Braun Electric Co.

1 324 NLRB No. 2 BRAUN ELECTRIC CO. 1 The state small claims procedures require that a plaintiff make a demand before filing a claim. Braun Electric Company, Inc. and International Brotherhood of Electrical Workers, Local Union No. 428, AFL–CIO. Case 31–CA–20842 July 21, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge and amended charge filed October 18 and December 6, 1994, by the Union, the Regional Di- rector for Region 31 issued a complaint June 29, 1995, against the Respondent, alleging that the Respondent engaged in certain unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and Sec- tion 2(6) and (7) of the National Labor Relations Act. Copies of the complaint and notice of hearing were served on the Respondent and the Charging Party. On September 27, 1995, the Regional Director issued an order postponing hearing indefinitely, which was served on the Respondent and the Charging Party. On October 19, 1995, on the basis of an all-party stipulation, the parties filed with the Board a motion to transfer the instant proceeding to the Board without a hearing before an administrative law judge and sub- mitted a proposed record consisting of the formal pa- pers and parties’ stipulation of facts with attached ex- hibits. On November 28, 1995, the Acting Executive Secretary of the Board issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, the General Coun- sel and the Respondent filed briefs. The Board has considered the stipulation, the briefs, and the entire record of this proceeding, and makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation with an office and place of business in Taft, California, is en- gaged in the building and construction industry per- forming electrical engineering, design, and construction work. The Respondent annually purchases and receives goods or services valued in excess of $50,000 from other enterprises located within the State of California, and each enterprise receives these goods in substan- tially the same form directly from points outside the State of California, and the Respondent annually de- rives gross revenues in excess of $500,000. We find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The issue is whether the Respondent violated Sec- tion 8(a)(1) of the Act by threatening to initiate, initiat- ing, and maintaining a lawsuit against Union Business Representative Danny Kane for videotaping Respond- ent President John Braun’s encounter with Kane and others who were attempting to submit employment ap- plications to the Respondent and for filing an unfair labor practice charge. A. Facts In 1989 the Union adopted a ‘‘salting resolution,’’ and since then the Union has engaged in ‘‘salting.’’ The purpose of ‘‘salting’’ is to organize unorganized employers. On March 16, 1994, pursuant to the Union’s ‘‘salt- ing’’ program, Kane, a full-time business representa- tive of the Union, and several other individuals went to the Respondent’s office to submit employment ap- plications. John Braun refused to accept the applica- tions because no positions were available and the Re- spondent’s practice was to accept applications only if a position was available. Kane videotaped the encoun- ter between John Braun and the applicants. On May 5, 1994, the Union filed an unfair labor practice charge, designated Case 31–CA–20561, alleg- ing that the Respondent had violated the Act by refus- ing to accept the applications. On August 30, 1994, the Regional Director dismissed the charge. On September 6, 1994, the Union filed an appeal of the dismissal. On October 13, 1994, Kane received a letter1 on the Respondent’s stationery, signed ‘‘John A. Braun, Presi- dent.’’ The letter stated in pertinent part: As you were the individual operating the video- tape recorder [in March] 1994 without my prior consent, I am making a demand on you for five thousand dollars ($5,000.00). You are liable under California law for civil penalties under the Pri- vacy Act, California Penal Code [sec.] 637.2. If this demand is not satisfied by November 1, 1994, a claim will be filed at [the small claims court]. In November 1994 Kane received a notice that he was being sued in the case of Braun v. Kane, IBEW Local 428, Small Claims Case No. SJ3614. On December 7, 1994, the small claims court decided in John Braun’s favor. Kane and the Union appealed. On March 8, 1995, the superior court, after a trial de novo, issued a judg- ment ‘‘in favor of Defendants Danny Kane and [the Union] . . . . Plaintiff John A. Braun to take nothing by reason of his complaint.’’ VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00001 Fmt 0610 Sfmt 0610 D:\NLRB\324.000 APPS10 PsN: APPS10 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Respondent, citing West Covina Disposal, 315 NLRB 47, 61 (1994), argues that there has been no manifestation that John Braun was acting on its behalf in bringing the lawsuit. In West Co- vina Disposal, the Board found that the respondent employer had done nothing that would reasonably lead employees to believe an- other employer’s supervisors were authorized to act for the respond- ent. Here, as explained above, John Braun’s status as president and his use of company stationery are sufficient reason for believing John Braun was authorized to act. And, as mentioned below, the fact that the acts at issue arose from an employment encounter provides further reason for believing that he was authorized to act. On April 25, 1995, the Office of Appeals sustained the Regional Director’s dismissal of the charge in Case 31–CA–20561. B. The Parties’ Contentions The General Counsel contends that the Respondent sent the demand letter and filed the lawsuit in retalia- tion for protected activity. The Respondent contends that John Braun was acting as an individual, not as the Respondent’s agent, in filing the lawsuit. Alternatively, the Respondent argues that the Board cannot find the lawsuit was filed for a retaliatory reason because the small claims court found the suit had merit. Finally, the Respondent contends that even assuming arguendo it is responsible for Braun’s conduct and that Braun filed the lawsuit to retaliate against the Union, Braun was not retaliating against any activity protected by the Act. C. Analysis The legal principles governing this case are well set- tled. In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), the Supreme Court held that establishing a lack of reasonable basis in fact or law and a retalia- tory motive are prerequisites to enjoining prosecution of a state court lawsuit. The Court also held, however, that where, as here, the lawsuit has resulted in a judg- ment adverse to the plaintiff, the Board may proceed to consider whether the lawsuit was filed with retalia- tory intent, and if such intent is present, find a viola- tion of the Act and order appropriate relief. Id. at 747. As the Board has explained: [We have] consistently interpreted Bill Johnson’s Restaurants to hold that if the plaintiff’s lawsuit has been finally adjudicated and the plaintiff has not prevailed, its lawsuit is deemed meritless, and the Board’s inquiry, for purposes of resolving the unfair labor practice issue, proceeds to resolving whether the respondent/plaintiff acted with a retal- iatory motive in filing the lawsuit. Operating Engineers Local 520 (Alberici Construc- tion), 309 NLRB 1199, 1200 (1992), enf. denied on other grounds 15 F.3d 677 (7th Cir. 1994). Having set forth the analytical framework, we now turn to the issues before us. 1. Agency Although the Respondent stipulated that John Braun is a supervisor and has acted as an agent for the Re- spondent, the stipulation also states that the Respond- ent ‘‘does not admit that Braun was acting as an agent’’ in threatening to initiate, initiating, and main- taining the small claims court suit. The Respondent ar- gues in its brief that John Braun was seeking ‘‘per- sonal damages arising out of an invasion of privacy,’’ these actions were not within his ‘‘duties on behalf of Respondent,’’ and therefore the Respondent cannot be found liable for his actions. We do not agree with the Respondent’s contention. In Nemacolin Country Club, 291 NLRB 456, 458 (1988), enfd. 879 F.2d 858 (3d Cir. 1989), the Board found that the respondent, through the president and a member of the board of governors, committed a num- ber of 8(a)(1) violations, rejecting the respondent’s contention that the president and the board member were not authorized to act on their own. The Board held that a party may be bound by con- duct of those it holds out to speak and act for it, even though there is no proof that specific acts were actu- ally authorized or subsequently ratified. In finding the president an agent, the Board focused on an antiunion letter from him to employees. The Board concluded that the fact that he was the respondent’s president and had signed the letter on the respondent’s stationery clothed him with apparent authority sufficient to bind the respondent by his conduct. Regarding the board member, the Board, noting that it often finds elected or appointed officials of an organization to be agents of that organization, quoted in Nemacolin, supra at 459, the following from Electrical Workers IBEW Local 453 (National Electrical), 258 NLRB 1427, 1428 (1981): While the holding of elective office does not man- date a finding of agency per se, such status is per- suasive and substantial evidence which will be de- cisive absent compelling contrary evidence. John Braun wrote the demand letter on the Respond- ent’s stationery and signed the letter ‘‘John A. Braun, President.’’ As in National Electrical, supra, this is ‘‘persuasive and substantial evidence’’ that John Braun was acting as the Respondent’s agent in sending the demand letter and pursuing the small claims court suit,2 unless the stipulation contains ‘‘compelling con- trary evidence.’’ We find no such compelling contrary evidence here. The Respondent’s claim that John Braun was not act- ing within his ‘‘duties on behalf of Respondent’’ is un- convincing. The demand letter and the lawsuit were di- rectly related to an encounter concerning employment that took place on company property, and the Re- spondent concedes, as it must, that John Braun acted VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00002 Fmt 0610 Sfmt 0610 D:\NLRB\324.000 APPS10 PsN: APPS10 3 BRAUN ELECTRIC CO. 3 The Respondent admits that Kane’s ‘‘purpose in applying for a job . . . was clearly in furtherance of the organizational objecti[ve]s of the ‘Salting Resolution.’’’ We find nothing in the stipulation nor the Respondent’s brief that would support finding that Kane’s and the Union’s activities were undertaken in bad faith and therefore un- protected. The Respondent has not shown that the videotaping was illegal under California law. Accordingly, the Board is not precluded from finding it to be related to the Union’s protected organizing activity. 4 In making this finding, we do not pass on whether the videotaping itself was protected activity. The question of whether the Respondent could lawfully have required the union group to either turn off the video recorder or leave the premises is not presented in this case. In any event, the record does not reflect that the Respond- ent made such a request. within the scope of the president’s duties during that encounter. Under the circumstances, we find that John Braun was acting as the Respondent’s agent when he sent the demand letter on the Respondent’s letterhead, signed it as the Respondent’s president, and pursued action consistent with the letter in the small claims court suit. 2. Protected activity Before reaching whether the Respondent’s lawsuit was retaliatory, we must decide whether any conduct in which Kane and the other individuals engaged—vis- iting the Company’s office to present employment ap- plications, videotaping the employment application en- counter, and filing an unfair labor practice charge— constitutes protected activity. Job applicants, including paid union organizers such as Kane, are considered employees under Section 2(3) of our Act, and are therefore entitled to the Act’s pro- tection. See NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995). Thus, Kane was not deprived of pro- tection under the Act while visiting the Company’s of- fice to present an employment application simply be- cause he was a paid union organizer. Kane and the other individuals who attempted to submit employment applications to John Braun were doing so pursuant to the Union’s ‘‘salting’’ program, i.e., they were attempting to organize the Respondent, and thus were engaged in protected Section 7 activity.3 Kane’s videotaping was a way to document what oc- curred during the employment application encounter and did not cause the activity to lose the protection of the Act.4 Thereafter, the Union filed an unfair labor practice charge alleging that the Respondent’s refusal to accept the applications was unlawful. When the Regional Di- rector dismissed the charge, the Union filed an appeal. There can be no doubt that this conduct was protected by the Act as well. As the Supreme Court stated in Bill Johnson’s, the rights secured by Section 7 include ‘‘the right to unionize, the right to engage in concerted activity for mutual aid and protection, and the right to utilize the Board’s processes.’’ 461 U.S. at 740. See also Roadway Express, 239 NLRB 653 (1978) (filing of a charge with the Board is protected activity). Ac- cordingly, we find that the conduct engaged in by Kane and the Union here constituted protected activity. 3. Retaliatory motive In a discussion with the small claims court judge about his lawsuit, John Braun made the following re- marks about the Union: The union uses videotaping to bring charges against me of unfair hiring practices. . . . . [The Union was] using [the videotape] as an en- trapment device to get me to say something wrong. . . . If I’d say [I would not hire union electricians], I would have had an unfair labor charge against me that they had backed up on tape. . . . That’s what their idea is, is to try to hurt me. . . . . The Union, it’s been trying to hurt me financially. They’ve been doing this since ’88. . . . I pulled out of the Union in 1988 when the Union used extortion against my company to sign what I felt was an unfair labor agreement. . . . . I’ve spent so far almost $10,000 fighting . . . un- substantiated charges. . . . I would not have been in this position if they hadn’t done this. They are not picking on my competitors. They are picking on me because I was an ex-union member. And that is their intent to punish [an] ex-union mem- ber. John Braun’s discussion with the court belies the Respondent’s argument that the lawsuit against Kane had no retaliatory motive and was not based on activ- ity protected by the Act. Assertions that the Union was using the videotaping as an entrapment device ‘‘to get me to say something wrong,’’ which would allow the Union to ‘‘bring charges against me’’ that would be ‘‘backed up on tape’’ are not the statements of some- one simply concerned about an invasion of privacy. Rather, they indicate that he was aware of and was re- acting to the Union’s attempt to organize and its filing of unfair labor practice charges. As discussed above, that activity was protected by the Act. John Braun, however, regarded the Union’s attempt to organize his work force as ‘‘hurting’’ him financially, ‘‘picking on’’ him, placing him in an undesirable position, and ‘‘punishing’’ him. The evidence shows that it was the Union’s attempt to organize the work force and not the videotaping itself which upset Respondent’s agent and caused him to sue. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00003 Fmt 0610 Sfmt 0610 D:\NLRB\324.000 APPS10 PsN: APPS10 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 The Respondent’s argument that the Board cannot find the law- suit retaliatory because the small claims court found in John Braun’s favor is without merit. Once a lawsuit has been finally adjudicated and the plaintiff has not prevailed, the lawsuit is deemed meritless. Alberici Construction, supra. The final adjudication of John Braun’s lawsuit by the superior court was in favor of Kane and the Union. Clearly, therefore, the small claims court judgment in John Braun’s favor cannot be dispositive on the question of retaliatory motive. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ We find that these statements by John Braun in the small claims proceeding are an explicit admission that he threatened to initiate, initiated, and maintained the lawsuit in retaliation for protected activity.5 See Summitville Tiles, 300 NLRB 64, 65 (1990); LP Enter- prises, 314 NLRB 580, 587 (1994). See also Tualatin Electric, 319 NLRB 1237 (1995), not reported in Board volumes (testimony about belief that union en- gaged in organized crime and that it was out to destroy witness’ company was evidence of witness’ antiunion sentiment). Because we have also found that John Braun’s acts are attributable to the Respondent, we conclude that, under the test in Bill Johnson’s, supra, a violation of Section 8(a)(1) of the Act has been es- tablished. CONCLUSION OF LAW By threatening to initiate, initiating, and maintaining a lawsuit against Danny Kane in small claims court in retaliation for protected activity, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, we shall order the Respondent to reimburse Kane and the Union for all legal and other expenses incurred in defending against the lawsuit John Braun filed in small claims court, including the appeal and the trial de novo in superior court, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991), enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993). ORDER The National Labor Relations Board orders that the Respondent, Braun Electric Company, Inc., Taft, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to initiate, initiating, and maintain- ing baseless lawsuits against employees and the Inter- national Brotherhood of Electrical Workers, Local Union No. 428, AFL–CIO in retaliation for protected activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reimburse Danny Kane and the Union for all legal and other expenses incurred in defending against the Respondent’s small claims court lawsuit (No. SJ3614), including the appeal and the trial de novo in superior court, in the manner set forth in the remedy section. (b) Within 14 days after service by the Region, post at its Taft, California facility copies of the attached no- tice marked ‘‘Appendix.’’6 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 18, 1994. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00004 Fmt 0610 Sfmt 0610 D:\NLRB\324.000 APPS10 PsN: APPS10 5 BRAUN ELECTRIC CO. To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT threaten to initiate, initiate, and/or maintain baseless lawsuits against employees and the International Brotherhood of Electrical Workers, Local Union No. 428, AFL–CIO in retaliation for protected activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reimburse Danny Kane and the Union for all legal and other expenses incurred in defending against our small claims court lawsuit (No. SJ3614), including the appeal and the trial de novo in superior court, with interest. BRAUN ELECTRIC COMPANY, INC. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00005 Fmt 0610 Sfmt 0610 D:\NLRB\324.000 APPS10 PsN: APPS10