IBEW, Local 11

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 374 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 11, AFL-CIO (Los Angeles
County Chapter of the National Electrical Con-
tractors Association) and John G. Kelley. Case
31-CB-3815
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 9, 1981, Administrative Law Judge Mi-
chael D. Stevenson issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent International Brotherhood of Electrical
Workers, Local Union No. 11, AFL-CIO, did not
violate Section 8(b)(l)(A) of the Act by threaten-
ing to bring legal action against John G. Kelley for
filing unfair labor practice charges against Re-
spondent. In so finding, the Administrative Law
Judge relied, inter alia, on Retail Clerks Union
Local 770, chartered by Retail Clerks International
Association (Hughes Markets, Inc. and Saba Prescrip-
tion Pharmacy).2 In Retail Clerks, the issue before
the Board was whether a respondent union violat-
ed the Act by seeking judicial enforcement of an
arbitration award. In that case the Board relied on
United Aircraft Corporation (Pratt and Whitney Divi-
sion),3 for the proposition that while the making of
a threat by an employer to bring legal action
against employees to restrain them in the exercise
of their Section 7 rights was unlawful, an actual
suit was not similarly unlawful. In the situation
where suit was actually brought, the Board rea-
soned that the rights of all persons to litigate their
claims in court should be accommodated, as long
as the resort to legal action was in good faith.
Looking to these Board Decisions for guidance,
the Administrative Law Judge found that whether
a threat to file a lawsuit was a violation of the Act
'The Administrative Law Judge found that Kelley had 30 years' expe-
rience as an electrician. This is incorrect. The record states that Kelley
had 20 years' experience as an electrician. We note and correct the Ad-
ministrative Law Judge's error.
2 218 NLRB 680 (1975).
3 192 NLRB 382 (1971).
258 NLRB No. 46
was dependent on the surrounding facts and cir-
cumstances of each case. Looking to the "facts and
circumstances" of the instant case, the Administra-
tive Law Judge found that the Union's threat to
sue Kelley was made in good faith and was not
calculated to restrain or coerce employees in the
exercise of rights under the Act. He, therefore, dis-
missed the complaint in its entirety. In dismissing
the complaint, the Administrative Law Judge re-
jected the argument of counsel for the General
Counsel that "a threat by either an employer or a
union to file suit against an employee for filing
unfair labor practices with the Board is inherently
coercive, and, therefore, that such threats violate
the Act." Counsel for the General Counsel excepts
to the Administrative Law Judge's Decision and
we find merit in the exceptions.
On February 23, 1980,4 Kelley wrote a letter to
Respondent and to IBEW Local 569 protesting Re-
spondent's refusal to permit him to sign its out-of-
work book. On February 28, Richard J. Davis, Jr.,
Respondent's attorney, responded to Kelley's letter
and advised Kelley that Local 11 would immedi-
ately pursue remedies against him for his "continu-
ing misuse of the legal processes of the National
Labor Relations Board." In a similar letter for
Local 569, Davis further advised Kelley that his
"continued misuses" of Board processes would
result in "legal action by my client against you."
During 1980, Kelley filed four or five unfair
labor practice charges against Respondent and
three or four charges against another IBEW local,
441.5 During 1974, 1979, and 1980, Kelley filed 15-
20 charges against Local 441, including the 3 or 4
charges filed in 1980. In the charges Kelley filed in
1974 with the Board, he alleged that Local 441 dis-
criminated against him because of his nonmember-
ship in the Union by not allowing him to sign the
Union's referral books. On October 30, 1975, the
Board issued its decision in Local Union No. 441,
International Brotherhood of Electrical Workers,
AFL-CIO, 6 in which it found that Local 441 had
discriminated against Kelley.
Based on charges filed by Kelley on March 12,
1980, the Regional Director for Region 21 issued a
complaint against IBEW Local 569 for failing and
refusing to allow Kelley to register under part of
its referral procedure because of Kelley's nonmem-
bership in the Union and his previsously filed and
processed unfair labor practice charges filed with
the Board against this local, and other IBEW
locals.' The complaint also alleges that Local 569
' All dates are 1980 unless otherwise indicated.
'The Administrative Law Judge refers to Local 411 in his Decision.
The local is actually Local 441. We note and correct his error.
6221 NLRB 214, enfd. 562 F.2d 55 (9th Cir. 1977).
'The complaint issued in Case 21-CB-7187.
374
IBEW, LOCAL I I
had "failed to properly represent Kelley for rea-
sons which [were] unfair, arbitrary, invidious and a
breach of the fiduciary duty" the Union owed to
the employees it represented.'
It is well established that the "making of a threat
by an employer [or a union] to resort to civil
courts as a tactic calculated to restrain employees
in the exercise of rights guaranteed by the Act" is
unlawful. 9 In Clyde Taylor, d/b/a Clyde Taylor
Company,'° the employer impliedly threatened to
file a libel suit against certain employees unless
they withdrew their unfair labor practice charges.
The Board found such a threat amounted to harass-
ment since it would "normally tend to intimidate
an individual contemplating filing a charge, from
doing so, or one who had filed a charge, to with-
draw it."" The Board further found that such a
threat operated to restrain employees in the exer-
cise of their right to file charges under the Act and
this was coercive and violative of Section 8(a)(1).
The Board has also found unlawful threats by a
union to sue employees for filing unfair labor prac-
tice charges with the Board. In United Association
of Journeymen & Apprentices of the Plumbing and
Pipefitting Industry, Local Union No. 81 (Morrison
Construction Company, Inc.),'2 following the filing
of unfair labor practice charges with the Board by
an employee, the union steward threatened the em-
ployee with a lawsuit seeking recovery of legal
fees and money for time lost by the union in han-
dling the case. The Board found the threat unlaw-
ful and stated, "It is well settled that threats de-
signed to restrain or coerce employees in the exer-
cise of rights guaranteed by Section 7 of the Act
constitute a violation of Section 8(b)(1)(A)."' 3
In the instant case, the Administrative Law
Judge found that the threat to sue Kelley was
made in good faith and was not calculated to re-
strain or coerce Kelley in the exercise of his Sec-
tion 7 rights. In so finding, the Administrative Law
Judge relied on several factors. First, the Adminis-
trative Law Judge looked to the number of charges
Kelley had filed and the fact that only a small per-
centage of these charges were found to have merit.
Second, the Administrative Law Judge noted that
despite attorney Davis' requests to the contrary,
Kelley continued to correspond directly with union
officials. Third, the Administrative Law Judge
relied on Kelley's admission that during a prior
NLRB investigation of charges he had filed, Kelley
' The record herein does not indicate the final disposition of this com-
plaint.
I United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB
382, 384 (1971), citing Clyde Taylor. supra.
' 127 NLRB 103 (1960).
" Id. at 108.
'2 237 NLRB 207 (1978).
1 Id. at 210.
seized and destroyed an affidavit. Based on the
conduct described, supra, the Administrative Law
Judge reasoned that "Respondent had a resonable
basis to believe that Kelley was misusing or at-
tempting to misuse the Board's processes and,
therefore, the threat to bring legal action was not
calculated to restrain or coerce Kelley in the exer-
cise of his rights to file charges with the Board."
We do not agree.
The right to file an unfair labor practice charge
with the Board is not dependent on whether it is
ultimately determined that the charge has merit
and the refusal of the Board to issue a complaint is
not a determination that this charge was filed in
bad faith. Therefore, the fact that Kelley filed
many charges and only a small percentage of these
charges resulted in the issuance of complaints does
not establish that Respondent had a "reasonable
basis" to believe that Kelley was misusing Board
processes. In the past, Kelley had filed charges
against IBEW locals for discrimination against him
and several of these charges were found to have
merit. It was not unreasonable, in light of Kelley's
past experience, for Kelley to believe that IBEW
locals were again discriminating against him be-
cause he was not a union member. His filing of
charges with the Board based on Respondent's re-
fusal to allow him to sign its out-of-work book
cannot be viewed as misuse of Board processes
merely because it added to the total number of
charges he had filed.
Nor does the fact that Kelley corresponded di-
rectly with union officials, rather than with attor-
ney Davis, warrant finding that Kelley misused
Board processes. Assuming, arguendo, that this
factor would have any significance under any cir-
cumstances, the record shows only two instances
prior to the filing of the charge in the instant case
when Kelley addressed his correspondence to
union officials. These letters were turned over to
attorney Davis for response. Again, there is noth-
ing here that evinces a misuse of Board processes.
Finally, although Kelley did admit to seizing and
destroying an affidavit in a prior Board proceeding,
conduct we do not condone, we fail to see how
this single incident debars him from resort to the
Board's processes or warrants a finding that this
intent is to misuse those processes.
In further support of his decision to dismiss the
complaint, the Administrative Law Judge relied on
a letter that Kelley sent to the appeals committee
of IBEW Local 659 on October 8, almost 8 months
after Respondent, through its attorney, threatened
Kelley with legal action for his filing of unfair
labor practice charges with the Board. In the
letter, Kelley stated that, if he were not allowed to
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make an appearance before the Union's appeals
committee, he would take "appropriate legal
action." The Administrative Law Judge found it
"outrageous" that Kelley would send such a letter
I month after the issuance of the complaint in the
instant case since the letter amounted to "virtually
the identical act" with which Kelley had charged
Respondent. The Administrative Law Judge found
that this letter corroborated Respondent's good-
faith defense. As stated supra, this letter was writ-
ten by Kelley almost 8 months after Respondent
threatened him with legal action for filing unfair
labor practice charges with the Board. We find
that this subsequent act by Kelley had no bearing
on the issue in the instant case; i.e., whether Re-
spondent violated the Act by threatening the
Charging Party with a lawsuit for filing and pursu-
ing unfair labor practice charges with the Board.
Accordingly, we attach no significance to Kelley's
letter of October 8.
In conclusion, we find that, by threatening
Kelley with legal action for filing and pursuing
unfair labor practice charges with the Board, Re-
spondent violated Section 8(b)(l)(A) of the Act.
CONCLUSIONS OF LAW
1. The Association and its employer-members are
employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Respondent, International Brotherhood of
Electrical Workers, Local Union No. 11, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening John G. Kelley with a lawsuit
for filing and pursuing unfair labor practice charges
with the Board, Respondent has engaged in unfair
labor practices within the meaning of Section
8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
International Brotherhood of Electrical Workers,
Local Union No. 11, AFL-CIO, Los Angeles,
California, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Threatening John G. Kelley or any other em-
ployee with a lawsuit for filing and pursuing unfair
labor practice charges with the Board.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its office and meeting halls copies of
the attached notice marked "Appendix."' 4 Copies
of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondent Union's representative, shall be posted
immediately upon receipt thereof, and be main-
tained and caused to be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent Union and its agents to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent Union has taken to
comply herewith.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten John G. Kelley or
any other employee with a lawsuit for filing
and pursuing unfair labor practice charges
with the National Labor Relations Board.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
National Labor Relations Act.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL
UNION No. 11, AFL-CIO
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me in Los Angeles, Califor-
nia, on February 19, 1981,1 pursuant to a complaint
issued by the Regional Director for Region 31 of the Na-
tional Labor Relations Board on September 11, 1980, and
which is based on a charge filed by John G. Kelley
'All dates herein refer to 1980 unless otherwise indicated.
376
IBEW, LOCAL II
(herein sometimes called the Charging Party) on July 14.
The complaint alleges that International Brotherhood of
Electrical Workers, Local Union No. 11, AFL-CIO
(herein called Respondent), has engaged in certain viola-
tions of Section 8(b)(1)(A) of the National Labor Rela-
tions Act, as amended (herein called the Act).
Principal Issue
Whether Respondent violated the Act by threatening
the Charging Party with a lawsuit for filing and pursuing
unfair labor practice charges with the Board.2
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.3
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Respondent admits that at all times material the Los
Angeles County Chapter of the National Electrical Con-
tractors Association is a multiemployer collective-bar-
gaining association consisting of electrical contractors
based in Los Angeles, California. It also admits that,
during the past calendar year, the association's members,
collectively and in the aggregate, purchased goods and
materials valued in excess of $50,000 from sellers or sup-
pliers located outside the State of California, or from
sellers or suppliers located within the State of California,
which sellers or suppliers receive such goods in substan-
tially the same form directly from outside the State of
California. Accordingly, it admits, and I find, that the as-
sociation is an employer engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Charging Party John G. Kelley is an electrician with
30 years' experience. He has never been a member of Re-
spondent, and, during the period of January through
March, was not a member of any other IBEW local.
During 1980, Kelley filed about four-five unfair labor
practice charges with the Board against Respondent.
During the same period, Kelley filed three-four such
charges against Local 411, IBEW, located in Orange
I have framed the central issue in the words of par. 6 of the com-
plaint. However, as stated, the issue is not entirely accurate and I will
refine it below, based on the evidence of record.
Briefs in this case were due on March 26, 1981. The Charging Party
stated that he intended to file a brief He was told that. if he changed his
mind, he should notify me. However, I never received a brief from the
Charging Party nor any explanation for his failure to submit one.
County, California. For the period 1974 and 1979-80,
Kelley filed a total of 15-20 unfair labor practice charges
against Local 411, including the 3-4 referred to above.
Kelley's dispute with various locals of the IBEW ex-
tended to a third local, Local 569, located in San Diego,
California. His disagreement with Local 569, as with Re-
spondent, arose out of his unsuccessful efforts to sign the
Unions' out-of-work book.4
On February 23, Kelley sent a letter to Earl Higgins,
business manager for Respondent, protesting the Union's
refusal to permit him to sign their out-of-work book. The
letter reads as follows:
February 23, 1980
Cert. Mail #8332101
Mr. Earl Higgins
Business Manager
Local Union No. 11 IBEW
2316 West Seventh Street
Los Angeles, CA 90057
Dear Sir:
This letter will confirm our telephone conversation
of Monday, February 18, 1980. In that conversation,
I explained that I could not, in good faith, sign the
following statement:
RULES FOR WORKMEN
By signing Out-Of-Work book in Unit #-, I
fully understand I will not be eligible to sign the
Out-Of-Work book in any other Unit of Local
Union No. 11 IBEW, Los Angeles County, with-
out first having my name removed from the book
in this Unit. Failure to comply may cause my
name to be removed from all Out-Of-Work books
upon decision of the Appeals Committee.
I do NOT fully understand that my common law
right to seek employment can be so restricted and
the above referenced statement is false as far as I
am concerned. I will not sign a false statement.
I have been denied permission to register on the
Out-Of-Work books at Unit #2, Local Union No.
II IBEW, because of my refusal to sign this state-
ment. In our conversation, you stated that I would
not be allowed to register, unless I signed the state-
ment.
I request that you waive your requirement that I
sign this disputed statement, and cause my name to
be placed on the highest priority Out-Of-Work
book, for which I am qualified, in Unit #2.
Thank you.
Yours truly,
/s/ John Kelley
John Kelley
[G.C. Exh. 2.]
'The merits of Kelley's disputes with any of the three locals were
never litigated, and I make no finding on them
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently, another similar letter was sent by Kelley to
Local 569.
Both locals, as well as Local 441, are represented by
attorney Richard J. Davis, Jr., who represented Re-
spondent at the hearing. In response to the Kelley letters
referred to above, Attorney Davis prepared and sent to
Kelley two letters, both dated February 28. These let-
ters, while similar, are not identical. They read as fol-
lows:
February 28, 1980
Mr. John Kelley
3101 Loren Lane
Costa Mesa, CA 92626
Re: IBEW Local Union 11
Dear Mr. Kelley:
Please consider this letter the response of IBEW
Local 11, our client, to your letter of February 23,
1980. Again may I request that you direct any fur-
ther communications you have regarding these mat-
ters and your pending National Labor Relations
Board charges to my attention.
Your letter of February 23, 1980 does not con-
firm any telephone conversation and its contents are
hereby expressly rejected. Once again, you are en-
gaged in a clear and improper effort to misuse the
processes of the National Labor Relations Board.
The documents which you question, which repre-
sents a portion of the working rules under which
our dispatch system operates, apply equally to all
employee workmen. If you do not concur with
those rules, you are not eligible to participate. As to
your gibberish concerning your "common law
rights", no one is in any way affecting your
common law rights: you have them from the
bowels of the earth to the edge of the universe ac-
cording to the English House of Commons. You
simply, however, cannot make use of the Local 11
hiring hall.
Please be advised that my client has directed me
to pursue immediately remedies against you for
your continuing misuse of the legal processes of the
National Labor Relations Board.
Respectfully,
BRUNDAGE, DAVIS, FROMMER&JESINGER
/s/ Richard J. Davis, Jr.
Richard J. Davis, Jr.
RJD/slm
cc: Earl Higgins
NLRB 31
[G.C. Exh. No. 3.]
February 28, 1980
Mr. John Kelley
3101 Loren Lane
Costa Mesa, CA 92626
Re: IBEW Local 569
Dear Sir:
Please consider this letter the response of my
client, IBEW Local Union 569 to your letter dated
February 22, 1980.
I have previously advised you, in writing, of
your status with respect to dispatch from Local
Union No. 569. That letter, to which you have
never responded, continues to state precisely and
without any equivocation or ambiguity, your posi-
tion.
I would again request that you direct your
lengthy letters regarding these unmeritorious and
harassing charges of yours only to my attention. I
must advise you that continued misuse of the Feder-
al National Labor Relations Board processes will
result in legal action by my client against you.
BRUNDAGE, DAVIS, FROMMER &JESINGER
/s/ Richard J. Davis, Jr.
Richard J. Davis, Jr.
RJS/slm
cc: F. R. Underhill
National Labor Relations Board
Region 31
[G.C. Exh. 4.]
At the hearing, Attorney Davis stipulated that both of
his letters were authentic, that they were sent by him via
U.S. mails to Kelley on the dates contained on the let-
ters, and that as of February 28 Davis was an attorney
representing Respondent. Davis did not stipulate that Re-
spondent had expressly authorized the preparation and
transmission of the two letters.
B. Analysis and Conclusions
At footnote 2, above, I indicate some disagreement
with the issue framed in the words of the complaint. Per-
haps better stated, the issue is, "Whether Respondent
violated the Act by threatening Charging Party with
legal action for [perceived] misuse of the Board's proc-
esses." Before turning to the merits of the controversy as
reflected in the revised issue, I note counsel's refusal to
agree that the sending of the letter in issue was expressly
authorized by Respondent. This side issue is undeserving
of the attention paid to it by the General Counsel. The
admissions of an attorney in the management of litigation
are admissible against the client. 5 In the context of this
case, I find that a threat to institute litigation is within
the meaning of "in the management of litigation." Ac-
cordingly, I find that Respondent is bound by the state-
ments contained in the letters sent by Davis. The ques-
tion of whether the statements in the letter violated the
Act is more difficult to determine.
In the very recent case of National Association of
Broadcast Employees and Technicians, AFL-CIO, CLC,
255 NLRB No. 57 (1981), the Board stated that it does
not exercise its authority under the Act in a manner that
I Steve Aloi Ford, Inc., 179 NLRB 229 (1969), and the cases cited in fn.
2 of the Board's opinion.
378
IBEW, LOCAL II
needlessly restricts a party's access to judicial remedies.
One of the two cases cited by the Board in footnote 10
of its decision in support of this general policy is Clyde
Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103,
109 (1960), a case which both parties to the instant case
claim supports their position. With the Board's general
policy and the Clyde Taylor case in mind, I turn to the
specific issue at hand.
The General Counsel contends (br., p. 7) that the
Board has formulated virtually a per se rule that "a threat
by either an employer or a union to file suit against an
employee for filing unfair labor practice charges with the
Board is inherently coercive, and that, therefore, such
threats violate the Act." To be sure, there is authority to
support the General Counsel's assertion. For example, in
Retail Clerks Union Local 770, Chartered by Retail Clerks
Interntional Association, AFL-CIO (Hughes Markets, Inc.,
and Saba Prescription Pharmacy), 218 NLRB 680 (1975),
the Board refused to find that a union had violated the
Act by seeking judicial enforcement of an arbitration
award. Quoting from an earlier case, United Aircraft Cor-
poration (Pratt & Whitney Division), 192 NLRB 382, 384
(1971), the Board stated:
In the Clyde Taylor case, the Board held that, while
the "making of a threat by an employer to resort to
the civil courts as a tactic calculated to restrain em-
ployees in the exercise of rights guaranteed by the
Act," was a violation of Section 8(a)(l), an actual
suit was not similarly unlawful. 6
The Board further found in Retail Clerks that the em-
ployer's resorting to the courts was done in good faith to
enforce a colorable contract right and was not the kind
of tactic calculated to restrain employees or employers in
the exercise of rights guaranteed by the Act.
I find that the above analysis for evaluating the filing
of a lawsuit must apply to the threat to file a lawsuit as
well. In short, whether a threat to file a lawsuit is a vio-
lation of the Act depends on the surrounding facts and
circumstances of each case, and there is no per se rule.7
When considering issues involving either the filing of
lawsuits or the threats to file lawsuits, the Board speaks
in terms of flat rules: the former is permissible and the
latter is not. However, in actual practice, the Board has
found exceptions to both rules when the facts warrant.
For example, in David J. Bergman, as Representative of
the Employees of Sierra Glass Service, Inc. v. N.L.R.B.,
577 F.2d 100 (9th Cir. 1978), the court affirmed the
Board's position dismissing a complaint against a union
for filing a lawsuit against an employer. Yet in reaching
this decision, the court acknowledged several cases
where the Board had deviated from the seemingly abso-
lute dictates of Clyde Taylor and found that filing suit is
an unfair labor practice.' This does not mean that the
Board is inconsistent, it means that each case depends on
its own facts. Similarly, this approach must apply when
evaluating a threat to file a lawsuit as well. For example,
' See also S. E. Nichols Marcy Corp.. 229 NLRB 75 (1977), and cases
cited therein at fn. 2.
7 Cf. Associated General Contractors of North Dakota v. NL.R.B., 637
F.2d 556 (8th Cir. 1980). and cases cited therein.
'See list of cases cited in Bergman at 104.
in United Aircraft Corporation (Pratt & Whitney Division),
supra, 192 NLRB at 384, the Board found that respond-
ent's threat to file a lawsuit was not the kind of "tactic
calculated to restrain employees in the exercise of rights
guaranteed by the Act," as envisaged by Clyde Taylor.
Respondent in United Aircraft believed that it had good
grounds for a civil damage suit against the charging
party which it was willing to forgo if the charging party
withdrew their unfair labor practice charges. The Board
went on to find good faith by respondent and no intent
to harass.
In the instant case, I find not only that the threat to
sue Kelley was made in good faith, but that, in addition,
it was not calculated to restrain or coerce employees in
the exercise of rights under the Act. As a basis for these
findings, I return briefly to the evidence of record.
During 1979-80, Kelley has filed several unfair labor
practice charges against Respondent and two sister locals
in the same general area. Prior to the instant charge, 2
out of approximately 25 filed against the 3 locals were
found by the Board to have merit.9 (G.C. Exhs. 5 and 6.)
(Apparently of the four to five filed against Respondent,
only the instant charge was found to have merit.) During
these events, Kelley repeatedly corresponded with offi-
cials of the locals despite repeated requests by Attorney
Davis for Kelley to direct all correspondence to him.
In evaluating the motivation of Respondent, I must
also consider other conduct of Kelley which supports
my conclusions above. For example, during cross-exami-
nation at the hearing, Kelley admitted that, during a
Board investigation of charges he had made against Re-
spondent or a sister local, he physically seized and de-
stroyed an affidavit, apparently his own, being prepared
by a Board agent. " (Resp. br., pp. 42-43.) Although the
General Counsel speculates in her brief as to the cause of
Kelley's behavior, no evidence was offered to explain
this seemingly bizarre conduct.
In sum, I find that Respondent had a reasonable basis
to believe that Kelley was misusing or attempting to
misuse the Board's processes and, therefore, the threat to
bring legal action was not calculated to restrain or
coerce Kelley in the exercise of his rights to file charges
with the Board. Put differently, I do not find that the
threat to take legal action against Kelley represented an
unlawful objective sought by the Union.tt Thus, the ob-
It is true that as a general rule the right to file unfair labor practice
charges with the Board does not depend on whether the charges have
merit. But in this case, I must look to the results of Kelley's charges for
the limited purpose of evaluating the alleged good-faith motivation of Re-
spondent.
" Kelley's dispute with the Board flared up anew at the hearing, when
he requested permission to intervene as the charging party, saying that l
do not consider that counsel for General Counsel represents me in this
case." After recess. Kelley withdrew his request on condition that he be
permitted to file a brief. (Resp. hr. pp. 59-61.) Despite such treatment.
the General Counsel presents in her brief a commendable, lengthy, and
highly speculative defense of Kelley's conduct (br., pp. 9-11) which I
find to be unavailing.
" This statement of law is taken from Television Wisconsin. et al., 224
NLRB 722 (1976). in which the Board seemed to diminish the element of
good faith on which earlier cases had turned. However, in .4ssociated
General Contractors of ,Vorth Dakota, supra, 637 F.2d 556 (8th Cir. 1980),
the court rejected the notion that the Board had abolished the require-
Continued
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jective was not to curb the filing of charges with the
Board, but to prevent the misuse of the Board's process-
es. However put, I find a reasonable basis for Davis to
make the threat in issue: Kelley's filing of multiple
charges, an overwhelming percent of which were found
not to have merit; refusal to cooperate with Respond-
ent's counsel and agents of the Board; and a final factor
which up to now has not been mentioned.
The charge in this case was filed by Kelley on July 14
and the complaint issued September 11. On October 8,
Kelley prepared the following letter and sent it to Local
569, IBEW:
October 8, 1980
Cert. Mail #8330793
LOCAL 569-N.E.C.A. APPEALS COMMITTEE
215 W. Washington Street
San Diego, CA 92103
Gentlemen:
On August 30, 1980, I mailed a letter to the Appeals
Committee in which I repeated my request to
appear before the Committee for the purpose of
presenting complaints. This letter was delivered to
the Washignton [sic] Street address on September 2,
1980 and was recieved [sic] by Janin Lowe.
Inasmuch as I have recieved [sic] no reply from the
Committee since my last letter, I am assuming that
the Committee does not intend to allow me to make
an appearance and argue my case before the Com-
mittee. If, within ten (10) days of this mailing, I
have not received a reply from the Committee indi-
cating that I will be allowed an appearance before
the Committee, I will take appropriate legal action
which will include, but shall not be limited to, the
filing of Unfair Labor Practice charges with the
NLRB.
Yours truly,
/s/ John G. Kelley
John G. Kelley
[Resp. Exh. 1]
That 3 months after he had filed his latest charge and 1
month after a complaint had actually issued, Kelly
ment of examining the union or employer's good faith in the filing of a
lawsuit (or the threat to file a lawsuit). In fact, in affirming the Board,
the court held that it is impossible to determine an "unlawful objective"
without inquiry as to whether the act in issue is calculated to restrain em-
ployees in the exercise of their rights guaranteed by the Act.
should commit virtually the identical act is outrageous.
The General Counsel claims that the letter is "legally ir-
relevant .... and indeed, may well have been patterned
after Davis' own language in General Counsel Exhibit 3
and 4." (Br., p. 10.) I am far less understanding of
Kelly's act. I find that it corroborates Respondent's de-
fense of good faith as it lends credence to the claim that
Kelley was misusing the Board's processes.
In conclusion, I turn briefly to a case relied on by the
General Counsel, Power Systems, Inc., 239 NLRB 445
(1978), enforcement denied 601 F.2d 936 (7th Cir.
1979). '3 That Power Systems was not enforced is of little
moment since I am bound by Board law. However, a
close reading of the Board decision indicates to me that
this case is factually distinguishable from the present
case. For example, while the charging party in Power
Systems had filed 46 charges over 11 years, most of
which were found to lack merit, he filed only I against
respondent. In addition, there was no evidence that the
charging party failed to cooperate with the Board. Next,
respondent attempted by court injunction to prevent the
charging party from filing any charges against it with a
Federal or state agency. Needless to say, the facts in this
case are substantially different and Power Systems does
not apply. t4 Accordingly, I will recommend that this
case be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Association and its employer-members are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent International Brotherhood of Electrical
Workers, Local Union No. 11, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that the Union vio-
lated the Act as alleged in the complaint.
[Recommended Order omitted from publication.]
" In weighing the probative value of the Kelley letter, I limit its effect
to that indicated above. The letter does not constitute an absolute defense
because "the clean hands" doctrine of equity does not operate against a
charging party since proceedings such as this are not for the vindication
of private rights but are brought in the public interest and to effectuate
the statutory policy." International Brotherhood of Teamsters. Chauffeurs,
Warehousemen Helpers of America. Local 294 (Island Dock Lumber.
Inc.), 145 NLRB 484, 492 (1963). fn. 9, and cases cited therein.
'3lnadvertently, the General Counsel represents that Power Systems was
"enforced." (Br. p. 8.)
'4 Also, compare the facts of the instant case to The United Credit
Bureau ofAmerica v. N.L.R.B., 643 F.2d 1017 (4th Cir. 1981).
380