Regional Construction Corp.

National Labor Relations Board - Board Decisions

Feb 14, 2001

333 N.L.R.B. 313 (N.L.R.B. 2001)

REGIONAL CONSTRUCTION CORP. 313
Regional Construction Corporation and Laborers’
Local Union No. 472, a/w Laborers’ Interna-
tional Union of North America, AFL–CIO. Case
22–CA–21968
February 14, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On April 23, 1998, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel, the Respondent, and the Charging Party
filed exceptions and supporting briefs, and the Respon-
dent and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated 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,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

William E. Milks, Esq. and Jeffrey P. Gardner, Esq., for the
General Counsel.
Gerald L. Dorf, Esq. and Leslie P. Katenbach, Esq., for the
Respondent.

1 The judge found that the complaint is not barred by Sec. 10(b) of
the Act, citing Embassy Suites Resort, 309 NLRB 1313 (1992). In that
case, the Board found that specific complaint allegations could be sup-
ported by boilerplate language typed into the charge by a charging
party. The judge also noted that the D.C. Circuit Court of Appeals
disagreed with the Board. Embassy Suites Resort v. NLRB, 32 F.3d
588 (1994). We find Embassy Suites Resort distinguishable. This case
involves more than boilerplate language. Rather, the charge referred to
the April 2, 1997 date on which the Respondent filed its motion for an
amended order in state court. Accordingly, the Charging Party supplied
specificity as to the action which it was alleging to be unlawful. More-
over, the Respondent’s May 15, 1997 letter to the Board, in response to
the Charging Party’s charge, reveals that the Respondent knew pre-
cisely what the Charging Party had alleged in its charge. The Respon-
dent provided a history of the picketing dispute between it and the
Charging Party and noted that the Charging Party was contending that
the Respondent’s motion for an amended order curtailed the Charging
Party’s right to picket. Accordingly, the charge, as framed and under-
stood, apprised the Region and Respondent of the conduct being al-
leged as unlawful.
2 The judge found that the Respondent’s April 2 motion in the State
court proceeding did not violate the Act. We agree for the reasons cited
by the judge. However, we find it unnecessary to pass on the judge’s
extended discussion, in fn. 7 of his decision, of Loehmann’s Plaza, 305
NLRB 663 (1991).
The General Counsel does not allege that the Respondent’s motion
became unlawful on June 27, the date on which the court dismissed the
entire lawsuit.
James R. Zazzalli and Edward H. O’Hare, Esq., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in Newark, New Jersey, on January 26, 1998.
The charge in this case was filed by the Union on April 8 and
the first amended charge was filed on October 15, 1997. The
complaint was issued on June 25, 1997, and amended at the
hearing. The issue here is a variant of the kind of issue de-
scribed in Bill Johnson’s Restaurant v. NLRB 461 U.S. 731
(1983).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent (Regional), is a New York based contractor
in the construction industry. Annually, it performs services
valued in excess of $50,000 in States other than the State in
which it is located. I find that it is an employer engaged in
interstate commerce within the meaning of Section 2(2), (6),
and (7) of the Act.1 I also find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Regional is a general contractor in the construction industry.
In the present case it was engaged in the construction of a
350,000-square-foot shopping center located in Pohatcong,
New Jersey. The site in question is located at the intersection
of Routes 22 and 519.
Local 472 began picketing at the construction site in Decem-
ber 1996. Regional alleges that the Union engaged in conduct
which blocked ingress and egress to construction site entrances
and exits and also engaged in other tortious conduct at the site.
On December 9, 1996, Regional filed a complaint against the
Union in Superior Court of New Jersey.
On December 13, 1996, Judge Wilfred P. Diana issued a De-
cision and Order stating inter alia;

1. That the Union blocked ingress and egress to prop-
erty thereby causing a public nuisance on Routes 22 and
519; and
2. That the Union engaged in mass picketing.
3. That the foregoing actions by the Union prevented
plaintiffs from their right to ingress and egress and their
ability to perform construction and related activities in ac-
cordance with their contractual commitments.

Based on the these findings the court issued the following
order:
1 In its brief, the Respondent contends that because the instant matter
arose in the context of the Company performing road improvement
work required by the State of New Jersey, it should be considered an
instrumentality of a governmental agency and therefore not an em-
ployer within the meaning of the Act. This argument has no merit and
is rejected. Management Training Corp., 317 NLRB 1355 (1995).
333 NLRB No. 42
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314

1. Defendants may picket at the Pohatcong Plaza con-
struction site which is located at the intersection of County
Route 519 and State Highway 22, Township of Pohatcong,
Warren County, New Jersey, only if they comply with the
limitations and provisions of this Order;
2. The Plaintiffs shall maintain five entrances and exit
gateways to the property, as marked on the attached maps.
The Plaintiff shall instruct its employees, material suppli-
ers, delivery persons, and subcontractors that they shall
only utilize these gates. The Plaintiff, its employees, ma-
terial suppliers, and delivery persons shall not use any en-
trance or exit gate which abuts the residential area to the
south of the property;
3. Defendant Local 472 shall be permitted a maximum
of six pickets at each gateway. The pickets shall be di-
rected to walk at a reasonable speed and at a reasonable
distance, and shall not block ingress and egress to the
aforementioned construction site. Pickets shall yield to all
traffic approaching and departing the construction site, and
shall readily form a pathway of appropriate size through
the picket line in order to permit such traffic to pass freely
and unhindered through the picket line;

(a) Pickets shall be prohibited from blocking the
free flow of traffic on Route 22 and Route 519;
(b) The pickets shall not affix any sign to Plain-
tiff’s property or place any object on Plaintiff’s prop-
erty, including but not limited to an inflatable rat;

4. The Parties shall direct their members or employees
and all other persons or entities acting in concert, combi-
nation or participation with them or on their behalf to obey
this Order;
5. The Township of Pohatcong Police Department, the
Sheriff of Warren County, the New Jersey State Police and
any other local police department or law enforcement
agency having jurisdiction over the parties shall enforce
this Order without further order from this court;
6. Defendant Local 472 has, on the record, waived its
right to any hearing on the issuance of a preliminary in-
junction; and
7. The complaint in this case is dismissed as against
Local 825.

Thereafter, on December 19, 1996, the Union filed an appli-
cation with the court seeking to hold Regional in contempt of
the Order apparently based on its assertion that Regional was
utilizing a gate at the site that was reserved for another em-
ployer. It seems that a hearing on this contention was held on
December 20, 1996, and the Union’s application was denied.
On January 22, 1997, the court issued a supplemental order.
This was the result of negotiations between counsel for the
Union and the Employer and was on consent. The order states
inter alia:

1. The pickets shall conduct themselves in a peaceful,
orderly and non-violent manner at all times.
2. The pickets shall not throw objects at vehicles or
individuals, including but not limited to bottles, rocks, or
ball bearings.
3. The pickets shall not throw or place objects at or
around the construction site including by not limited to
metal prongs.
4. The pickets shall not bring any weapons to the con-
struction site. The pickets shall not discharge or utilize
any weapons at the construction site.
5. The pickets shall not use obscene or vituperative
language on the picket line.
6. The parties shall direct their members or employ-
ees and all other persons or entitles acting in concert,
combination or participation with them or on their behalf
to obey this Supplement Order.

With respect to the above, it is noted that the General Coun-
sel does not contend that the Respondent violated the Act by
filing and pursing the lawsuit described above which, on the
allegations contained therein, was not preempted by the Na-
tional Labor Relations Act. Automobile Workers v. Russell, 356
U.S. 634 (1958); and Youngdahl v. Rainfair, 355 U.S. 131
(1957). Nor does he allege that there was anything improper
or inappropriate in the orders that were entered by Judge Diana
which were within the jurisdiction of that court under the
State’s police powers. I also note that the orders issued by
Judge Diana were entered without there having been a full
hearing on the underlying facts and I make no findings or con-
clusions with respect to any allegations or counterallegations
made by each party in the underlying case.
In negotiating the original and supplemental orders, it is ob-
vious that counsel for the Union and the Employer, were cogni-
zant of the Board’s reserve gate doctrine and its application to
construction sites. See for example Building & Construction
Trades Council (Markwell & Hartz,) 155 NLRB 319 (1965),
enfd. 387 F.2d 79 (5th Cir. 1967). Thus, the orders not only
dealt with the questions of alleged violence and blockages, but
also set up a system of reserved gates which sought to accom-
modate the Union’s right to picket at or near the primary em-
ployer with whom it had a dispute and refrain from picketing at
gates reserved for secondary employers. Therefore, the negoti-
ated orders looked beyond the immediate alleged facts and
sought to regulate the Union’s conduct so that it would be in
conformance with the provisions of Section 8(b)(4)(B) of the
National Labor Relations Act which defines and precludes
secondary boycotts. In this sense, the parties went beyond the
scope of the existing case and entered a prophylactic order to
address a problem which was not really before the court. Pur-
suant to these orders, the Employer set up five entrances to the
construction site and the parties agreed as to which the Union
would be picket and at which there would be no picketing.
This is where the matter stood until April 2, 1997, when Re-
gional filed a motion with the court to amend the foregoing
orders.
Commencing in April 1997, Regional was required to begin
to make certain road improvements to Routes 22 and 519.
These road repairs apparently were a condition of obtaining
permission to build the shopping center. Among other things,
the work involved widening the roads and berms. In any event,
this was work that was to be done off the construction site and
was to be done in stages over a limited period of time. As the
REGIONAL CONSTRUCTION CORP. 315
road work was going to require, at least temporarily, the closing
of some of the existing construction site entrances, and the
making of new entrances, Regional’s counsel thought it prudent
to go back to the court to get an amended order so that it would
not be accused of invalidating the reserve gate system that had
been set up by the prior orders.
In early March 1997, Regional’s attorney, Gerald L. Dorf,
sent a letter to Union Counsel James R. Zazzalli, which in-
formed him of the upcoming plans for road repair and notified
union counsel of Regional’s intention to seek a modification of
the previous court orders. Counsel enclosed a copy of a pro-
posed order for review and comment.
By letter dated March 10, 1997, union counsel responded
and set forth his opinion and objections to various provisions of
the proposed amended order. Among other things, Zazzalli
stated;

I understand that the employer wishes to close the pre-
sent gates, as they may be temporarily dormant and/or ob-
solete, and that it intends to install new gates . However,
if any other gates are to be established, or, as I gather from
your proposal, perhaps closed and re-established, Local
472 has the right to picket those locations. As currently
drafted, the Amended Order appears to impermissibly re-
strict or entirely prohibit appropriate picketing. At the
same time, it gives the employer carte blanche to enter and
exit from any location on the property.
Moreover, the Amended Order provides no mechanism
for notice to Local 472 of changes in gate location and
use. As drafted, the Union and employer would be en-
gaged in a continual game of musical chairs—but only the
employer would know when the music would start or stop.
Obviously, we cannot agree to that, and I strongly doubt
the Court would enter such an Order.
That said I believe this can be worked out. In response
to each paragraph of the proposed Amended Order I have
set forth the following comments and/or proposals.
. . . .
I look forward to working this out with you—and I be-
lieve that we will. Indeed to date, I think that we have
been able to resolve these issues satisfactorily.
But I must be clear. the above comments and propos-
als seek to underscore one essential premise: if a location
is being utilized for ingress or egress to the property, Local
472 has the right to picket that site. In that regard, I sim-
ply will not agree to any provision that extinguishes—or
even diminishes—that fundamental right.
Gerry, while we have joked about this, I am serious
when I say that we are willing to try to resolve this, but
only as a courtesy to you. Under other circumstances, and
with most other attorneys, I would simply let the Court de-
cide it because, in these circumstances, the type of Order
you seek will not be granted. We will accommodate you.
But we will not agree to conditions a court would not re-
quire.

On March 17, Regional’s attorney responded with a re-
drafted proposed amended order and indicated that he would be
available to discuss any objections or counter-proposals made
by the Union. This letter stated inter alia;

The Amended Order has been re-drafted to address the
concerns of Local 472 to the extent that they were reason-
able. Paragraphs 1, 2, 4 and 7 now indicate that picketing
is prohibited during the time of any temporary closure of
the gates. Those paragraphs also require Plaintiffs to pro-
vide Local 472 with 24 hour advance notice of any clo-
sure or re-opening of gates.
I also considered the proposed language which would
require plaintiffs to instruct” employees, material suppli-
ers, delivery persons and subcontractors that the closed
gates should no longer be used, I did not incorporate that
language into the Amended Order because Plaintiffs can-
not guarantee that every such party, particularly those who
may be outside their direct control, will receive an instruc-
tion regarding the non-use of the gates.
Finally, I added language to paragraph 8 which further
defines and limits the off-site work which is the subject of
that paragraph.
Jim I believe that the Amended Order recognizes the
rights of the plaintiffs as well as Local 472. It enables
Plaintiffs to proceed with the construction project and, at
the same time, gives Local 472 advance notice regarding
the opening and closure of gates so that it can continue
picketing activities.
I will be in the office on Wednesday after 9:30 a.m.
Please telephone me after you have reviewed this letter
and the revised Amended Order so we can conclude this
matter.

Apparently, no agreement was reached and on April 2, 1997,
Regional filed a motion for an amended order. The proposed
order, at paragraph 8, contained the following language which
is what the General Counsel contends is sufficiently offensive
so as to make the mere seeking of this remedy a violation of
Section 8(a)(1) of the Act.2

When necessary to perform off-site work including but not
limited to utility and sewer installations, improvements and
connections; roadway and curbing construction and im-
provements; traffic signals; and landscaping, Plaintiffs and
their contractors, subcontractors, suppliers and agents may
utilize entry and exit locations other than the gates which have
been established by the Order dated December 13, 1996, the
Supplemental Order dated January 22, 1997, and this
Amended Order, Picketing shall not take place at such entry
and exit locations.

In part, the General Counsel’s theory is that this single aspect
of the proposed amended order would modify the existing re-
serve gate arrangements to the extent that the Union would not
be entitled to engage in lawful primary picketing at certain
entrances despite the plaintiff’s use of those entrances.

2 To the extent that the Union contends that the Respondent violated
the Act by any other action, such a contention is precluded as it is the
General Counsel who determines what if any conduct is a violation of
the Act. Kaumagraph Corp., 313 NLRB 82 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
The Union made an unsuccessful attempt to remove the mat-
ter to the Federal District Court but the matter was remanded to
the state court. The motion for an amended order which had
been filed on April 2, was argued before Judge Diana who is-
sued a decision dismissing the motion on June 27, 1997. That
was 2 days after the instant complaint was issued. In showing
an understanding of the labor law issues, Judge Diana held that
inasmuch as the Employer was not alleging any additional ac-
tions such as violence or blockages which would be within state
court jurisdiction, the additional remedies sought by the com-
pany were preempted by the National Labor Relations Act, as
the remedy sought concerned rights and obligations defined and
regulated by the NLRA. The judge also concluded that in the
absence of any new acts proscribed by state law, the original
orders expired after 6 months under New Jersey’s Anti-
Injunction Act. In short, Judge Diana concluded that the mo-
tion to amend the original orders had no merit. He also noted
that as of June 17, 1997, the Union had certified that the picket-
ing had been withdrawn and that it had no plans to resume
picketing in the immediate future. (I am taking official notice of
Judge Diana’s decision.)
III. ANALYSIS
A. The 10(b) Issue
As noted above, the original charge, filed by the Union on
April 8, 1997, simply used boilerplate language to allege that
Regional violated Section 8(a)(1) of the Act. A complaint was
issued based on this charge on June 25, 1997. Thereafter, an
amended charge was filed on October 15, 1997, which set forth
the facts which the Union alleged to be violative of the Act.
This amended charge was filed more than 6 months after the
alleged event occurred; to wit, the filing by the Employer, on
April 2, 1997, of its motion to amend the order in the lawsuit it
had previously filed. At the opening of the hearing, the Gen-
eral Counsel moved to amend the complaint to reflect that fact
that an amended charge was filed.
In NLRB v. Fant Milling Co., 360 U.S. 301, 309 (l959), the
court held that allegations in a complaint which are not specifi-
cally alleged in the charge are proper if the matters asserted in
the complaint “are related to those alleged in the charge and
grow out of them while the proceeding is pending before the
Board.” The requirement that a complaint allegation have some
relationship to the allegations of the unfair labor practice charge
is that the statute prohibits the Board from initiating complaints
on its own.
In Embassy Suites Resort, 309 NLRB 1313 (1992), a charge
stated, in substance, that the Employer within the last 6 months
had discriminated against employees and had interfered with,
restrained, and coerced employees in the exercise of their Sec-
tion 7 rights. A complaint was issued and alleged that the Re-
spondent violated Section 8(a)(1) by (1) implying that the Un-
ion was preventing it from granting a wage increase; (2) creat-
ing an impression of surveillance; (3) threatening to reduce
employee amenities if the Union won an election; and (4) im-
pliedly promised a wage increase if the Union lost the election.
The Board, with Member Stephens dissenting rejected the Re-
spondent’s argument that the complaint was barred by Section
10(b) and held that the charge, which was timely filed, was
sufficient to support the allegations of the complaint. The court
in Embassy Suites Resort v. NLRB, 32 F.3d 588 (D.C. Cir.
1994), reversed the Board and relying on Fant Milling and G.
W. Galloway Co. v. NLRB, stated inter alia,

The Board was without authority to initiate an investi-
gation and issue a complaint in this case based upon an un-
fair labor practice charge containing only a boilerplate al-
legation that the Employer violated Section 8(a)(1) and ut-
terly lacking in factual specificity. Our decision should
not be thought to derogate from the Board’s authority to
“include allegations in the complaint that are not specifi-
cally asserted in the charge.” . . . To allow the Board to is-
sue a complaint based upon a charge containing only a
boilerplate Section 8(a)(1) allegation, however, unbounded
by any specific facts, is “tantamount to allowing the Board
to enlarge its jurisdiction beyond that given it by Con-
gress.”

Under the D.C. Circuit’s view of the law, the charge in this
case, although timely filed, did not state any facts and therefore
was not a valid charge upon which a complaint could have been
issued. The attempt to amend the charge by alleging specific
facts took place more than 6 months after the alleged actions
occurred. Accordingly, the amendment would be outside the
10(b) period and therefore could not cure the original invalid
charge. The consequence would be that the complaint, as either
initially issued or as amended at the opening of the trial, is one
that is based on an invalid charge and would be barred under
the Act’s statute of limitations
The court’s view is, however, not the Board’s view and I am
bound to follow Board law until such time as the Board’s
members change their minds or the Supreme Court tells them to
change their minds. Accordingly, based on the facts in this
case, I conclude that the charge was timely filed and was
amended so as to meet the Act’s 10(b) requirements.
B. The Bill Johnson Issue
The complaint alleges that the Respondent by pursuing a
lawsuit in state court in a particular way, has violated Section
8(a)(1) of the National Labor Relations Act. This is the kind of
issue that raises difficult questions regarding the relationship
between agencies of the Federal Government and the rights of
citizens to pursue legal claims in state courts.
In the present case, the Employer filed a lawsuit in a New
Jersey court seeking to enjoin the Union from engaging in al-
leged threats, violence and entrance blockages. Such a lawsuit
is clearly within the permissible jurisdiction of the state courts
and is not preempted by the National Labor Relations Act not-
withstanding that such conduct may also constitute violations
of Section 8(b)(1)(A) of the Act. Where these type of allega-
tions are made, the Board and the courts have concurrent juris-
diction. Construction Workers v. Laburnum Construction
Corp., 347 U.S. 656 (1994).
There was no full evidentiary hearing in the state lawsuit and
the lawyers for the company and the Union negotiated and
agreed to the entry of a consent order. This order was thereafter
further modified by the consent of the parties. The General
REGIONAL CONSTRUCTION CORP. 317
Counsel does not contend, nor could he, that the original law-
suit was baseless or motivated by retaliatory considerations.
Nevertheless, in negotiating the consent orders, the attorneys
set out a remedy that went beyond what the New Jersey court
might have issued if the plaintiff therein had been successful.
Thus, in addition to enjoining violence and blockages, the par-
ties agreed to set up a group of entrances to the construction
site and to reserve some for the exclusive use of the primary
employer while reserving the remainder for secondary persons.
In essence, what the parties did by mutual consent was to at-
tempt to resolve a problem that was not before the New Jersey
court. What they did was to resolve, ahead of time, secondary
boycott issues which are matters within the exclusive jurisdic-
tion of the National Labor Relations Act, at least insofar as the
availability of injunctive relief.3 In so doing, the attorneys
obviously were familiar with NLRB and court cases dealing
with picketing at construction sites where numerous employers
are situated and where reserve gates have been established. See
for example Building & Construction Trades Council (Mark-
well & Hartz,), 155 NLRB 319, enfd. 387 F.2d 79 (5th Cir.,
1967), cert. denied 391 US 914 (1968). I do not know whether
Judge Diana was equally familiar with this aspect of the law,
but I do not see why he would have declined to put his impri-
matur to an order which had been negotiated between two
knowledgeable labor attorneys.
What brought the Employer back to the New Jersey Court
was a change of circumstances wherein work involving the
public roads necessitated changes in the gates that had been
reserved pursuant to the initial consent orders. In that sense,
the Employer was trying to modify the original consent orders
so that it would not be accused of violating the reserved gates
thereby enabling the Union to ignore the gates and picket at all
entrances. In so doing, the Respondent’s attorney was careful
to notify the Union’s attorney of his intentions and to submit
for review and comment, the amended order before he submit-
ted it to the court. The Union’s attorney expressed consent to
some aspects of the proposed order, rejected others (particularly
par. 8), and suggested that he thought the parties could negoti-
ate the matter. Respondent’s counsel made some modifications
and indicated his willingness to talk further. However, in the
absence of agreement, Respondent’s counsel filed, on April 2,
1997, a motion to amend the previous orders which contained
the language of paragraph 8 which the General Counsel con-
tends is so offensive as to warrant a finding that the Respondent
committed a violation of the Act. .

3 Sec. 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act pro-
hibits a labor organization from engaging in secondary boycotts and
Sec. 10(l) of the Act gives the Board the exclusive authority to seek
temporary injunctions in the Federal District Courts against a union
where the Regional Director has reasonable cause to believe that such a
violation has occurred. In the event of a violation of the secondary
boycott provisions of the Act, the Board is empowered to issue a cease
and desist order which, if enforced by a circuit court, is tantamount to a
permanent injunction. While a private party is preempted from suing to
obtain injunctive relief for secondary boycotts against unions in labor
disputes, Sec. 303 of the Act does permit a private party to sue for
damages.
I should note at the outset that I do not find that the motion
to amend was filed with any retaliatory intent. It seems to me
that it was filed with the intention of meeting the exigencies of
changed circumstances, and if the proposed amended order
seemed to be asking for too much, there is no doubt in my mind
that it was not filed in bad faith. I also note that the motion did
not seek to prevent all primary picketing at the construction
site. All it purports to do is to modify the reserved gates and to
permit, in limited and temporary circumstances, the Respondent
to use gates that otherwise would be reserved for others, with-
out being picketed at such gates. While such a result, if granted
by the State court, might have been inconsistent with the
Board’s view of secondary boycotts in the context of common
situs picketing where there are reserved gates, and probably
would not be enforceable under the preemption doctrine, it is
hard for me to say that such a result would be illegal. More-
over, while it may be said that the motion was ultimately found
by Judge Diana to be baseless (resulting in its dismissal) the
evidence does not show that the motion was motivated by re-
taliatory intent.
In Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983),
a waitress, who believing that she had been fired because of her
efforts to organize a union, engaged in picketing and leafleting
along with three other employees. The employer’s manager
confronted the pickets and vowed to “get even” with them “if
its the last thing I do.” Subsequently, the restaurant filed in
state court, a complaint against the four employees and alleged
that they had engaged in mass picketing, had harassed custom-
ers, blocked entrances and that the leaflets contained false and
defamatory statements. While the lawsuit was still pending, the
General Counsel issued a complaint alleging that the employer
violated Section 8(a)(1) of the Act by filing and pursing the
State court lawsuit. The administrative law judge concluded,
based on Power Systems, 239 NLRB 445, 449–450 (1978), that
the employer committed an unfair labor practice by instituting a
civil lawsuit for the purpose of penalizing or discouraging its
employees from filing charges with the Board or seeking access
to the Board’s processes. Before reaching this conclusion, the
administrative law judge held a 4-day hearing where the par-
ties, in effect, fully litigated the State court claims. As to the
libel claim, the administrative law judge found that it was base-
less because “the evidence establishe[d] the truthfulness of
everything stated in the leaflet.” With minor exception, the
Board and the court of appeals agreed with the administrative
law judge. The Supreme Court reversed those decisions.
While noting that a suit filed against hourly wage employees
who “lack the backing of a union,” may provide a need for the
NLRB to intervene and provide a remedy, the Supreme Court
also noted that there are “weighty countervailing considera-
tions,” as access to the courts is a First Amendment aspect of
the right to petition the Government for redress of grievances.
With respect to the libel allegations, the Court noting that an
employer can recover damages in a tort action arising out a
labor dispute if it can prove malice and actual injury, stated that
to allow the Board to enjoin the prosecution of a well-grounded
state lawsuit, would mean that a State court plaintiff would be
deprived of a remedy for actual injury, since the “Board can
award no damages, impose no penalty, or give any other relief”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
to the plaintiff. The Court held that “it is an enjoinable unfair
labor practice to prosecute a baseless lawsuit with the intent of
retaliating against an employee for the exercise of rights pro-
tected by Section 7 of the NLRA. As the Court stated at 748:

To summarize, we hold that the Board may not halt the
prosecution of a state-court lawsuit, regardless of the
plaintiff’s motive, unless the suit, lacks a reasonable basis
in fact or law. Retaliatory motive and lack of reasonable
basis are both essential prerequisites to the issuance of a
cease-and-desist order against a state suit. The Board’s
reasonable basis inquiry must be structured in a manner
that will preserve the state plaintiff’s right to have a state
court jury or judge resolve genuine material factual or
state-law legal disputes pertaining to the lawsuit. There-
fore, if the Board is called upon to determine whether a
suit is unlawful prior to the time that the state court ren-
ders final judgment, and if the state plaintiff can show that
such genuine material factual or legal issues exist, the
Board must await the results of the state-court adjudication
with respects to the merits for the state suit. If the state
proceedings result in a judgment adverse to the plaintiff,
the Board may then consider the matter further and, if it is
found that the lawsuit was filed with retaliatory intent, the
Board may find a violation and order appropriate relief. In
short, then, although it is an unfair labor practice to prose-
cute an unmeritorious lawsuit for a retaliatory purpose, the
offense is not enjoinable unless the suit lacks a reasonable
basis.

Notwithstanding the above, the Supreme Court at footnote 5,
made what it described as an exception to the above described
rule. And it is footnote 5, which is what the General Counsel
relies on to support his theory of this case. The Court stated at
737–738:

It should be kept in mind that what is involved here is
an employer’s lawsuit that the federal law would not bar
except for its allegedly retaliatory motivation. We are not
dealing with a suit that is claimed to be beyond the juris-
diction of the state courts because of federal-law preemp-
tion, or a suit that has an objective that is illegal under fed-
eral law. Petitioner concedes that the Board may enjoin
these latter types of suits. Brief of Petitioner 12–13 ,20;
Reply Brief for Petitioner 8. Nor could it be successfully
argued otherwise for we have upheld Board orders enjoin-
ing unions from prosecuting court suits for enforcement of
fines that could not lawfully be imposed under the Act,
Granite State Joint Board, Textile Workers Union, 187
NLRB 636, 637, enforcement denied, 446 F.2d 369, revd.
409 U.S. 213; Booster Lodge No. 405 185 NLRB 380,
385, enforced 459 F.2d 1143, affd. 412 U.S. 84, , and this
Court has concluded that, at the Board’s request, a Dis-
trict Court may enjoin enforcement of a state-court injunc-
tion “where [the Board’s] federal power pre-empts the
field.” NLRB v Nash-Finch Co., 404 U.S. 138, 144.4

4 In NLRB v Nash-Finch, supra, the Supreme Court held that the
NLRB has implied authority to obtain a Federal court injunction to

With respect to footnote 5, the Court did not give much
guidance as to the types of cases that would fall within this
exception except for the cited cases which involved situations
where a union went to court to enforce fines against members
under circumstances where the fines themselves might have
violated Section 8(b)(1)(A) of the Act.5 I think it fair to assume,
however, that the Court did not intend the exceptions to swal-
low up the general rule.
Since the Supreme Court’s opinion, there have been a num-
ber of cases dealing with issues arising out of Bill Johnson’s
situations. Generalizing, it seems that the cases have fallen into
four categories.
There have been cases involving lawsuits where the holdings
were based on the general test of Bill Johnson’s which requires
that the lawsuit be baseless and motivated by retaliatory intent.
Diamond Walnut Growers v. NLRB, 53 F.2d 1087 (9th Cir.
1995) (specious libel suit against a striking union); Phoenix
Newspapers, 294 NLRB 47, 48–50 (1989) (a suit against a
union alleging libel and tortious interference with business
relationships that was dismissed by the State court); Machinists
Lodge 91 (United Technologies), 298 NLRB 325, 326 (1990),
enfd, 934 F.2d 1288 (2d Cir. 1991) (dismissed lawsuit by union
seeking to enjoin a member from attending union meetings and
engaging in certain conduct at the union hall); NLRB v. Operat-
ing Engineers Local 520, 15 F.3d 677 (7th Cir. 1994) (though
libel suit found to be without merit, court, as opposed to the
Board, held evidence was not enough to show that lawsuit mo-
tivated by retaliatory reasons); Johns & Hardin v. NLRB, 49
F.3d 237 (6th Cir. 1995) (court held employer who filed crimi-
nal trespass complaints against union organizers who distrib-
uted union literature on driveway of property didn't violate the
Act under Bill Johnson’s even though it violated the Act by
preventing organizers from engaging in handbilling activity);
and Summitville Tiles, Inc., 300 NLRB 64, 66 (1990) (evidence
of the employer’s antiunion animus supported the conclusion
that a lawsuit was intended to retaliate).
There is another category of cases where an employer, by
means of a lawsuit, has directly sought to prevent employees
from having access to the Board’s processes. In such cases, it
is typically alleged that a person or persons have maliciously
filed charges with the NLRB or have furnished false statements
or affidavits to the agency. Such lawsuits are almost always
without merit and should be preempted by the Supremacy
clause of the Constitution. While such suits would typically be
baseless and motivated by retaliatory considerations, their mere
filing would reasonably be expected to have a chilling affect on
the right of people to have access to the Board’s processes.6 In

enjoin enforcement of a state court injunction regulating peaceful pick-
eting by a union on preemption grounds.
5 NLRB v. Textile Workers Local 1029, 409 U.S. 213 (1972), in-
volved a case where the union violated Sec. 8(b)(1)(A) when it fined
employees who resigned from the union during a strike and returned to
work. Booster Lodge 405, 412 U.S. 84 (1973), also involved the ques-
tion of union fines and Sec. 8(b)(1)(A).

6 Consider the time, expense and anxiety of defending even a frivo-
lous lawsuit that is ultimately dismissed by a judge before a trial. One
must file an answer; file and respond to pretrial motions; answer inter-
REGIONAL CONSTRUCTION CORP. 319
other words, such a lawsuit is a direct attempt to prevent the
Board from carrying out its statutory mandate and can be
viewed as an attempt by a private party to nullify the Board’s
jurisdiction insofar as it affects that party. See for example LP
Enterprises, 314 NLRB 580 (1994), and Manno Electric, 321
NLRB 278 (1996).
Another category of cases which do fit within the footnote 5
exception, involve cases where the underlying acts constitute
unfair labor practices and the lawsuit is simply an attempt to
enforce the underlying act. As noted above, the cases cited by
the Supreme Court in footnote 5, involved situations where a
union was alleged to have violated Section 8(b)(1)(A) of the
Act by fining employee/members and the lawsuits were simply
the mechanism to enforce and collect the fines. Along equiva-
lent lines are cases where a union is charged with violating
Section 8(b)(4) and 8(e) of the Act when it seeks to enforce a
contract provision that is itself illegal under the hot cargo pro-
visions of Section 8(e) of the Act. In such cases, as the underly-
ing contract is either facially illegal or would be illegal as en-
forced, a lawsuit or grievance seeking to enforce such an illegal
contract provision would itself be illegal under the footnote 5
exception of Bill Johnson’s. In Elevator Constructors (Long
Elevator), 289 NLRB 1095, (1988), the Board held that a Un-
ion violated Section 8(b)(4)(ii)(A) by filing a grievance that
was predicated on a reading of the collective-bargaining
agreement that, if successful, would have resulted in a de facto
hot cargo clause. That is, had the grievance been successful
and had it been enforced by a court, the Order issued would
have been one that was a violation of Section 8(e). The Board
stated:

Because we have concluded that the contract clause as con-
strued by the Respondent would violate Section 8(e), we may
properly find the pursuit of the grievance coercive, notwith-
standing the Supreme Court’s decision in Bill Johnson’s Res-
taurant v. NLRB, 461 U.S. 731 (1983). Although holding that
the Board could not enjoin, as an unfair labor practice, the
lawsuit at issue in that case, the Court expressly noted that it
was not dealing with a “suit that has an objective that is illegal
under federal law.” 461 U.S. at 737 fn. 5. See also Teamsters
Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C.
Cir. 1987) (distinguishing between having an unlawful motive
in bringing a lawsuit and seeking to enforce an unlawful con-
tract provision).

Finally, there are cases involving an attempt by an employer,
via a lawsuit, to prohibit peaceful picketing or solicitation. The
three cases discussing this type of situation are Loehmann’s
Plaza, 305 NLRB 663, (1991), Riesbeck Food Markets, 315
NLRB 940, (1994) enfd. denied 91 F.3d 132 (4th Cir. 1996),
and Be-Lo Stores, 318 NLRB 1, 12 (1995), enfd. denied 126
F.3d 268 (4th Cir. 1997).
In Loehmann’s Plaza, the Board dealt with two related is-
sues. The first was whether the Respondent’s demands that

rogatories; produce documents; and give testimony under oath in pre-
trial depositions. When one considers the scope of the pretrial ques-
tions that may be posed in a civil suit, one can see that being a defen-
dant in a civil action is no small matter.
union representatives cease engaging in area standards picket-
ing and handbilling on private property in front of entrances of
the target employer at a shopping mall, was a violation of Sec-
tion 8(a)(1). In finding a violation, the Board applied the bal-
ancing test of Jean Country, 291 NLRB 11 (1988), and con-
cluded that although the area standards picketing and handbill-
ing was not at the strong end of Section 7 rights, it was worthy
of accommodation. In that case, the Board found that the Un-
ion’s alternative means of communicating its message was not
reasonable.
The second issue in Loehmann’s Plaza, was whether the Re-
spondent violated Section 8(a)(1) by filing a state court lawsuit
seeking injunctive relief. The General Counsel contended that
the filing of the lawsuit was an unfair labor practice because
under footnote 5 of Bill Johnson’s, the lawsuit was a preempted
case and therefore excluded from the general principles of Bill
Johnson’s. After discussing the Supreme Court’s decisions in
Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978), and
Longshoremen ILA v. Davis, 476 U.S. 380 (1986) (both dealing
with the issue of preemption and peaceful picketing), the Board
concluded that unless and until the NLRB’s General Counsel
issues a complaint alleging as an unfair labor practice, the filing
of a lawsuit seeking a remedy against peaceful picketing, that
lawsuit cannot be considered to be preempted within the mean-
ing of footnote 5 and therefore the complaint should be dis-
missed unless the General Counsel can show that the lawsuit
was baseless and motivated by retaliatory reasons. (That is, the
complaint must be evaluated under the general Bill Johnson’s
standards and not the fn. 5 exceptions.) On the other hand, the
Board also concluded that once the General Counsel issues a
complaint alleging that the lawsuit is an unfair labor practice,
the Respondent will violate the Act by continuing to prosecute
the lawsuit, because it is now on notice that the subject matter
of the lawsuit is preempted. The Board stated:

A different analysis is warranted with respect to the
Respondent’s postcomplaint pursuit of the state court law-
suit. The Respondent’s prosecution of the suit during that
time period need not be evaluated under Bill Johnson’s
because the suit was preempted and thus fell within the
footnote 5 exception to the Court’s decision. For the rea-
sons stated below, we find that there is a sound basis for
applying a different rule to a preempted lawsuit alleged to
violate Section 8(a)(1) of the Act.
As this case illustrates, prior to preemption of state
court jurisdiction under Garmon over conduct arguably
subject to the Act, a respondent pursuing its state court ac-
tion seeking to enjoin trespassory union picketing has a
right to protect, or at least have adjudicated, its property
rights. However, once the General Counsel decides to ini-
tiate a formal adjudictatory proceeding, the Board’s juris-
diction is invoked and it becomes the exclusive forum for
an adjudication of a respondent’s property rights. Because
at that point the state court tribunal “has no power to adju-
dicate the [preempted] subject matter,” any attempt to con-
tinue the litigation necessarily amounts to pure harass-
ment, i.e., an effort to subject the defendant or defendants
in the lawsuit to litigation costs and burdens before a tri-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
bunal that indisputably lacks jurisdiction over the matter at
that time. [Footnotes omitted.]7 [305 NLRB at 670–671.]

In Riesbeck Food Markets, supra, the Board dealt with a
situation very similar to that in Loehmann’s Plaza and which
involved, inter alia, allegations that the Respondent violated
Section 8(a)(1) by (1) denying access to private property by
union pickets and handbillers and (2) prosecuting a state law-
suit seeking to limit peaceful picketing and handbilling activity
to public property. In that case, a Board majority concluded that
where a lawsuit involves a matter which is preempted, the Re-
spondent “has an affirmative duty to take action to stay the state
court proceedings following issuance of the Board complaint.”
In Be-Lo Stores, 318 NLRB 1, 12, the Board found, among
other things, that the Respondent violated the Act by denying
union nonemployee picketers access to private property in or-
der to engage in solicitation and also violated the Act by main-
taining its state trespass lawsuit after the General Counsel is-
sued a complaint alleging that the denial of access was unlaw-
ful. Citing Loehmann’s Plaza, the Board found that the con-
tinuation of the lawsuit, after the complaint was issued. violated
Section 8(a)(1) and ordered the Respondent to reimburse the
Union for litigation expenses incurred in the state court pro-
ceeding. On appeal, the court refused to enforce this aspect of
the Board’s Order. Be-Lo Stores v. NLRB, 126 F.3d 268. In this
regard, the court held that the Respondent did not violate Sec-
tion 8(a)(1) by denying access for solicitation and picketing and
therefore the lawsuit seeking an injunction could not violate the
Act.
It seems to me that the issues in the present case are similar
to those in Loehmann’s Plaza, Riesbeck Food Markets, and Be-
Lo Stores, and that the outcome of this case should be deter-
mined by the standard used in those cases. That being the case,
I conclude that the complaint must be dismissed.
In order to fit within the exception of footnote 5 of Bill John-
son’s, the motion to amend the previous court orders has to
have involved a matter which is either preempted or which if

7 The Board’s decision in Loehmann’s Plaza presents to me what
seems to be an anomaly. For if one were to apply the rule literally, it
means that there can be no unfair labor practice based solely on the
filing of a lawsuit seeking a remedy for a union’s peaceful picketing,
unless and until the General Counsel issues a complaint alleging that
the lawsuit is a violation of the Act. This is because it is only after the
issuance of the unfair labor practice complaint that the Respondent
would be put on official notice that the subject matter of the state law-
suit is preempted. This means, in effect, that if a complaint is issued
which alleges the filing of a lawsuit to be an unfair labor practice, the
Board may not find a violation of law except only as to conduct which
occurs after the complaint is issued. That is, if the Respondent, after
issuance of the complaint, takes no further steps to process the lawsuit
and/or fails to withdraw the lawsuit, the initial complaint must be dis-
missed. Perhaps a better solution to this conundrum would be for the
General Counsel, or the Regional Director on his or her behalf, upon
application of the defendant in such a lawsuit, to issue a formal letter
notifying the parties that the subject matter of the lawsuit is preempted.
And if the lawsuit is then pressed further, the Regional Director could
issue a complaint and notice of hearing after the filing of an appropriate
charge.

granted would commit the court to countenance and underlying
act by the Respondent which would be a violation of some
federal law. Under Loehmann’s Plaza, the only rationale for
finding that the present case would fall within the footnote 5
exception would be because the subject matter of the lawsuit
was preempted. And indeed it was, as so found by Judge
Diana.
Nevertheless, at the time that the unfair labor practice charge
was filed, the Respondent had not been officially notified by
any responsible official of the NLRB that its lawsuit was con-
sidered to be preempted. Under Loehmann’s Plaza and subse-
quent cases, such notification could only come about upon the
issuance of a complaint which, in this case, occurred on June
25, 1997. And 2 days later, Judge Diana dismissed the motion
to amend and terminated the lawsuit entirely. Given the 2-day
interval between the issuance of the complaint and the dis-
missal of the State court lawsuit, the Respondent hardly had
time or opportunity to continue to process its state court action
or to withdraw it. As there is no evidence in this case to indi-
cate that the Respondent has filed an appeal of Judge Diana’s
ruling or has sought to have the Judge reconsider his decision,
the complaint in the instant matter must be dismissed under the
holding of Loehmann’s Plaza.
CONCLUSION OF LAW
The Respondent has not violated the Act in any manner al-
leged in the compliant.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.
8 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 pur-
poses