NOTICE:  This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions.  Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.  20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

United States Postal Service and Bobby Cline. Case 15-CA-17506(P)

September 28, 2007

ORDER DENYING MOTION FOR RECONSIDERATION

By Chairman Battista and Members Liebman
 and Walsh

On June 28, 2007, the National Labor Relations Board issued a Decision and Order in this proceeding finding that the Respondent violated Section 8(a)(1) of the Act by threatening an employee with a lawsuit and unspecified reprisals because he had filed an unfair labor practice charge with the Board.[1]  Thereafter, on July 25, 2007, the Respondent filed a motion for reconsideration.  The General Counsel filed an opposition.

In its motion, the Respondent asserts that (1) the Eleventh Circuit’s holding in McGuire Oil Co. v. Mapco, 958 F.2d 1552 (11th Cir. 1992), compels the Board to find that a threat to sue, even when a suit is not actually filed, is in fact “an incident of suit”; and (2) a threat to sue is protected by the free speech clause of the First Amendment independent of the operation of the “petition” clause of the First Amendment.

We reject the Respondent’s contentions.  First, we find McGuire Oil distinguishable from the instant case.  Unlike here, where no lawsuit was ever filed and no related litigation was ongoing or anticipated, the litigation threats in McGuire Oil were preliminary to a lawsuit that was actually filed.  958 F.2d at 1555.  Thus, the threats in McGuire Oil were found to be “reasonably and normally attendant upon effective litigation.”  958 F.2d at 1560.  Contrary to the Respondent’s contention, the McGuire Oil court did not hold that threats unrelated to any actual litigation would necessarily be considered to be “incident” to litigation.   

Second, we reject the Respondent’s argument that its threat to sue is protected by the “free speech” clause of the First Amendment independent of the operation of the “petition clause” of the First Amendment.  The free speech clause of the First Amendment does not protect threats of reprisal.  Where as here, the threat is coercive under Section 7, the threat is not speech that is protected by the First Amendment.  NLRB v. Gissel Packing Co., 395 U.S. 575, 618-620 (1969)(employer threats of retaliation are not protected by the First Amendment). 

Having duly considered the matter, the Board finds that the Respondent has not raised any extraordinary circumstances warranting reconsideration of the Board’s decision. See Section 102.48(d)(1) of the Board’s Rules and Regulations.  Accordingly,

IT IS ORDERED that the Respondent’s Motion for Reconsideration is denied.

Dated, Washington, D.C.  September 28, 2007

 

 

Robert J. Battista,

Chairman

 

 

 

 

Wilma B. Liebman,

Member

 

 

 

 

Dennis P. Walsh

Member

 

 

 

 

     (Seal)          National Labor Relations Board

 

 


[1] 350 NLRB No. 12 (2007).  In determining that the threat to sue violated the Act, the Board “assume[d] arguendo, without deciding, that the principles of BE & K [BE & K Construction v. NLRB, 536 U.S. 516 (2002)] are to be applied to a situation where a threat to file a lawsuit is ‘incidental’ to a lawsuit.”  The Board found, however, that the Respondent failed to show that its conduct was incidental to a lawsuit, and, thus, the threat was “not entitled to immunity.” Id., slip op. at 2. Members Liebman and Walsh relied “most significantly” on the fact that the Respondent never filed a lawsuit against Cline. Id. Chairman Battista, by contrast, did not rely principally on the fact that no suit was filed (noting that a respondent may lawfully state an intention to file a suit yet never actually do so), but agreed that, under the facts of this case, the threat to sue was unprotected. Id. at fn. 4.  Accordingly, the Board affirmed the judge’s finding that the threat to sue the employee for filing an unfair labor practice charge had the reasonable tendency to restrain employees in the exercise of their right to file charges under the Act.  On that basis, Chairman Battista agrees that the Respondent’s motion should be denied.