Berger Realty Group and Robert Berger, Individually (13-CA-210885)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE: July 9, 2018

TO:

Peter Sung Ohr, Regional Director

Region 13

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: Berger Realty Group, LLC, and Robert Berger,

An Individual

Case 13-CA-210885

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512-5009-6700

512-5009-6733

512-5009-6767

The Region submitted this case for advice as to whether a lawsuit filed by Robert

Berger (“Berger”), as an individual, against SEIU Local 1 (“the Union”) in the Circuit

Court of Cook County, Illinois violated Section 8(a)(1) of the Act because it lacked a

reasonable basis and was commenced with a retaliatory motive. We initially conclude

that the state court lawsuit, although filed by Berger as an individual, was

attributable to the Employer, and that both Berger and the Employer should be

named as respondents. We further conclude that, under the principles established in

Bill Johnson’s Restaurants v. NLRB,1 each count of the lawsuit lacked a reasonable

basis and Berger, on behalf of the Employer, initiated the lawsuit to retaliate against

employee Section 7 activities. Therefore, the lawsuit violated Section 8(a)(1), and the

Region should issue complaint, absent settlement. However, concerns under

Section 10(b) affect how the Region should plead the violation in the complaint and

the extent of the available remedy.

FACTS

Berger Realty Group, LLC (“the Employer”) is an Illinois company engaged in the

business of real estate management and related services. Berger is the Employer’s

sole owner. In July 2014, the Employer’s four maintenance employees requested that

the Employer voluntarily recognize the Union as their exclusive collective-bargaining

representative

the extent of the available remedy.

FACTS

Berger Realty Group, LLC (“the Employer”) is an Illinois company engaged in the

business of real estate management and related services. Berger is the Employer’s

sole owner. In July 2014, the Employer’s four maintenance employees requested that

the Employer voluntarily recognize the Union as their exclusive collective-bargaining

representative. In September 2014, the Union filed an unfair labor practice charge

against the Employer and two affiliated entities, alleging that they were joint

employers who had violated the Act by, among other things, laying off the

maintenance employees and subcontracting their work. The charge alleged that

Berger personally committed some of the unfair labor practices, including soliciting

1 461 U.S. 731, 748-49 (1983).

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grievances from employees and promising to remedy them, telling employees that the

Employer would not sign any Union contract, and promising the employees benefits in

exchange for withdrawing support from the Union.

From September through early November 2014, the Union picketed at the

Employer’s buildings in Chicago while displaying a giant, inflatable rat and

distributing leaflets. The leaflets referred to Berger as “Bob” and stated, “Bob is a

lawbreaker! Berger Realty Group is currently Under Investigation with the NLRB for:

Intimidation, Retaliation, and many other laws protected under the National Labor

Relations Act.” The leaflets asked the buildings’ tenants to contact Berger and tell

him that his actions were disrupting the tenants’ quality of living. On October 17,

Union representatives handed Berger a copy of the leaflet outside one of his buildings.

On about March 5, 2015, the Region found merit to numerous allegations in the

Union’s September 2014 charge

under the National Labor

Relations Act.” The leaflets asked the buildings’ tenants to contact Berger and tell

him that his actions were disrupting the tenants’ quality of living. On October 17,

Union representatives handed Berger a copy of the leaflet outside one of his buildings.

On about March 5, 2015, the Region found merit to numerous allegations in the

Union’s September 2014 charge. The parties then entered into a non-board settlement

agreement in which the Employer voluntarily recognized the Union as the

maintenance employees’ exclusive bargaining representative. Berger then agreed to

and executed a collective-bargaining agreement with the Union.

On November 2, 2015, Berger, as an individual, filed a complaint against the

Union in the Circuit Court of Cook County, Illinois, alleging four counts: defamation

per se, false light, intentional infliction of emotional distress, and trespass. The

complaint pled facts concerning the Union’s organizing, picketing, and leafleting

activities. On March 17, 2016, the parties agreed to dismiss the trespass count. On

August 10, 2016, Berger filed an amended complaint on the first three counts in

which he alleged that the Union had made defamatory statements in the leaflet with

actual malice and requested compensatory and punitive damages.

On September 16, 2016, the Union filed a motion to compel compliance with

discovery asking the state court to require Berger to respond to a written discovery

request and substantiate the damages pled in the amended complaint. On

February 17, 2017, Berger filed an opposition to the motion to compel that contained

certain stipulations that became part of the record, including Berger’s reliance on

presumed damages for the counts of defamation per se and false light, and that

Berger would not be relying on any medical bills or any documents showing lost

rental revenue to establish specific damages

e amended complaint. On

February 17, 2017, Berger filed an opposition to the motion to compel that contained

certain stipulations that became part of the record, including Berger’s reliance on

presumed damages for the counts of defamation per se and false light, and that

Berger would not be relying on any medical bills or any documents showing lost

rental revenue to establish specific damages.

On November 1, 2017, the state court granted the Union’s motion for summary

judgment and dismissed all three counts of Berger’s lawsuit with prejudice.

Regarding the defamation per se and false light claims, the state court held that they

were untimely because the statute of limitations for those claims is one year, and

Berger admitted to having received the Union’s leaflet on October 17, 2014, which

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was over a year before he filed the lawsuit on November 2, 2015. The state court

dismissed the intentional infliction of emotional distress claim on the merits, finding

that the Union’s conduct, including displaying a giant, inflatable rat and distributing

leaflets, was not “extreme and outrageous” conduct. The state court also noted in

dismissing this claim that the statements on the Union’s leaflets were true,

specifically, that the Board had been investigating whether Berger violated the Act.

Berger did not appeal the court’s decision.

On December 1, 2017, the Union filed the instant charge against Berger and the

Employer alleging that they had violated Section 8(a)(1) by filing a state lawsuit

against it that lacked a reasonable basis and retaliated against the employees’

Section 7 activities. The Region served the charge on December 4, 2017.

ACTION

We initially conclude that the state court lawsuit, although filed by Berger as an

individual, is attributable to the Employer, and that both Berger and the Employer

should be named as respondents

a)(1) by filing a state lawsuit

against it that lacked a reasonable basis and retaliated against the employees’

Section 7 activities. The Region served the charge on December 4, 2017.

ACTION

We initially conclude that the state court lawsuit, although filed by Berger as an

individual, is attributable to the Employer, and that both Berger and the Employer

should be named as respondents. We further conclude that Berger and the Employer

violated Section 8(a)(1) by maintaining the state lawsuit against the Union because

each count of the lawsuit lacked a reasonable basis and the lawsuit retaliated against

employee Section 7 activities. However, concerns under Section 10(b) affect how the

Region should plead the violation in the complaint and the extent of the available

remedy.

I.

Berger’s Lawsuit is Attributable to the Employer, and Both Parties

Should be Named as Respondents

As an initial matter, we conclude that the lawsuit can be attributed to the

Employer even though Berger filed it as an individual. To determine whether an

individual’s lawsuit is attributable to an employer, the Board looks to traditional

agency principles.2 The Board considers the following factors: whether the employer

held out the individual as authorized to speak and act on its behalf, whether the

2 Braun Electric Co., 324 NLRB 1, 2 (1997) (attributing a lawsuit to the employer

because the individual who filed it was acting as an agent of the employer when he

wrote a demand letter as part of that lawsuit on company letterhead, signed the letter

with his title “President,” and the lawsuit directly concerned employment that took

place on company property).

B 1, 2 (1997) (attributing a lawsuit to the employer

because the individual who filed it was acting as an agent of the employer when he

wrote a demand letter as part of that lawsuit on company letterhead, signed the letter

with his title “President,” and the lawsuit directly concerned employment that took

place on company property).

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lawsuit directly relates to an employment matter and took place on company

property, and whether the individual committed other unfair labor practices.3

Each of the preceding factors is satisfied here. Berger is the Employer’s sole

owner and, as such, had authority to speak and act on its behalf, which is evidenced

by his negotiating and executing a collective-bargaining agreement with the Union.

The lawsuit also directly relates to the labor dispute between the Union and the

Employer, particularly the picketing and leafleting that occurred at the Employer’s

facilities as part of the maintenance employees’ protest of the Employer’s unfair labor

practices and support for the Union. During that underlying labor dispute, Berger

himself is alleged to have committed some of the unfair labor practices covered by the

Union’s September 2014 charge. These facts provide strong support for the conclusion

that Berger filed the state court lawsuit in his capacity as an agent of the Employer.

In addition to Berger’s lawsuit properly being attributed to the Employer, both

the Employer and Berger, as an individual, are appropriately named as Charged

Parties

ted some of the unfair labor practices covered by the

Union’s September 2014 charge. These facts provide strong support for the conclusion

that Berger filed the state court lawsuit in his capacity as an agent of the Employer.

In addition to Berger’s lawsuit properly being attributed to the Employer, both

the Employer and Berger, as an individual, are appropriately named as Charged

Parties. In Manno Electric, the Board considered a state court lawsuit filed by the

employer and its owner-president against the union that sought to organize the

employer’s workforce.4 The Board explicitly agreed with the ALJ that it was

appropriate to include the owner-president as an individual respondent “in order to

avoid frustrating the remedial purposes of the Act.”5 In so finding, the Board affirmed

the ALJ’s conclusion that if the owner-president “were permitted to bring the state

lawsuit, without prejudice, he would be obtaining for [the employer] indirectly what

[the employer] could not obtain directly, the pressing of an alleged illegal state

lawsuit against the [u]nion for which [the employer] would benefit. Nothing in the Act

3 See Atelier Condominium & Cooper Square Realty, 361 NLRB 966, 968 n.13, 999-

1001 (2014) (finding the lawsuit filed by two individual supervisors attributable to

their joint employers because the supervisors were acting as agents of the employers

as demonstrated by their authorization to speak and act for the employers, including

representing the employers in contract negotiations, their involvement in the day-to-

day operations of the employers, their engagement in conduct that otherwise violated

Section 8(a)(1) and (3), and the fact that the sole basis for filing the lawsuit against

the plaintiff was by virtue of the plaintiff’s employment relationship with the

employers), enfd. 653 Fed. Appx. 62 (2d Cir. 2016); Braun Electric Co., 324 NLRB at

2-3.

4 321 NLRB 278 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997).

5 Id., 321 NLRB at 278, n.3

gement in conduct that otherwise violated

Section 8(a)(1) and (3), and the fact that the sole basis for filing the lawsuit against

the plaintiff was by virtue of the plaintiff’s employment relationship with the

employers), enfd. 653 Fed. Appx. 62 (2d Cir. 2016); Braun Electric Co., 324 NLRB at

2-3.

4 321 NLRB 278 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997).

5 Id., 321 NLRB at 278, n.3.

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gives ‘the [c]ompany’s principal that privilege.’”6 To similarly prevent skirting of the

Act in the current case, the complaint here also should include both the Employer and

Berger as respondents, and the Region need not allege that they are alter egos or joint

employers.

II. The Employer and Berger Violated Section 8(a)(1) by Maintaining a

State Court Lawsuit Against the Union that Lacked a Reasonable Basis

and Retaliated Against Section 7 Activities

In Bill Johnson’s Restaurants v. NLRB, the Supreme Court held that the Board

may enjoin as an unfair labor practice the filing and prosecution of a state court

lawsuit only when the lawsuit: (1) lacks a reasonable basis in law or fact; and (2) was

commenced with a retaliatory motive.7 In BE & K Construction Co., the Board

clarified that a baseless lawsuit, whether ongoing or completed, violates the Act if the

motive for initiating the lawsuit was to retaliate against Section 7 rights, but that a

reasonably based lawsuit does not violate the Act, regardless of the motive for

bringing it.8

A lawsuit is objectively baseless when its factual or legal claims are such that “no

reasonable litigant could realistically expect success on the merits.”9 The analysis

requires “[an examination of] the plaintiff’s evidence to determine whether it raises

any material questions of fact.”10 In conducting that analysis, the Board cannot make

credibility resolutions or draw inferences from disputed facts so as to usurp the fact-

finding role of the jury or judge.11

such that “no

reasonable litigant could realistically expect success on the merits.”9 The analysis

requires “[an examination of] the plaintiff’s evidence to determine whether it raises

any material questions of fact.”10 In conducting that analysis, the Board cannot make

credibility resolutions or draw inferences from disputed facts so as to usurp the fact-

finding role of the jury or judge.11

Applying these principles here, we conclude that each count of the state court

lawsuit lacked a reasonable basis. We also conclude that Berger, on behalf of the

6 Id. at 295.

7 461 U.S. at 748-49.

8 351 NLRB 451 (2007).

9 Id. at 457.

10 Geske & Sons, Inc. v. NLRB, 103 F.3d 1366, 1376 (7th Cir. 1997), cert. denied, 522

U.S. 808 (1997). See also Bill Johnson’s, 461 U.S. at 745-47.

11 Id. at 744-46.

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Employer, filed the lawsuit to retaliate against the maintenance employees’ Section 7

activities.

A.

Each count of the lawsuit dismissed by the state court lacked a

reasonable basis

We agree with the Region that the three counts of the lawsuit dismissed by the

state court lacked a reasonable basis.12 Initially, regarding the claims of defamation

per se and false light, those claims lacked a reasonable basis because Berger filed

them after the applicable statute of limitations had expired. Specifically, the state

court noted that Berger had knowledge of the alleged defamatory statements on the

Union’s leaflets as of October 17, 2014, when the Union handed him a leaflet outside

one of his buildings, but he did not file his lawsuit until November 2, 2015, more than

two weeks beyond the one-year statute of limitations for the defamation per se and

false light claims.13 Thus, neither of those claims could ever have been meritorious as

of the date Berger filed them.

Moreover, each count of the state lawsuit lacked a reasonable basis under

substantive law

et outside

one of his buildings, but he did not file his lawsuit until November 2, 2015, more than

two weeks beyond the one-year statute of limitations for the defamation per se and

false light claims.13 Thus, neither of those claims could ever have been meritorious as

of the date Berger filed them.

Moreover, each count of the state lawsuit lacked a reasonable basis under

substantive law. First, regarding the defamation per se claim, under Illinois law, a

statement is considered defamatory if it tends to cause such harm to the reputation of

another that it lowers that person in the eyes of the community or deters third

persons from associating with him.14 Truth is an absolute defense to a claim of

defamation and only “substantial truth” is required to establish this defense.15

Additionally, to successfully prosecute a state defamation lawsuit that is connected to

a labor dispute, Illinois courts acknowledge that under Linn a plaintiff must also

12 It is unnecessary to analyze the fourth count, i.e., the trespass claim, because the

parties agreed to dismiss that count in March 2016, which was well outside of the

Section 10(b) period for the current charge.

13 735 Ill. Comp. Stat. 5/13-201 (2018) (“Actions for slander, libel or for publication of

matter violating the right of privacy, shall be commenced within one year next after

the cause of action accrued.”)

14 Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 206 (Ill. 1992).

15 See, e.g., Seitz-Partridge v. Loyola University of Chicago, 987 N.E.2d 34, 41 (Ill.

App. Ct. 2013) (“While substantial truth is normally a question for the jury, where no

reasonable jury could find that substantial truth had not been established, the

question is one of law.”).

roadcasting Corp., 607 N.E.2d 201, 206 (Ill. 1992).

15 See, e.g., Seitz-Partridge v. Loyola University of Chicago, 987 N.E.2d 34, 41 (Ill.

App. Ct. 2013) (“While substantial truth is normally a question for the jury, where no

reasonable jury could find that substantial truth had not been established, the

question is one of law.”).

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demonstrate that the allegedly defamatory remarks were made with actual malice

and caused the plaintiff damage.16

Here, the statements on the Union’s leaflets were substantially true – the

Employer was under investigation by the Board for numerous alleged unfair labor

practices, including several that Berger allegedly committed himself. Indeed, the

state court, albeit in the context of analyzing the intentional infliction of emotional

distress claim, concluded that the leaflet contained true statements. The leaflet’s

substantial truth is an absolute defense to the defamation claim. That defense also

means that Berger and the Employer could not have established actual malice, i.e.,

that the Union distributed the leaflet knowing it contained false statements or with

reckless disregard for the truth or falsity of its statements, a required element under

Linn that is recognized by Illinois courts when the challenged statements occurred

during a labor dispute. Finally, Berger and the Employer also failed to establish the

required element of actual damages because Berger stipulated in opposing the

Union’s motion to compel compliance with discovery that he was relying on presumed

damages and did not have medical records or records of lost rents to establish actual

damages.17 In sum, Berger and the Employer could not satisfy several elements of the

defamation per se claim

he Employer also failed to establish the

required element of actual damages because Berger stipulated in opposing the

Union’s motion to compel compliance with discovery that he was relying on presumed

damages and did not have medical records or records of lost rents to establish actual

damages.17 In sum, Berger and the Employer could not satisfy several elements of the

defamation per se claim.

Second, regarding the false light claim, Illinois law requires a plaintiff to show

that he or she was placed in a “false light” before the public as a result of the

defendant’s actions, that the false light would be highly offensive to a reasonable

person, and that the defendant acted with actual malice.18 Substantial truth of the

16 See Von Solbrig Memorial Hospital v. Licata, 305 N.E.2d 252, 255-57 (Ill. App. Ct.

1973) (recognizing the federal overlay of actual malice and damages mandated by

Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 64-66 (1966), for a defamation

claim in a labor dispute).

17 Inasmuch as it dealt with the standard for finding an ongoing lawsuit to be

baseless, the Region should not rely on Milum Textile Services Co., 357 NLRB 2047

(2011), in support of finding this completed lawsuit to be an unfair labor practice. The

General Counsel does not necessarily agree with the standard for enjoining ongoing

lawsuits articulated in Milum Textile Services.

18 Kolegas v. Heflet Broadcasting Corp., 607 N.E.2d at 209-10.

ely on Milum Textile Services Co., 357 NLRB 2047

(2011), in support of finding this completed lawsuit to be an unfair labor practice. The

General Counsel does not necessarily agree with the standard for enjoining ongoing

lawsuits articulated in Milum Textile Services.

18 Kolegas v. Heflet Broadcasting Corp., 607 N.E.2d at 209-10.

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challenged statements is also a defense to a claim of false light.19 Thus, as with the

defamation per se claim, the false light claim was baseless because the statements on

the Union’s leaflets were substantially true. That meant Berger and the Employer

also could not establish the required element of actual malice. And again, based on his

stipulation, Berger also could not establish the required element of actual damages

for this claim.

Finally, regarding the intentional infliction of emotional distress claim, Illinois

law requires a plaintiff to establish 1) that the defendant’s conduct was extreme and

outrageous, 2) that the defendant knew that there was a high probability that his or

her conduct would cause severe emotional distress, and 3) that the conduct in fact

caused severe emotional distress.20 The standard for what qualifies as “extreme and

outrageous” is high, and under no circumstances do “mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities” qualify.21 Instead, the

conduct must be so extreme as to “go beyond all possible bounds of decency” and be

regarded as intolerable in a civilized community.22 Here, the state court, in granting

the Union’s motion for summary judgment, concluded that the Union’s picketing and

distribution of a truthful leaflet could not constitute extreme or outrageous conduct

ppressions, or other trivialities” qualify.21 Instead, the

conduct must be so extreme as to “go beyond all possible bounds of decency” and be

regarded as intolerable in a civilized community.22 Here, the state court, in granting

the Union’s motion for summary judgment, concluded that the Union’s picketing and

distribution of a truthful leaflet could not constitute extreme or outrageous conduct.

The court also concluded that the added presence of a giant, inflatable rat did “not

rise to shocking the conscience or being beyond the pale of what one would find

acceptable in a civilized society.” In dismissing this claim with prejudice, the court

noted that it was not possible for Berger to replead the claim to satisfy the extreme

and outrageous standard.

Although the state court did not reach the issue, Berger also could not have

satisfied the third element of the intentional infliction claim, i.e., that the conduct in

fact caused severe emotional distress. Despite pleading in the complaint that he had

19 Wynne v. Loyola University of Chicago, 741 N.E.2d 669, 677 (Ill. App. Ct. 2000)

(plaintiff could not prevail on her false light claim because the assertions “were

substantially true”).

20 Kolegas v. Heflet Broadcasting Corp., 607 N.E.2d at 211.

21 McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).

22 Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976) (plaintiff did not

establish a claim for intentional infliction of emotional distress by the company

seeking to collect money owed to it because the company did not use outrageous

methods when repeatedly calling and visiting the plaintiff at home and in the hospital

in an attempt to collect on the promissory note).

65, 767 (Ill. 1976) (plaintiff did not

establish a claim for intentional infliction of emotional distress by the company

seeking to collect money owed to it because the company did not use outrageous

methods when repeatedly calling and visiting the plaintiff at home and in the hospital

in an attempt to collect on the promissory note).

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suffered “medically significant and diagnosable distress,” Berger then stipulated in

opposing the Union’s motion to compel that he had no medical records to support his

claim of damages and relied solely on presumed damages. Berger did not produce or

identify any evidence during either the state court litigation or the Region’s

investigation to substantiate his claim.

Since all three claims in the lawsuit were objectively baseless, the lawsuit can be

found to violate the Act under the standard in BE & K Construction, as long as it was

also filed with a retaliatory motive.

B.

The lawsuit retaliated against the maintenance employees’

Section 7 activities

Berger, on behalf of the Employer, filed the lawsuit to retaliate against the

maintenance employees’ efforts to protest the Employer’s unfair labor practices and to

support the Union. Factors for discerning a retaliatory motive include whether the

lawsuit was directed at protected concerted activity, whether the respondent

demonstrated prior animus toward protected rights, whether the lawsuit was

baseless, and whether the respondent made any claim for punitive damages.23 Each

of these factors is present here.24 First, the lawsuit explicitly targeted the

maintenance employees’ Section 7 activity of picketing and distributing leaflets to

protest the Employer’s alleged unfair labor practices and support the Union

demonstrated prior animus toward protected rights, whether the lawsuit was

baseless, and whether the respondent made any claim for punitive damages.23 Each

of these factors is present here.24 First, the lawsuit explicitly targeted the

maintenance employees’ Section 7 activity of picketing and distributing leaflets to

protest the Employer’s alleged unfair labor practices and support the Union. Second,

Berger’s, and the Employer’s, prior animus toward the employees’ protected rights is

evidenced by the unfair labor practices alleged in the Union’s September 2014 charge,

which the parties settled after the Region made a merit determination. The alleged

violations included laying off the maintenance employees, subcontracting their work,

soliciting their grievances, promising them benefits, and making statements that

Union representation would be futile. Berger also demonstrated Union animus during

his deposition for the state lawsuit when he described the Union organizer as a liar,

bum, cheat, and “very ambitious ignoramus,” and described the two Union supporters

that handed him the Union’s leaflet as “thugs.”

23 See, e.g., Ashford TRS Nickel, LLC, 366 NLRB No. 6, slip op. at 6-7 (Feb. 1, 2018).

24 While the Board in Allied Mechanical Services, 357 NLRB 1223, 1232 (2011), enf.

denied 734 F.3d 486 (6th Cir. 2013), discussed a respondent’s lawsuit as being

“retaliatory on its face” if it seeks an award of money damages based on statutorily

protected conduct, the General Counsel does not necessarily agree with that

conclusion, and the Region should not cite Allied Mechanical for that proposition.

2011), enf.

denied 734 F.3d 486 (6th Cir. 2013), discussed a respondent’s lawsuit as being

“retaliatory on its face” if it seeks an award of money damages based on statutorily

protected conduct, the General Counsel does not necessarily agree with that

conclusion, and the Region should not cite Allied Mechanical for that proposition.

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Third, the obvious lack of merit to each count of the state lawsuit provides

additional support for a retaliatory motive finding. Because Berger filed the

defamation per se and false light claims after the applicable statute of limitations had

expired, he could never have succeeded on those claims. Those facts strongly support

the inference that Berger did not file the lawsuit with the legitimate objective of

vindicating his legal rights, but rather to retaliate against his employees’ pro-Union

activities and impose litigation costs on the Union. Finally, Berger’s request for

compensatory and punitive damages for unspecified reputational injuries, while

stipulating that he could not justify or quantify any amount of actual damages, also

evidences a retaliatory motive.25 Because the evidence here firmly establishes that

Berger, on behalf of the Employer, filed the state lawsuit in retaliation for the

maintenance employees’ exercise of their Section 7 rights, the lawsuit violates

Section 8(a)(1).

III. The Effect of Section 10(b) on the Complaint and the Remedy

Because of Section 10(b) concerns, the complaint should allege only that the

respondents unlawfully maintained (but not filed) the baseless and retaliatory

lawsuit. Although Berger initiated the state lawsuit against the Union two years

earlier, on November 2, 2015, the Union did not file the current charge until

December 1, 2017. The Region did not serve the charge on Berger until December 4,

2017

e of Section 10(b) concerns, the complaint should allege only that the

respondents unlawfully maintained (but not filed) the baseless and retaliatory

lawsuit. Although Berger initiated the state lawsuit against the Union two years

earlier, on November 2, 2015, the Union did not file the current charge until

December 1, 2017. The Region did not serve the charge on Berger until December 4,

2017. Thus, because the complaint can only address unfair labor practices occurring

in the six months before the current charge, it cannot include an allegation that

Berger and the Employer violated Section 8(a)(1) by filing the state lawsuit, which

occurred well outside the six month period. Moreover, as noted above, for this same

reason the trespass claim that Berger originally included in the lawsuit, but which

the parties agreed to dismiss in March 2016, is entirely outside the scope of the

complaint.

The application of Section 10(b) also limits the available remedy. Rather than

recover all legal expenses it incurred defending against a baseless lawsuit over the

course of the entire state proceeding, the Union here may only be reimbursed for all

reasonable legal fees and expenses incurred during the six months prior to filing and

25 See Atelier Condominium, 361 NLRB at 971 (the size of the unsubstantiated claims

for each injury, each of which included punitive damages, was evidence of an unlawful

motive).

ntire state proceeding, the Union here may only be reimbursed for all

reasonable legal fees and expenses incurred during the six months prior to filing and

25 See Atelier Condominium, 361 NLRB at 971 (the size of the unsubstantiated claims

for each injury, each of which included punitive damages, was evidence of an unlawful

motive).

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service of the charge.26 Therefore, the Union will only be entitled to reasonable legal

fees and expenses incurred since June 4, 2017.

/s/

J.L.S.

ADV.13-CA-210885.Response.BergerRealty.

26 See, e.g., Cross Island Telephone Services, 330 NLRB 19, 19 n.2 (1999) (noting that

the monetary remedy had to be limited to the 6-month period preceding the charge in

a case where the employer had violated Section 8(a)(5) by refusing to sign and follow

an agreed-on contract). See also BE & K Construction, Case 26-CA-17650, Advice

Memorandum dated March 17, 1997 (directing the Region to seek as a remedy only

the $1,500 to $2,000 in attorneys’ fees the charging party-union had incurred during

the Section 10(b) period even though the union had incurred a total of $230,000 in

fees defending against the employer’s baseless and retaliatory lawsuit).

(b) (6), (b) (7)