Electrical Workers Ibew Local 532 (Brink Construction)

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