Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 77business establishment with three fellow employees and a fewnonemployees. They carried signs and distributed leaflets askingcustomers to boycott the restaurant and accusing the respondentof unfair labor practices. The respondent confronted the picketersand threatened to "get even" with them and then filed a lawsuitagainst the employees in state court alleging that the employees'actions had interfered with its business (business interferenceclaim) and that the leaflets were libelous (libel claim). The employee-defendantscounterclaimed for abuse of process and libel.The state court granted the employee-defendants' Motion forSummary Judgment on the business interference claim and dismissedtheir abuse of process counterclaim, but left the libelclaim and counterclaim for trial.In its initial decision," the Board had found that the respondenthad violated Section 8(a)(4) and (1) by filing the state courtlawsuit with the intent of impeding the Board's processes andpunishing the employees for exercising their Section 7 rights.The United States Court of Appeals for the Ninth Circuit issueda judgment57 enforcing the Board's Order in its entirety. Findingthat the first amendment right of access to the courts and theState's compelling interest in maintaining domestic peace overrodethe concerns embodied in Section 8(a)(4) and (1) of the Act,however, the Supreme Court vacated the judgment and remandedthe case to the Board. The parties thereafter entered into anagreement settling the remaining libel claims before the statecourt and providing for a maximum payment by the respondentto the employees to compensate them for fees and costs.In its opinion, the Court indicated that the Board could notenjoin a lawsuit that had a reasonable basis in law or fact, butcould enjoin a suit that did not have such a reasonable basis. Inthe event that the suit lacked a reasonable basis, the Court declaredthat the Board could proceed with the unfair labor practiceproceeding and decide whether the suit was filed with a retaliatorymotive. The Court further indicated, however, that if areasonable basis for the suit existed the Board must stay its unfairlabor practice proceeding until the state court suit was concluded.If the state court then found merit in the suit, the Courtstated, then the employer should also prevail before the Boardbecause the filing of a meritorious lawsuit, even with a retaliatorymotive, is not an unfair labor practice. If the state court judgmentwent against the employer, or the suit was withdrawn orotherwise shown to be without merit, however, the Court stated,then the Board could proceed to adjudicate the unfair laborpractice case because the employer has had its day in court andthe State's interest in providing a forum for its citizens has beenvindicated."249 NLRB 155 (1980).57 660 F.2d 1335 (1981) (as modified on denial of rehearing and rehearing en banc Mar. 2, 1982).