Operating Engineers Local 520 (Alberici Constuction)

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1199 (N.L.R.B. 1992)

1199
309 NLRB No. 177
TEAMSTERS LOCAL 520 (ALBERICI CONSTRUCTION)
International Union of Operating Engineers, Local
520, AFL–CIO (Alberici Construction Com-
pany, Ben Hur Construction Company, and
McCarthy Brothers) and Thomas C. Glenn.
Case 14–CB–7167
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 9, 1992, Administrative Law Judge Walter
H. Maloney issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The issue presented in this case is whether the Re-
spondent Union violated Section 8(b)(1)(A) of the Act
by filing a state court lawsuit against a union member
for slander and libel. The Union’s lawsuit alleged that
the union member made slanderous and libelous state-
ments in charges filed against the Union with the
Equal Employment Opportunity Commission (EEOC)
and the National Labor Relations Board (the Board).
The judge found that the Union’s lawsuit had a reason-
able basis in law and fact and that it was not filed for
retaliatory reasons. Thus, the judge concluded that the
Union did not violate the Act and recommended that
the complaint be dismissed. We disagree for the fol-
lowing reasons.
Thomas Glenn, the Charging Party, and other mem-
bers of the Union, individually filed multiple charges
with the EEOC and the Illinois Department of Human
Resources (IDHR) alleging that the Union was dis-
criminating on the basis of race in the operation of its
exclusive hiring hall. Glenn and the other members
also wrote letters to the Union’s International president
requesting an investigation of their charges and filed a
lawsuit in Federal court alleging discrimination. Each
of the EEOC/IDHR charges were determined to have
no merit and the Federal court suit was dismissed for
lack of prosecution. Glenn subsequently filed a charge
with the NLRB alleging that, through improper failures
to make referrals from its hiring hall, the Union re-
strained and coerced Glenn and others in the exercise
of their rights guaranteed by Section 7. The Regional
Director dismissed Glenn’s charge.
The Union then filed a civil lawsuit against Glenn,
alleging that Glenn libeled and slandered the Union by
making false statements in the charges he filed with
the EEOC/IDHR and the NLRB. The Union’s lawsuit
sought a total of $200,000 in damages, including puni-
tive damages. The state court granted Glenn’s motion
to dismiss the lawsuit on the ground that the state-
ments he filed with the EEOC/IDHR and the Board
were privileged. In reaching its decision, the state court
relied on an Illinois state court case that held that
statements made in EEOC charges are privileged. Ap-
plying the same rationale as that case, the state court
extended the privilege to statements filed with the
Board.
Glenn filed the present charge with the Board alleg-
ing that the Union’s state lawsuit was filed to restrain
and coerce employees in the exercise of their Section
7 rights.
The administrative law judge applied the principles
set out in Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983), and found that the Union’s lawsuit
had a reasonable basis in law and fact, even though the
Union was not successful and the lawsuit was dis-
missed. The judge found that a factual basis existed for
the Union’s lawsuit because it appeared that Glenn
made unsubstantiated charges of discrimination and be-
cause Glenn admitted at the hearing that some of the
statements he made in the charges were false. The
judge also found that the lawsuit had a reasonable
basis in law because the Union presented a set of
precedents to the court that ‘‘gave it a triable, if not
winnable case on the law.’’
The judge, though he did not feel it was necessary,
proceeded to determine whether the Union filed its
lawsuit with a retaliatory motive. The judge found that
Glenn engaged in a campaign of filing false and frivo-
lous charges that caused the Union to expend a sub-
stantial amount of money ($15,000) defending itself.
The judge was not persuaded that punitive damages
should be considered in determining whether the
Union’s motive was retaliatory.
Although the judge correctly enunciated the test set
out in Bill Johnson’s Restaurants, in finding that the
Union’s lawsuit had a reasonable basis in law and fact
and was not filed for retaliatory purpose, we find that
he erred in his application of the test to the facts of
this case.
In Bill Johnson’s Restaurants, the Supreme Court
held that establishing a lack of reasonable basis in fact
or law and a retaliatory motive are prerequisites to en-
joining prosecution of a state court lawsuit. In addition,
the Court held that if ‘‘the state proceedings result in
a judgment adverse to the plaintiff [respondent], the
Board may then consider the matter further and, if it
is found that the lawsuit was filed with retaliatory in-
tent, the Board may find a violation and order appro-
priate relief.’’ 461 U.S. at 749.
In this case, the administrative law judge defined
‘‘reasonable basis’’ as having a ‘‘triable claim, both on
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Chairman Stephens and Member Oviatt acknowledge that the
foregoing analysis conforms with Board precedent, and would apply
that precedent in this case, in the absence of a Board majority to
modify it. In addition, however, they expressly find that the Union’s
lawsuit lacked a reasonable basis in law and in fact because the
Union was, or should have been, on notice of Illinois state court
precedent holding that charges filed with EEOC are privileged from
civil actions for libel and slander. Further, to the extent the Union’s
lawsuit related to Glenn’s NLRB charges, Member Oviatt notes that
those charges do not raise on their face a race discrimination claim,
and therefore the Union had no basis for presuming that the NLRB
charges were a continuation of Glenn’s prior race discrimination
charges which had been found to be without merit by the EEOC and
the state agency.
2 Member Oviatt finds it unnecessary to rely on the fact that the
Respondent’s lawsuit sought punitive damages as evidence of the
lawsuit’s retaliatory motive.
the facts and on the law, at the time the suit was dock-
eted in the clerk’s office, and that the institution of the
civil action was not an abuse of the civil court’s proc-
esses undertaken for the purposes of harassment.’’ The
judge’s definition of ‘‘reasonable basis’’ is contrary to
Board precedent. The Board has consistently inter-
preted 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 re-
solving the unfair labor practice issue, proceeds to re-
solving whether the respondent/plaintiff acted with a
retaliatory motive in filing the lawsuit. Summitville
Tiles, 300 NLRB 64, 65 (1990); Machinists Lodge 91
(United Technologies), 298 NLRB 325, 326 (1990),
enfd. 934 F.2d 1288 (2d Cir. 1991); and Phoenix
Newspapers, 294 NLRB 47, 49 (1989).
Here, the Union’s lawsuit is no longer pending, and
the Union did not prevail. Thus, the merits of the suit
have already been adjudicated against the Union, and
we need only decide whether the lawsuit was filed
against Glenn for a retaliatory reason.1 On the basis of
the facts before us, we find that the Union did file the
lawsuit against Glenn with a retaliatory motive.
The Union asserts that it filed a civil lawsuit against
Glenn because he allegedly made false statements that
the Union discriminated against Glenn and other black
members by refusing to refer them for employment
based on their race. The Union’s state court complaint
specifically alleged that Glenn made false statements
in charges filed with the EEOC/IDHR and the NLRB.
Other members of the Union filed EEOC/IDHR
charges alleging similar discriminatory referral prac-
tices. Glenn, however, was the only member to file a
charge with the NLRB and Glenn was the only mem-
ber against whom the Union filed a civil lawsuit. Thus,
the evidence supports a finding that the Union singled
out Glenn for punishment because Glenn filed a charge
with the Board.
As further evidence of the lawsuit’s retaliatory mo-
tive, we rely on the fact that the Union’s lawsuit
against Glenn sought punitive damages.2 In fact, the
Union sought a total of $200,000 in damages, even
though the Union’s complaint stated that it expended
only approximately $15,000 in legal fees to defend the
charges filed by Glenn.
Accordingly, we find that the Union filed its lawsuit
against Glenn without a reasonable basis and for retal-
iatory reasons. Therefore, we find that the Respondent
Union, by initiating and maintaining the meritless law-
suit against Glenn, violated Section 8(b)(1)(A) of the
Act.
CONCLUSION OF LAW
By initiating and maintaining a civil action for libel
and slander against Thomas C. Glenn in retaliation for
his protected concerted activity, the Respondent, Inter-
national Union of Operating Engineers, Local 520,
AFL–CIO, violated Section 8(b)(1)(A) 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 take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent’s filing and pur-
suit of the lawsuit against the Charging Party violated
the Act, we shall order the Respondent to reimburse
the Charging Party for all legal and other expenses he
incurred in defending the Respondent’s suit, plus inter-
est as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). See Teamsters Local 776
(Rite Aid Corp.), 305 NLRB 832, 835 12 fn. 10
(1991).
ORDER
The National Labor Relations Board orders that the
Respondent, International Union of Operating Engi-
neers, Local 520, AFL–CIO, Mitchell, Illinois, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Initiating or maintaining a meritless lawsuit
against employees in retaliation for their protected con-
certed activities.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse Thomas C. Glenn for all legal and
other expenses incurred in the defense of the Respond-
ent’s state lawsuit (Case 89–L–220), in the manner set
forth in the remedy section.
1201OPERATING ENGINEERS LOCAL 520 (ALBERICI CONSTRUCTION)
3 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.’’
1 The principal docket entries in this case are as follows:
Charge filed by Thomas C. Glenn, an individual, against Respond-
ent International Union of Operating Engineers, Local 520, AFL–
CIO (the Union) on July 17, 1989; complaint issued against the
Union by the Regional Director for Region 14, on March 23, 1992;
Respondent’s answer filed on March 23, 1992; hearing held in St.
Louis, Missouri, on May 12, 1992.
2 Respondent admits, and I find, that Alberici Construction Com-
pany, Ben Hur Construction Co., and McCarthy Brothers, whose
names were added to the complaint by an amendment at the hearing,
each maintains a place of business in St. Louis, Missouri, and have
had a collective-bargaining relationship with the Respondent which
includes a provision for an exclusive hiring hall. Said employers are
engaged in the building and construction industry in the metropolitan
St. Louis, Missouri area and in fact do business both in Illinois and
Missouri. The amended complaint further alleges that each of them
performs services for customers outside the State of Missouri having
an annual value which exceeds $50,000 and each purchases goods
and materials directly from points and places located outside the
State of Missouri valued in excess of $50,000 per year. Accordingly,
these employers are engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act. The Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
3 Certain errors in the transcript have been noted and corrected.
(b) Post at its office in Mitchell, Illinois, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by Alberici Con-
struction Company, Ben Hur Construction Company,
and McCarthy Brothers, if willing, at all places where
notices to employees are customarily posted.
(d) Notify the Regional Director in writing 20 days
from the date of this Order what steps the Respondent
has taken to comply.
APPENDIX
NOTICE TO MEMBERS
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
ordered us to post and abide by this notice.
WE WILL NOT initiate or maintain a meritless lawsuit
against employees in retaliation for their protected ac-
tivities.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL reimburse Thomas C. Glenn for all legal
expenses incurred in the defense of our lawsuit (Case
89–L–220) plus interest.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 520, AFL–CIO
Michael T. Jamison, Esq., for the General Counsel.
Harold Gruenberg, Esq., of St. Louis, Missouri, for the Re-
spondent.
Thomas C. Glenn, of East St. Louis, Missouri, pro se.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at St. Louis, Missouri,
upon an unfair labor practice complaint,1 amended at the
hearing, which alleges that Respondent International Union
of Operating Engineers, Local 250, AFL–CIO,2 violated Sec-
tion 8(b)(1)(A) of the Act. More particularly, the complaint
alleges that the Respondent Union filed a libel and slander
action against the Charging Party in a state court in order to
harass him and to take reprisal against him for having filed
an unfair labor practice charge against it. The Respondent
admits that such an action was filed and that it was dis-
missed by a state court on a claim that the matters it alleged
as libelous and slanderous were privileged, inasmuch as they
were part of a case instituted by the Charging Party before
a Federal agency. However, the Respondent claims that it
had a reasonable basis in fact and in law for filing the civil
action. Respondent also asserts that its motive for doing so
was not to coerce the Charging Party in the exercise of Sec-
tion 7 rights but to recoup damages it suffered in defending
a long series of false and frivolous charges which the Charg-
ing Party had filed with both state and Federal agencies.
Upon these contentions the issues herein were drawn.3
A. The Unfair Labor Practices Alleged
Respondent, an affiliate of the International Union of Op-
erating Engineers, AFL–CIO, maintains an office at Mitchell,
Illinois, just east of St. Louis. It represents unionized operat-
ing engineers in 16 counties in Southern Illinois and, for
many years, has had a contract, covering both heavy con-
struction and highway construction, with the Southern Illinois
Contractors Association. These contracts have contained,
inter alia, exclusive referral provisions covering applicants
for employment members of the contractor’s association.
Charging Party Thomas C. Glenn was a member of the
Respondent Union from 1971 until late in 1990 and was a
member at all times material to this proceeding. In the late
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Apparently all charges filed before the Illinois commission and
the EEOC were jointly filed and jointly processed.
5 In dismissing the first charge, the EEOC Regional Director stat-
ed:
The record shows Charging Party [Glenn] was referred for
employment with the lock and dam on one occasion in 1986,
seven occasions in 1987, and two occasions in 1988. Charging
Party refused employment with lock and dam on all occasions
except the two above referenced occasions in 1988. During this
same period Charging Party was contacted for employment re-
ferral to other companies: 10 in 1986, 35 in 1987, and 8 in
1988.
The evidence shows that Respondent has approximately 2,400
operating engineers members, of which 223, 285, and 172 were
unemployed and available for work in 1986, 1987, and 1988, re-
spectively. Therefore, the total number of black union operating
engineers available for job referrals to the lock and dam were:
58 or 26.1% in 1986, 63 or 22.1% in 1987, and 44, or 25.6%
in 1988. Respondent referred to the lock and dam construction
54 operating engineers in 1986, 10 or 18.5% were black; 84 op-
erating engineers were employed in 1987, 38 or 45.2% were
black; 30 operating engineers were employed in 1988, 7 or
23.3% were black. Thus, race was not a factor in Respondents’s
referral of Charging Party and other black operating engineers.
6 Operating Engineers Local 520, and Daniel W. Ellis v. Thomas
C. Glenn, Circuit Court for the Third Judicial District, Madison
County, Illinois, Case 89-L-220.
7 Thomas v. Petrulis, 125 Ill. App. 3rd 415, 465 N.E. 2d 1059
(1984).
1980s, he associated himself with several other black mem-
bers of the Union in an informal organization calling itself
United Black Craftsmen, the purpose of which was to secure
additional referrals and employment for black members of
the Union.
Over a period of years, Glenn and other members of the
United Black Craftsmen have filed discrimination charges
against the Union with the Illinois Human Relations Depart-
ment, the U.S. Equal Employment Opportunities Commission
(EEOC),4 and the Board. They have also written letters to
the president of the International and its director of Civil
Rights and filed suit in the U.S. District Court for the South-
ern District of Illinois. In each instance they have com-
plained about the conduct of the Respondent in assertedly
failing to refer them because of race. They have yet to pre-
vail in any forum.
On June 1, 1987, Glenn filed a charge with the Illinois
Department of Human Rights and the EEOC against the Re-
spondent herein, alleging that he had 17 years of operating
experience and stating ‘‘I was not referred to employment.
I have called the Union hall on a daily basis but have not
been referred for employment to any contractor.’’ He
claimed discrimination on the basis of race, stating that ‘‘I
have not been referred to work at Alton Lock and Dam 26,’’
and stating further in his charge that other qualified minori-
ties (black and female) have not been referred for work at
the Lock and Dam 26 in proportion to their representation
in the work force. On August 27, 1987, Glenn filed an addi-
tional charge with the same agencies, alleging that he had
not been referred for steady employment following the filing
of the EEOC charge. He claimed retaliation on the part of
the Respondent. Other members of the United Black Crafts-
men filed similar EEOC charges.
On September 29, 1988, the EEOC district director issued
a determination accompanied by detailed findings of fact. He
found that there was no merit to Glenn’s charge. On Septem-
ber 11, 1989, he issued a subsequent determination dismiss-
ing the allegation of retaliatory conduct on the part of the
Respondent. With this letter came a ‘‘right to sue’’ notice,
authorizing Glenn to bring a civil action in a United States
District Court under Title VII of the Civil Rights Act of
1964 if he was dissatisfied with the EEOC determination.5
Following the issuance of this letter, a suit was instituted
against the Respondent in the United States District Court for
the Southern District of Illinois by Glenn, Peterson, and Mil-
ler based upon the matters alleged in the original EEOC
charges. The suit was dismissed for want of prosecution be-
cause the plaintiffs did not achieve service of process upon
the Respondent.
On December 14, 1988, Glenn filed a charge with the
Board against the Respondent in which he alleged that ‘‘the
above-named labor organization by its officers, agents and
representatives, since on or about June 4, 1988, has re-
strained and coerced employees of various employers in
Southern Illinois in the exercise of rights guaranteed to them
in Section 7 of the Act as amended by failing to properly
refer Roy Miller, R. L. Paterson, and Thomas Glenn.’’ The
essence of the charge filed with the Board was a refusal on
the part of the Respondent to refer named individuals therein
on the basis of race. Two weeks later the charge was dis-
missed by the Regional Director and, contrary to the assump-
tion of the Charging Party, this dismissal was not appealed
to the Office of Appeals.
On March 3, 1989, the Respondent herein filed a civil ac-
tion against6 Glenn in a state court which is the gravamen
of the complaint in this case. This action, filed by both the
Respondent and its business agent, Daniel W. Ellis, alleged
that Glenn was guilty of libel and slander by reason of the
charges he had filed with both the EEOC and the Board. The
complaint asked for both civil and exemplary or punitive
damages for the Union and for Ellis.
On August 23, 1991, the circuit court, after entertaining
briefs and argument, granted Glenn’s motion and dismissed
the complaint without going into the factual merits of the
libel and slander allegations. The court relied upon an Illinois
case, decided by the intermediate appellate court for the Sec-
ond Illinois Appellate District, which held that charges filed
before the EEOC enjoy an absolute privilege from civil ac-
tions for libel and slander.7 The trial court in Glenn’s case
extended this holding to cover NLRB charges as well.
On July 17, 1989, while the state court libel action was
still pending, Glenn filed the unfair labor practice charge in
this case. It was held in abeyance by the Regional Director
pending the outcome of the state court case. After the state
court case was dismissed, the complaint herein was issued,
alleging that the Respondent was harassing Glenn in the ex-
ercise of his Section 7 rights by filing a civil suit in retalia-
tion for Glenn’s action in filing the unfair labor practice
charge in the earlier Board case.
B. Analysis and Conclusions
There is little disagreement over the essential operative
facts of this case, since, for the most part, they consist of
charges, pleadings, orders, and administrative actions which
are matters of public record. The principal question before
the Board is what construction should be placed upon these
1203OPERATING ENGINEERS LOCAL 520 (ALBERICI CONSTRUCTION)
8 Powers Systems, 239 NLRB 445 (1978).
9 NLRB v. Powers Systems, 601 F.2d 936 (7th Cir. 1979).
documents. The General Counsel argues that the appropriate
standard derived is whether the Respondent’s lawsuit in the
Circuit Court was without a reasonable basis or without
merit and whether or not the Respondent filed the suit out
of a retaliatory motive, citing the Supreme Court’s decision
in Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983).
He further argues that the decision of the state court dismiss-
ing the civil action should foreclose the question of reason-
able basis unless there is a cogent explanation for the con-
trary. In agreeing with these contentions, I am not required
to accept automatically the findings of the state court in eval-
uating a reasonable basis claim in a Board case, since to do
so would constitute a return to the Powers doctrine,8 a rule
enunciated in a case which was not only set aside in the Fed-
eral circuit in which the instant case arose9 but was also re-
pudiated by the Supreme Court in Bill Johnson’s.
Reasonable basis for filing a lawsuit is not the equivalent
of winning the suit. It means that the plantiff had a triable
claim, both on the facts and on the law, at the time the suit
was docketed in the clerk’s office, and that the institution of
the civil action was not an abuse of the civil court’s proc-
esses undertaken for purposes of harassment. The order of
the circuit judge in Local 520 v. Glenn, supra, dismissing al-
legations by the Respondent herein that it had been libeled
and slandered by Glenn, never addressed the factual merits
of those allegations. The decision turned on a question of
privilege, a determination by that court that, even if Glenn
had libeled and slandered the Respondent, the latter was not
entitled to relief in Illinois for reasons of public policy more
weighty than the need to redress citizens for injury to their
reputations. Both the claim in that case and the record in this
case reflect that, on several occasions before at least two
public agencies and perhaps elsewhere, Glenn made unsub-
stantiated charges of racial discrimination against the Re-
spondent herein. These charges were under oath and were
found by public agencies on at least two occasions to be
without merit. At least some of those allegations were also
admitted by Glenn, in his testimony in this case, to have
been false in fact. Such a record does not disclose an unrea-
sonable case on its facts but outlines rather a substantial one
which the circuit court, for reasons stated in its order, elected
not to address.
As to whether the Respondent’s civil action was unreason-
able as a matter of law, the Respondent presented both to the
circuit court and to the Board a set of precedents which gave
it a triable if not a winnable case on the law. In arriving at
the result announced in its order, the circuit court elected to
follow a precedent from another Illinois appellate circuit and
extended the precise holding of that precedent to cover Board
cases as well as EEOC cases. In so doing, the circuit judge
was far less certain of the legal merits of his ruling than is
the General Counsel. As he stated in his opinion:
The Court feels that it could bootstrap a decision sup-
porting either side of this controversy to several of the
decisions which have been submitted as precedent. The
Court feels it must look to the reason for the privilege,
which is to protect those who seek to address wrongs
in appropriate forums. Admittedly, there are those who
argue that frivolous, unnecessary, and slanderous claims
should not be accorded that quasi-judicial privilege. The
Court simply cannot come to that conclusion in this
case from the facts that it has before it. Giving the very
best interpretation to the Complaint as filed by the
plaintiffs, the Court feels it must grant the Motion to
Dismiss.
Such language from the trier of the law does not define an
unreasonable legal claim on the part of the Respondent but
a very real claim which, after careful analysis, simply failed
to persuade the court. The fact that the Respondent did not
elect to appeal the dismissal of its case does not in any way
detract from the reasonableness of its claim but was simply
a pragmatic determination not to throw good money after
bad. Such is the fate of much litigation.
Having determined that the case filed by the Respondent
against Glenn in the Third District Circuit Court of Madison
County, Illinois, was reasonable both as to fact and law, it
is appropriate but not necessary to address element of moti-
vation which the General Counsel must establish as being re-
taliatory. Over a long period of time, both Glenn and others
with whom he was closely allied had engaged in a campaign
of filing false and frivolous charges against the Respondent,
the net effect of which was to cost the Respondent and its
membership a substantial amount of money. The allegation
in its civil action was that the Respondent had, at the outset
of that litigation, spent over $15,000 in legal fees and in sal-
aries of its officers and employees in defending against
Glenn’s charges. While that figure was not formally estab-
lished, either in that proceeding or in this one, it is clear that
the expense of defending oneself against multiple charges,
which could have serious repercussions, was substantial. The
Respondent’s current business agent, Daniel R. Gruber, with-
out mentioning a precise figure, testified without contradic-
tion to that effect. The fact that the Respondent also asked
for exemplary or punitive damages in its civil action does not
add an illegal motive to its reasonably grounded cause of ac-
tion, since paying exemplary or punitive damages is a regular
consequence of committing a willful tort, both under Illinois
law and tort law generally. Adding such a commonplace de-
mand to the ad damnum clause of a civil complaint does not
transform a lawful response to a groundless campaign of har-
assment into a violation of the Act. A finding of privilege
in a libel action should not serve to invoke the processes of
this Agency, since Section 7 of the Act does not confer upon
anyone a license to slander.
CONCLUSIONS OF LAW
1. Alberici Construction Company, Ben Hur Construction
Company, and McCarthy Brothers are, and at all times mate-
rial, have been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent International Union of Operating Engineers,
Local 520, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to sustain his burden of
proof to establish that the Respondent violated Section
8(b)(1)(A) of the Act.
[Recommended Order for dismissal omitted from publica-
tion.]