New England Regional Council

National Labor Relations Board - Administrative Judge Opinions

Jul 30, 2008

01-CC-002712 (N.L.R.B. Jul. 30, 2008)

JD(NY)–25–08
Salem, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
NEW ENGLAND REGIONAL
COUNCIL OF CARPENTERS, a/w
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO
and CASE 1-CC-2712
VILLAGE CONSTRUCTION
COMPANY INC.
Elizabeth Tafe, Esq., Counsel for the
General Counsel
Christopher N. Souris, Esq., Counsel for the
Union
Richard D. Wayne, Esq., Counsel for the
Charging Party
SUPPLEMENTAL DECISION
Statement of the Case
I originally issued a Decision in this case on July 15, 2004. This involved the application
of the Supreme Court’s decision in BE & K Construction Co., 536 U.S. 516, 532 (2002) to the
allegation that a Union violated Section 8(b)(4)(ii)(B) by engaging in “coercive” conduct for a
secondary object. I concluded that the Union’s expression of an opinion in a public forum set up
by the Massachusetts Department of Environmental Protection (DEP), in determining whether
that agency would grant an amendment to a license, could not be construed as a “threat,
restraint or coercion” as those terms are used in subsection (ii) of 8(b)(4).
The Board, at 351 NLRB No. 38, (2007), remanded this case to consider the matter in
light of the Board’s decision in BE & K, 351 NLRB No. 29 (2007). The Board stated:
The judge is directed to issue a supplemental decision addressing the question of
whether the analysis we adopted in BE & K is applicable to the Union’s filing of
comments and an appeal with the DEP and, if so, whether the comments and
appeal were reasonably based under the facts and circumstances of this case.
On December 12, 2007, I requested the parties to advice me as to how to proceed. In
response, the General Counsel set forth her position that in light of the Board’s decision in BE &
K, she could not sustain the burden to show that the Respondent had violated the Act.
(Obviously, the Respondent agreed). On the other hand, the Charging Party asserted that a
violation had been committed, even under the new standards.
On January 3, 2008, having reviewed the respective position statements of the parties, I
determined that a hearing would be required to resolve certain matters and that because the
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case had been opened and litigated, the General Counsel could not unilaterally withdraw the
Complaint.
On March 28, 2008, I conducted a conference call to determine what if any issues would
be litigated at a hearing. I was advised by the Charging Party that it desired to adduce evidence
of a new comment filed by the Union and that it wanted to amend the Complaint to allege this
new transaction. The General Counsel and the Respondent advised that they had no additional
evidence unless of course, I agreed with the Charging Party. I informed the parties that I did not
believe that the Charging Party had the power to amend the Complaint. Nevertheless I
permitted any party seeking to offer new evidence, to make motions with accompanying offers
of proof. At the same time, I postponed the hearing pending any submissions.
On April 24, 2008, the Charging Party filed, (late), a Motion to amend the Complaint. It
sought to add an additional allegation to the effect that on or about March 7, 2008, the Union,
for a secondary object, filed with the Massachusetts DEP, frivolous and sham comments
objecting to another amendment to the Salem Harbor Municipal Plan that had been approved
on February 12, 2008. This Motion was opposed by both the Respondent and the General
Counsel. The latter asserted that if the Charging Party wanted to allege new transactions as
being violative of Section 8(b)(4)(B), it was required to file a new charge that would be
investigated and evaluated by the Regional office. I agreed and on May 7, 2008, denied the
Charging Party’s Motion to Amend the Complaint. The General Counsel is the only party who
has the right to amend a Complaint. GPS Terminal Services, 333 NLRB 968, 969-970 (2002)
and Kaumagraph Corp., 313 NLRB 624 (1993).
Having determined that no further evidence was required, I set a time for filing briefs.
Having considered the briefs filed, I hereby make the following
FINDINGS AND CONCLUSIONS
The first thing to remember is that in Massachusetts, an owner of tidal property does not
have the absolute right to build on it. To do so, he or she must obtain a license from the
Massachusetts Department of Environmental Protection, (DEP). That agency is given the
authority to grant or deny permission to build, depending on a variety of factors including
possible harm to the waterfront or the degree to which public access to the waterway is limited
or impeded. Thus, the initial legally required step is for the owner to apply for a license that will
permit construction. At that point, the DEP issues a notice whereby any group is invited to
“comment” on the license application. In this regard, the evidence is that such persons may
comment on the proposed license and express any opinion, regardless of how well or ill
informed it may be.
Unlike a legal proceeding where a plaintiff who files a frivolous action may incur
expenses under Rule 11, (in addition to having his lawsuit dismissed), persons making a
“comment” in this licensing procedure are held to no standards at all and often make statements
which are merely unfounded opinions. In this respect, the licensing procedure that invites public
comment without regard to the legal concept of “standing” is more like a town meeting than the
prosecution of a civil lawsuit which has a set of formally defined rules and procedures, usually
requiring the expertise of people who are called lawyers.
In light of the above, I cannot imagine how imposing a Board enforced Order limiting the
right of members of the public to express their opinions at a public forum about a public matter,
would not be contrary to the Constitution’s First Amendment’s right of free speech and right to
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petition. Cf. Edward J. DeBartolo v. Florida Gulf Coast Building Trade Council, 485 U.S. 568,
580 (1988).
In the original decision, I opined that the only aspect of the DEP procedure that could
conceivably be analogous to a lawsuit, (and therefore arguably coercive), would be the situation
where an appeal was taken after the DEP decided to grant or amend a license. The reason is
that by taking an appeal, the matter would then be elevated to a new level as it would be placed
before an Administrative Law Judge. While I do not know the exact nature of such a
proceeding, or how long it would take, it seemed to me that once this part of the procedure is
invoked, then the parties would be propelled into a more formal and judicial type of procedure.
The Union’s representative, (Falvey), sent a letter to the DEP on January 7, 2004
stating; “I hereby appeal the written determination to approve the above referenced application,
which I believe violates 310 CMR 9.00 for the reasons that are contained in the comments that I
submitted previously….” He followed this up on January 26, with another letter which had a
more detailed expression of his arguments.
Notwithstanding Falvey’s use of the word “appeal” in his letters, the fact of the matter is
that neither the letter of January 7 nor the letter of January 26 can be construed as an “appeal”
within the DEP’s definition because he did not request an adjudicatory hearing. In fact, on
February 13 and 20, 2004, Falvey expressly notified the DEP that he was not seeking an
adjudicatory hearing. Thus, as there was no possibility of having an adjudicatory hearing, the
appeal process was never really invoked and therefore any analogy to a lawsuit type of
procedure cannot be made.
In my initial opinion I expressed, rather pointedly, the conclusion that Falvey’s comments
to the DEP were “patently ridiculous.” But on reflection, I think that this opinion was over stated.
In substance, Falvey’s main point was that by creating new permanent residences in a portion
of the hotel, (instead of serving only seasonal transients), this could cause greater impediments
to waterfront access by other local residents. (I assume that he is talking about the need to
provide additional and all year round parking spaces for the new residents at or near the
waterfront.)
The General Counsel, from the outset of this litigation, has never asserted that the
Respondent’s position before the DEP was baseless. In her current brief, she states that the
General Counsel has;
[C]onsistently taken the position that the Union’s comments and appeal could
not be shown to be baseless, given the broad scope of the state
environmental agency’s discretion in licensing matters. Thus, regardless of
Respondent’s subjective state of mind or its intent, the General Counsel
cannot show the filing of the comments and the subsequent appeal was
baseless in an objective sense. On the facts of this case, it cannot be shown
that “no reasonable litigant” – here no reasonable 10 citizens of
Massachusetts –could [not] have expected success on the merits. As
Respondents environmental comments and appeal cannot be shown to be
objectively baseless, they cannot constitute an unfair labor practice,
regardless of motive, after the Board’s decision in BE & K.
I am not familiar with the geography or congestion of the harbor where this construction
was taking place. It may be that the pre-construction state of affairs was that there was limited
access to the water because of the already existing usage by residents and tourists. As such, it
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is difficult to determine when a tipping point is reached where congestion turns into gridlock. In
any event, I think that it was a bit presumptuous of me to assert that Falvey’s comments were
completely without a rational basis. Maybe he was wrong. But I don’t think that I can say that
his assertions were without any basis at all.
For all of the reasons described above, I reaffirm my original decision and recommend
that the Complaint be dismissed. 1
Dated at Washington D.C., July 30, 2008.
_____________________
Raymond P. Green
Administrative Law Judge

1 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.