
court further found no need to decide whether
Brink was bound to an automatic extension of the
1981-1983 agreement or to the successor 1983-1985
agreement , since the grievance and arbitration pro
visions were the same in each
On August 17 1987 the United States Court of
Appeals for the Ninth Circuit by a 2 to I vote
found that the district court erred in holding that a
labor agreement still existed between the parties 3
Noting that Local 532 conceded that Brinks letter
withdrew NECA Westerns authority to bargain on
Brink s behalf, the Ninth Circuit determined that,
absent such authority NECA Western could not
commit Brink to the subsequently negotiated 1983-
1985 agreement Moreover the Ninth Circuit con
cluded that the 1981-1983 agreement terminated
under its own terms on May 31 1983 According
ly the Ninth Circuit reversed the district court s
grant of summary judgment and remanded the
action for entry of judgment for Brink
At the outset of our analysis we note that subse
quent to the issuance of the judge s decision the
8 The court did not consider whether Bnnk s conduct or statements in
connection with the GE job might have repudiated the contract
8 Electrical Workers IBEW Local 532 v Brink Construction Co 825
F 2d 207 (9th Cir 1987)
Board reconsidered its view of Section 8(f) of the
Act and the status of prehire agreements in the
construction industry In John Deklewa & Sons 282
NLRB 1375 (1987) the Board held that a construc
tion industry employer cannot unilaterally repudi
ate an 8(f) agreement during its term
Summarizing the facts discussed above the issue
before us is whether Local 532 violated Section
8(b)(1)(B) when it filed a suit in district court
under Section 301 seeking a declaration that a col
lective bargaining agreement existed between Local
532 and Brink and an order compelling Brink to
abide by the agreements dispute resolution provi
sions More specifically Local 532 contended that
Brink was bound to either an automatic renewal of
the 1981-1983 contract or to the 1983-1985 succes
sor agreement The district court found merit in
Local 532 s contentions and entered summary judg
ment in its favor However a divided court of ap
peals reversed and held that no labor agreement ex
isted between Local 532 and Brink at the relevant
time
Local 532 s lawsuit has thus been proven to be
without merit but that does not mean that the suit
was ipso facto an unfair labor practice Rather the
lawsuit must have been instituted for an unlawful
objective before a violation of our Act can be
found See Bill Johnson s Restaurants v NLRB 461
U S 731 (1983) The judge concluded that an un
lawful objective was present here because in his
view Local 532 was seeking to compel Brink to
select NECA Western as its 8(b)(1)(B) representa
tive notwithstanding Brinks effective termination
of NECA Western s bargaining authority in De
cember 1982 We disagraee
In this regard, we find instructive our recent de
cision in Teamsters Local 483 (Ida Cal Freight) 289
NLRB 924 (1988) There the respondent union
filed a grievance and a Section 301 suit seeking a
determination that certain owner operators were
employees covered under the terms of a collective
bargaining agreement The General Counsel con
tended that the owner operators were independent
contractors not statutory employees and that the
union s grievance and lawsuit violated the Act be
cause those actions had the unlawful objective of
compelling union representation of the independent
contractors Although we agreed with the General
Counsel that the owner operators were independ
ent contractors and that the union s grievance and
lawsuit therefore lacked merit we nevertheless
concluded that the union did not commit an unfair
labor practice We reasoned that the union s con
tention that the owner operators were statutory
employees was reasonable and that the union s ac
tions were consistent with the goal of obtaining an
ELECTRICAL WORKERS IBEW LOCAL 532 (BRINK CONSTRUCTION) 439
adjudication through arbitration or court action of
the status of the owner operators Inasmuch as that
question had not been determined through an adju
dicatory process we concluded that the
[r]espondent had a legitimate object in seeking a
resolution of the issue through grievance arbitra
tion and through a Section 301 lawsuit Accord
ingly we dismissed the complaint
We conclude that the union lawsuit here similar
ly had a lawful objective One of Local 532 s alter
native arguments in the Section 301 litigation could
in no way be construed as contesting the effective
ness of Brink s withdrawal of bargaining authority
from NECA Western via its December 14 1982
letter Instead Local 532 asserted that the letter
served only to withdraw that bargaining authority
and did not without more terminate Brink s then
pending contract with Local 532 In other words
Local 532 contended that Brink remained bound to
the 1981-1983 agreement because it was automat[
cally renewed due to Brink s failure to terminate it
There can be little doubt that this contention was
reasonable and raised a bona fide contractual
issue 4 Regardless of the effect of Brink s Decem
ber 14 1982 letter Brink and Local 532 clearly
were parties to the 1981-1983 collective bargaining
agreement which contained automatic renewal
provisions In its Section 301 suit Local 532 was
seeking a determination of whether it in fact con
tinued to have any contractual rights pursuant to
the automatic renewal provisions of the 1981-1983
agreement 5 Because there had been no prior deter
urination of that question we conclude that Local
532 here, like the respondent in Ida Cal had a le
gitimate object in seeking a resolution of the issue
through a Section 301 lawsuit
Our decision finds further support in Supreme
Court precedent construing Section 301 In Charles
Dowd Box Co v Courtney 368 U S 502, 509
(1962) the Court stated that Section 301(a) re
flects congressional recognition of the vital impor
tance of assuring the enforceability of [collective
bargaining] agreements More specifically as
stated in Textile Workers v Lincoln Mills of Ala
bama 353 US 448 453 (1957) Section 301 was a
response to two congressional concerns
a primary concern that union as well as em
ployees should be bound to collective bargaining
contracts [and] a broader concern with a
procedure for making such agreements enforceable
in the courts by either party At one point the
Senate Report supra p 15 states We feel that the
aggrieved party should also have a right of action
in the Federal courts
The Court s discussion in Charles Dowd Box of the
legislative history of Section 301 clearly shows that
Congress intended the judiciary to be the appropri
ate forum for resolving contractual disputes
In this case Local 532 did no more than invoke
its right under Section 301 to file an action in the
Federal courts as an aggrieved party to resolve
a bona fide dispute as to whether a contract contin
ued to exist between it and Brink Local 532 s con
duct was in harmony with Congress decision to
leave the enforcement of collective bargaining
agreements to the courts in accordance with the
usual processes of the law Charles Dowd Box
supra 368 US at 511 (quoting H R Conf Rep
No 510 80th Cong 1st Sess p 42) Under these
circumstances we find no basis for branding Local
532 s suit as unlawful under our Act
Accordingly for all the above reasons we find
that Local 532 did not violate Section 8(b)(1)(B)
and we shall dismiss the complaint 6
ORDER
The complaint is dismissed
Because the legal merit of the contractual issue presented is not dis
positive of the unfair labor practice issue here we need not address issues
of estoppel and res judicata related to the collateral litigation in the Fed
eral courts Allbritton Communications 271 NLRB 201 202 fn 4 (1984)
But see Bay Area Sealers 251 NLRB 89 102-111 (1980) enfd 665 F 2d
970 (9th Cir 1982) Newport News Shipbuilding 253 NLRB 721 726-729
(1980) enfd 663 F 2d 488 (4th Cir 1981) We express no opinion con
cerning whether a lawsuit solely to bind Brink to the successor agree
ment or to the multiemployer unit would be an unfair labor practice
James C Sand Esq for the General Counsel
Benjamin Hilley and Emily Loring Esqs of Great Falls
Montana for the Respondent
Joseph S Dreesen Esq (Berens & Associates) of Omaha
Nebraska for the Charging Party
DECISION
4 Indeed the district court granted summary judgment for Local 532
and the dissenting judge on the court of appeals would have affirmed the
district court on the ground that the 1981-1983 agreement was renewed
automatically
5 We do not rely on Local 532 s alternative theory that Brink was
bound to the terms of successor agreements negotiated between Local
532 and NECA Western after Brink s December 1982 revocation of
NECA Western s bargaining authority In addition to the extent that the
Union continues to assert that Brink s employees are part of a multiem
ployer unit we note that the Board in Deklewa rejected the merger doc
tune in construction industry 8(f) relationships and held that in deter
mining the appropriate unit for election purposes a single employer unit
will normally be appropriate
STATEMENT OF THE CASE
JAY R POLLACK Administrative Law Judge I heard
this case in trial on August 28 1984 at Billings Mon
tana Brink Contruction Co (Brink) filed a charge on
February 27 1984 against International Brotherhood of
Electrical Workers Local 532 AFL-CIO (Respondent
or the Union) alleging that Respondent had engaged in
violations of Section 8(b)(1)(B) and (b)(3) of the National
Labor Relations Act On March 30 1984 the Regional
Director for Region 19 of the National Labor Relations
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board issued a complaint and notice of hearing against
Respondent
All parties were given full opportunity to appear to
introduce relevant evidence to examine and cross exam
me witnesses to argue orally and to file briefs Based on
the entire record i and from my observation of the de
meanor of the witnesses and after due consideration of
the briefs filed on behalf of the parties I make the fol
lowing
FINDINGS OF FACT AND CONCLUSIONS
I JURISDICTION
Brink is a South Dakota corporation with a principal
place of business in Rapid City South Dakota where it
is engaged in the business of electrical powerline con
struction During the past 12 months Brink has provided
services to customers outside the State of South Dakota
valued in excess of $50 000 The Union admits that Brink
is an employer as defined in Section 2(2) of the Act and
is engaged in an industry affecting commerce as defined
in Section 2(6) and (7) of the Act Further the Union
admits and I find that it is a labor organization within
the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Brink is a South Dakota based firm engaged in power
line and substation construction Although Brink works
primarily in the Dakotas it has undertaken work in other
States including Montana Brink has no contract with
any labor organization covering its home shop but has
in the past generally executed Letters of Assent to area
IBEW outside agreements 2 or has negotiated agree
ments with various IBEW locals for work within their
jurisdiction In most cases it has provided supervision
and at least a portion of the work force from among its
regular core of South Dakota based employees
Respondent is an IBEW local with outside jurisdiction
(which includes powerline and substation construction
work) over the eastern portion of the State of Montana
including the area around Miles City Its sister local
Local 44 has parallel jurisdiction over the western por
tion of the State The two locals have traditionally nego
tiated a common statewide outside construction agree
ment with the Western Line Constructors Chapter of the
National Electrical Contractors Association (NECA
Western) an industrywide employer association NECA
Western covers a number of Western States and has a
series of such agreement with various IBEW locals
'On September 28 1984 counsel for the General Counsel made a
motion to correct the record Because the motion was unopposed the
corrections contained there are granted and incorporated sua sponte into
the record as ALJ Exh 1
z In general a Letter of Assent A designates a chapter of the National
Electrical Contractors Association (NECA) as the bargaining agent for a
multiemployer bargaining contract with a local or locals of the Interna
tional Brotherhood of Electrical Workers The Letter of Assent B pro
vides that the employer agrees to the terms and conditions of the multi
employer agreement but does not authorize NECA to bargin on its
behalf
Brink has not at any time been a member of NECA
Western It did at one time belong to the Missouri
Valley Line Constructors Chapter which covers its
home State and other States in which it more frequently
works but it is no longer a member of any NECA chap
ter
In August 1980 Brink obtained a contract from the
U S Department of Energy to build a powerline substa
tion at Miles City Montana Simultaneously with the
commencement of work on that job it met with repre
sentatives of the Union and executed a proffered Letter
of Assent A 3 Pursuant to the terms of this Letter of
Assent A Brink authorized NECA Western to be its
collective bargaining representative for all matters con
tained in or pertaining to the current approved outside
labor agreement between the Western Line Constructors
and Local Union 532 The agreement further provided
that It shall remain in effect until terminated by the un
dersigned employer giving written notice to the Western
Line Constructors and to the Local Union at least one
hundred fifty (150) days prior to the then current anni
versary date of the aforementioned approved labor
agreement The then current agreement between the
Union and NECA Western was effective by its terms
from June 1 1980 through May 31 1981 That agree
ment was succeeded by an agreement effective from
June 1 1981 through May 31 1983 Brink worked on
the Miles City project from 1980 through 1982 and
during that time applied the 1980-1981 and 1981-1983
collective bargaining agreements to its employees
There is no dispute that Brink signed the agreement in
1980 before hiring the employees During the time that
Brink worked on the Miles City job it obtained its em
ployees from the Union s exclusive hiring hall In addi
tion Brink utilized certain of its employees from other
locations by agreement with the Union The union secu
my provisions of the collective bargaining agreement
were applied to the employees on the jobsite During this
time Brink had no other work in the jurisdiction of the
Union There is no serious doubt that the Union obtained
majority status during the life of this project The job
was completed in March 1982
On December 14 1982 with no work ongoing or
pending in the State of Montana Brink wrote a letter to
Respondent with a copy to NECA Western stating
We have completed all work that we had under
contract in Montana Therefore we inform you that
Brink Construction Company is revoking any au
thority that Western Line Constructors may have
had to bargain on our behalf as a result of signing a
Letter of Assent on August 25 1980 This revo
cation is effective on today s date
Neither the Union nor NECA Western responded to
Brink s letter Thereafter the Union and NECA Western
negotiated another collective bargaining agreement effec
tive by its terms from June 1 1983 through May 31
1985 Neither the Union nor NECA Western notified
3 As indicated earlier one of two standard forms utilized in the mdus
try pursuant to the terms of agreement between NECA and the IBEW
ELECTRICAL WORKERS IBEW LOCAL 532 (BRINK CONSTRUCTION)
Brink of the negotiations or the terms of the new agree
ment
Subsequently in August 1983 Brink was awarded an
other subcontract at Miles City This subcontract was
with General Electric Brink moved equipment and men
onto the site from South Dakota in late September 4
In September Bill Kemp a business agent for the
Union called Jay Brink secretary treasurer to discuss
the new Miles City subcontract Kemp and Brink agreed
to meet at Miles City on September 29 1983 to discuss
the matter
Jay Brink met with Kemp Tony Butorac a represent
ative of the IBEW and Peter Lombardozzi the Union s
business manager Lombardozzi asked if Brink planned
on signing a Letter of Assent for the Miles City project
Brink said that he was willing to talk about it but had in
mind a project agreement Brink wanted to be able to
move one half the work force approximately eight em
ployees onto the jobsite from other States and to have
the economic terms limited to the Davis Bacon stand
ards 5 Another demand by Brink was that it not be re
quired to pay subsistence pay for the job The Union of
fered to allow Brink to move three employees from
other jobsite and to fill the remainder of jobs with em
ployees from the Union s exclusive hiring hall The
Union asked Jay Brink to sign a Letter of Assent A or a
Letter of Assent B or an individual agreement with the
same terms and conditions Jay Brink said a Letter of
Assent A was out of the question and he would have to
talk to his partners about the Letter of Assent B There
was some discussion about possible problems if Brink did
not sign with the Union The meeting ended with Brink
telling the union agents that he would discuss the matter
with his partners and give them an answer before Octo
ber 10
Shortly before October 10 Jay Brink called Lombar
dozzi and told the union agent that the company had
turned over negotiations to Kevin Berens its attorney
On October 10 Berens called Lombardozzi and ex
pressed a desire to negotiate an agreement between Brink
and the Union Lombardozzi took the position that Re
spondent would agree only to a Letter of Assent A
Letter of Assent B or a parallel individual agreement
Under the terms of any of these three options the wages
and benefits would be the same as the current agreement
between the Union and NECA Western Berens asked
Lombardozzi to send him a contract proposal to begin
negotiations and Lombardozzi agreed to do so
However when Berens called back on October 17
Lombardozzi advised Berens that he had decided not to
send a proposal but was instead turning the matter over
to Benjamin Hilley the Unions attorney Thereafter
Hilley and Berens engaged in the exchange of a series of
letters Hilley took the position that Brink was bound by
the 1983-1985 agreement between the Union and
NECA Western Berens replied that Brink had with
4 Jay Brink Brink s secretary treasurer testified he knew that the em
ployees from South Dakota were not members of the IBEW based on
their prior association with the Company There is no evidence that these
employees were members of the Union
5 The wage and fringe package under Davis Bacon was $14 17 per
hour The cost of wages and fringes under the contract was $1648
441
drawn from NECA Western in 1982 and was not bound
by the 1983-1985 agreement On December 2 Respond
ent sent a request for a labor management meeting (the
first step of the grievance procedure under the Union
NECA Western agreement) 6 Berens declined such a
meeting because Brink was not bound to this agreement
On December 22 Respondent filed suit in the United
States District Court for the District of Montana Bil
lmgs Division seeking to compel Brink to comply with
the labor agreement by submitting the issue of whether it
was bound by the agreement to the labor management
meeting Respondent and Brink had filed cross motions
for summary judgment with the district court by the
time of the instant hearing On September 7 1984 the
court heard arguments and took the matter under advise
ment The case is still pending before the district court
Finally while Respondent and Brink disagreed about
whether Brink was bound to any agreement with the
Union Brink proceeded on the Miles City job on a non
union basis Brink transferred some employees from its
out of state jobsites and hired approximately four em
ployees from the Miles City area who had applied for
work directly at the site There is no evidence that any
of Brink s employees on the Miles City job were repre
sented by the Union
B Contentions of the Parties
The General Counsel contends that Respondents law
suit is so clearly unfounded that it must fail to survive a
motion for summary judgment thus clearing the way for
the Board to proceed with analysis of its object The
General Counsel argues that Respondents lawsuit violat
ed Section 8(b)(1)(B) in that it attempted to force Brink
to select NECA Western as its representative for pur
poses of collective bargaining Further the General
Counsel contends that Respondent violated Section
8(b)(3) by refusing to deviate from the NECA Western
agreement and by filing suit to force that agreement on
Brink Brink makes the same contentions as the General
Counsel Brink concedes however that in establishing
that the Union s lawsuit had no merit it has established
that the Union was not the collective bargaining repre
sentative of Brink s employees at the Miles City jobsite
Accordingly Brink concedes that if it is correct about its
central argument in the case the Union could not have
violated Section 8(b)(3) of the Act In accordance with
the General Counsel Brink argues that the filing of the
lawsuit was a violation of Section 8(b)(1)(B)
The Union contends that Brink s withdrawal of au
thonty from NECA Western did not terminate its obliga
tions under the agreement Thus the Union contends
that Brink is bound by either the 1981-1983 or 1983-
1985 agreement between the Union and NECA Western
In addition the Union argues that it bargained in good
faith with Brink and that its offer of an individual con
tract remains More important the Union argues that the
Board should not interfere with its access to the district
6 The labor management committee consisted of three persons repre
sentmg the union and three persons representing NECA Western
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
court and that no order should issue that would interfere
with the Union s prosecution of its lawsuit
C Analysis and Conclusions
1 The Supreme Court s Bill Johnson decision
In Bill Johnson s Restaurants v NLRB 461 U S 731
(1983) the U S Supreme Court reviewed the checkered
history of the question whether the Board may issue a
cease and desist order to halt an allegedly retaliatory
lawsuit filed by an employer in a state court The Court
weighed the considerations of the chilling effect of a
state lawsuit on an employee s willingness to engage in
activity protected by the Act and the Board s broad re
medial provisions to guarantee employees their Section 7
right against the employers right to access to the courts
under the First amendment The Court concluded that
the filing and presentation of a well founded lawsuit may
not be enjoined as an unfair labor practice even if the
lawsuit was filed in retaliation for the exercise of rights
protected by the Act However the Court found that
lawsuits based on insubstantial claims suits that lacked a
reasonable basis are not within the scope of first
amendment protection Thus the Court held that it is an
enjoinable unfair labor practice to prosecute a baseless
lawsuit with the intent of retaliating against an employ
ee for the exercise of rights protected by Section 7 of the
Act
The Court then considered what steps the Board could
take in evaluating whether a lawsuit lacks the requisite
reasonable basis The Court concluded that if a state
plaintiff is able to present the Board with evidence that
shows his lawsuit raises genuine issues of material fact
the Board should not proceed with the unfair labor prac
tice proceedings but should stay those proceedings until
the state court suit has been concluded The Court fur
ther stated that in cases involving mixed questions of fact
and law the Board should not deprive a litigant of his
right to have genuine state law legal questions decided
by the state judiciary Although the Board need not
defer if the plaintiff's position is plainly foreclosed as a
matter of law or is otherwise frivolous the Board
should allow such issues to be decided by the State tabu
nal if there is any realistic chance that the plaintiffs
legal theory might be adopted
In those cases where the Board awaits the outcome of
the lawsuit if the employer s case in state court ultimate
ly proves meritorious the employer would prevail before
the Board because the filing of a meritorious lawsuit is
not an unfair labor practice even if filed for a retaliatory
motive If the employer loses his lawsuit or the lawsuit is
otherwise shown to be without merit the Board may
then proceed to adjudicate its unfair labor practice case
and would be warranted in taking the suit s lack of merit
into account in determining whether the suit had been
filed in retaliation for the exercise of the employees Sec
tion 7 rights
Although the Bill Johnson case arose in the context of
a state court lawsuit its guidelines seem equally applica
ble to a Federal district court lawsuit The plaintiff in
Federal district court (the Union) is seeking its constitu
tional right to petition the Government for redress of its
grievances The same caveat applies here as in Bill John
son lawsuits lacking a reasonable basis are not within
the scope of this constitutional protection Under the ra
tionale of Bill Johnson the Board should not enjoin a
meritorious district court lawsuit but may enjoin a base
less lawsuit filed with an intent or purpose unlawful
under the Act The guidelines for determining whether
to await the outcome of the lawsuit also appear to be
equally applicable here If the plaintiff can show that his
lawsuit raises genuine issues of material fact or mixed
questions of law and fact the Board should allow the
plaintiff his day in court The Board however need not
defer if the plaintiffs position is plainly foreclosed as a
matter of law or is otherwise frivolous
In the instant case there are no material issues of fact
The Union and Brink have filed cross motions for sum
mary judgment The case does not involve any issue in
volving state law or any issue requiring special defer
ence Thus if the Union s position is plainly foreclosed
as a matter of law or is otherwise frivolous there is no
reason to await the proceedings in the district court Ac
cordingly I begin with an analysis of whether the
Union s lawsuit is foreclosed as a matter of law
2 The Union s lawsuit
As earlier stated Brink in 1980 signed an agreement
with the Union before hiring its employees Such an
agreement unlawful in other industries is lawful in the
construction industry under Section 8(f) of the Act 7
The Board has held that such agreements made lawful
under Section 8(f) bind the employer only for the par
ticular jobsite and that the Union must demonstrate its
majority at each new jobsite in order to invoke the pro
visions of Section 8(a)(5) of the Act 8 Of course there
are exceptions not applicable here 9
7 Sec 8(f) of the Act provides
It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees
engaged (or who upon their employment will be engaged) in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab
fished maintained or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) because (1) the majority
status of such labor organization has not been established under the
provisions of section 9 of this Act prior to the making of such
agreement or (2) such agreement requires as a condition of employ
ment membership in such labor organization after the seventh day
following the beginning of such employment or the effective date of
agreement whichever is later or (3) such agreement requires the
employer to notify such labor organization of opportunities for em
ployment with such employer or gives such labor organization an
opportunity to refer qualified applicants for such employment or (4)
such agreement specifies minimum training or experience ghalifica
tions for employment or provides for priority in opportunities for
employment based upon length of service with such employer in the
industry or in the particular geographical area Provided That noth
ing in this subsection shall set aside the final proviso to section
8(a)(3) of this Act Provided further That any agreement which
would be invalid but for clause (1) of this subsection shall not be a
bar to a petition filed pursuant to section 9(c) or 9(e)
8 See e g Dee Cee Floor Covering 232 NLRB 421 (1977) Acme
Marble & Granite Co 271 NLRB 908 (1984)
e See e g NLRB Y Haberman Construction Co 618 F 2d 288 (5th Cir
1980) Construction Erectors 265 NLRB 786 (1982)
ELECTRICAL WORKERS IBEW LOCAL 532 (BRINK CONSTRUCTION)
In the instant case when Brink was awarded a con
tract in August 1983 from General Electric it had not
had any work or employees in Montana since March
1982 Brink had revoked the authority of NECA West
em to represent it and was not a party to the 1983-1985
agreement between the Union and NECA Western
During the time period the Union was seeking an agree
ment from Brink the Company had first no employees
and later only employees transferred from its other job
sites None of those employees were members of or rep
resented by the Union Under Dee Cee Floor the Union
had to demonstrate its majority at this job before there
would be any obligation on the part of Brink to bargain
with the Union or apply the terms of any bargaining
agreement 10 However because there was no mature
bargaining relationship Brink could repudiate its previ
ous agreement with the Union regarding any new
projects or jobsites For this reason the Union s lawsuit
as a matter of law cannot succeed i i
The theory of the Union s lawsuit is that Brink s revo
cation of bargaining authority from NECA Western did
not operate as a timely withdrawal from multiemployer
bargaining Thus the Union argues that Brink was bound
by all subsequent agreements reached between itself and
NECA Western the 1983-1985 agreement in particular
I find that argument also to be contrary to the applicable
law
Under the guidelines of Bonanno Linen Service v
NLRB 454 US 404 (1982) any party may withdraw
from a multiemployer bargaining unit before the date set
for negotiations of a new contract or the date on which
negotiations actually begin provided that adequate
notice is given Once negotiations for a new contract
have commenced however withdrawal is permitted
only if there is mutual consent or unusual circum
stances exist Here the Union contends that the with
drawal of bargaining authority did not operate as a with
drawal from multiemployer bargaining I find Brink s
letter was effective to withdraw from NECA Western
authority to negotiate on its behalf and to withdraw from
any subsequent multiemployer bargaining
In the instant case the Letter of Assent contained the
following language regarding termination
In signing this letter of assent the undersigned
firm does hereby authorize Western Line Construc
tors Chapter NECA as its collective bargaining rep
resentative for all matters contained in or pertaining
to the current approved outside labor agreement be
tween the Western Line Constructors and Local
Union 532 IBEW This authorization in compli
ance with the current approved labor agreement
shall become effective on the 1st day of June 1980
It shall remain in effect until terminated by the un
dersigned employer giving written notice to the
Western Line Constructors and to the Local Union
io Of course Brink could have voluntarily agreed to sign another 8(f)
agreement
i i The Union contends that Sahara Tahoe Corp v NLRB 581 F 2d 767
(9th Cir 1978) leads to a contrary result That case however did not
involve an employer in the construction industry and is therefore map
posite
443
at least one hundred fifty (150) days prior to the
then current anniversary date of the aforementioned
approved labor agreement
According to the agreement Brink terminated its au
thorization of NECA Western with notice to the Union
Neither NECA Western nor the Union objected to
Brinks termination of the bargaining authority and nei
ther notified Brink of the 1983 negotiations NECA
Western had no authority to bargain for Brink in the
1983 negotiations and therefore Brink was not bound by
the 1983-1985 agreement Because of the terms of the
Letter of Assent the Union s argument that Brink had
not withdrawn from multiemployer bargaining is spe
cious Brink withdrew by terminating the very authority
by which it entered the multiemployer bargaining and in
accordance with the express terms of the Letter of
Assent the only document that it had executed with the
Union Cf Carpenters Local 743 (Armstrong & Smith)
261 NLRB 425 (1982) S Freedman Electric 256 NLRB
432 (1981)
3 The alleged violations of the Act
Having established that Brink had no bargaining obli
gation with the Union and was not bound to any collec
tive bargaining agreement in August 1983 the General
Counsel has undercut his allegations of an 8(b)(3) viola
tion The Charging Party concedes this point Under
Section 8(b)(3) of the Act it is an unfair labor practice
for a labor organization to refuse to bargain collectively
with an employer provided it is the representative of his
employees subject to the provisions of Section 9(a) (Em
phasis added ) 112 The express terms of the statute provide
that the Union could only have violated Section 8(b)(3)
if it was the exclusive bargaining representative and be
cause the Union was not the bargaining representative
no violation of this section can be found The General
Counsel argues that the conduct engaged in by the
Union has been found to be violative of Section 8(b)(3)
but does not address the fatal conflict between his argu
ment and the statute In the cases cited by the General
Counsel the offending union was the exclusive bargain
mg representative
It is clear that an employer cannot violate Section
8(a)(5) by refusing to bargain with a union which has a
valid prehire contract but which lacks majority status
See e g Dee Cee Floor supra R J Smith Construction
Co 191 NLRB 693 (1971) It follows that a union in the
same situation cannot violate Section 8(b)(3) by refusing
to bargain with the employer As noted by the Supreme
Court it was the intent of Congress when enacting Sec
tion 8(b)(3) to condemn in union agents the bargaining
attitudes that had been condemned in management by
the previously enacted Section 8(a)(5) NLRB v Insur
12 Sec 9(a) provides in pertinent part
Representatives designed or selected for the purpose of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes shall be the exclusive representatives of all the em
ployees in such unit for the purposes of collective bargaining in re
spect to rates of pay wages hours of employment or other condi
tions of employment
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance Workers (Prudential Insurance) 361 US 477 487
(1960) I shall therefore recommend dismissal of the
8(b)(3) allegations of the complaint
The critical question is whether the Union s district
court lawsuit violates Section 8(b)(1)(B) as an unlawful
attempt to restrain or coerce Brink into selecting NECA
Western as its representative for the purposes of collec
tive bargaining or the adjustment of grievances
In cases preceding Bill Johnson the Board and the
courts have found violations of Section 8(b)(1)(B) in the
maintenance of lawsuits to compel employers to agree to
multemployer bargaining and/or the selection of a multi
employer representative for grievance and arbitration
procedure Plumbers Local 525 (Federated Employers)
135 NLRB 462 (1962) Masters Mates & Pilots (Cove
Tankers) 224 NLRB 1626 1634-1636 (1976) enfd 575
F 2d 896 (D C Cir 1978) In Cove Tankers the union
was found to have violated Section 8(b)(1)(B) by inter
alia maintaining a lawsuit designed to compel the em
ployer to employ supervisors it represented rather than
those represented b a rival union The Board found that
the lawsuit was in furtherance of the union s larger ob
jective and that the lawsuit may not have been taken
in complete good faith The Board concluded that be
cause the respondent union s filing of the lawsuit was in
pursuit of an unlawful objective and was a tactic cal
culated to restrain the employers in the exercise of rights
guaranteed by the Act the respondent union violated
Section 8(b)(1)(B) of the Act 13
The remaining question is whether the rule of the Cove
Tankers case survives the Bill Johnson decision I find
that holding of the Bill Johnson case does not affect the
prior case law insofar as it concerns baseless lawsuits
Once a lawsuit is shown to be frivolous and therefore
not protected by the Constitution the Board is free to
find a violation if the lawsuit has an unlawful objective
of interfering with the rights of employees or employers
guaranteed by the Act In our case the objective of the
lawsuit is to hold Brink to its designation of NECA
8 The question of intent is an objective rather than a subjective test
See e g Television Wisconsin 224 NLRB 722 ( 1976) Service Employees
Local 680 (Stanford University) 232 NLRB 326 (1977) enfd 601 F 2d
980 982 (9th Cir 1979)
Western as its representative for purposes of collective
bargaining despite Brink s lawful termination of such au
thonty in 1982 Further the lawsuit was designed to
compel Brink s designation of NECA Western as its
grievance adjustment representative in accordance with
the terms of the Union s agreement with NECA West
em As indicated earlier both of these objectives are
made unlawful under Section 8(b)(1)(B) Cove Tankers
supra at 1635 Cf Danielson v Masters Mates Pilots 521
F 2d 747 (2d Cir 1975) Masters Mates & Plots (Seatrain
Lines) 220 NLRB 164 (1975)
CONCLUSIONS OF LAW
1 The Respondent International Brotherhood of Elec
trical Workers Local 532 AFL-CIO is a labor organ[
zation within the meaning of Section 2(5) of the Act
2 Brink Construction Co is an employer within the
meaning of Section 2(2) of the Act engaged in com
merce and in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act
3 By instituting and maintaining a lawsuit in the
United States District Court for Montana which is fore
closed as a matter of law and which has as its objective
coercing and restraining Brink Construction Co in its se
lection of its representative for purposes of collective
bargaining and the adjustment of grievances Respondent
has engaged and is engaging in an unfair labor practice
within the meaning of Section 8(b)(1)(B) of the Act
4 The General Counsel has failed to establish by a
preponderance of the evidence that Respondent has vio
lated Section 8(b)(3) of the Act as alleged in the com
plaint
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent International Brother
hood of Electrical Workers Local 532 AFL-CIO has
engaged in the unfair labor practices described above I
shall recommend that it cease and desist thereform and
that it take certain affirmative action designed to effectu
ate the purposes of the Act
[Recommended Order omitted from publication ]