Power Systems, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1978

239 N.L.R.B. 445 (N.L.R.B. 1978)

Power Systems. Inc. and John E. Sanford. Case 38-
CA-3371
November 24. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MI MBFERS PFNF IIO
AND TRI iESDAI F
Upon a charge filed on September 19, 1977. by
John E. Sanford, an individual, the General Counsel
of the National Labor Relations Board. by the Offi-
cer-in-Charge for Subregion 38, issued a complaint
on November 28, 1977, against Power Systems, Inc.,
herein called Respondent. The complaint alleges that
Respondent engaged in certain unfair labor practices
in violation of Section 8(a)(4) and (1) of the National
Labor Relations Act, as amended. Respondent filed
an answer to the complaint, in which it admitted cer-
tain of the allegations, but denied the commission of
any unfair labor practices.
On March 20, 1978, Respondent, the General
Counsel, and John E. Sanford (Charging Party) en-
tered into a stipulation of facts and filed a motion to
transfer this proceeding directly to the Board. All
parties to the stipulation waived the usual proceed-
ings before an Administrative Law Judge, agreed
that the stipulation of facts, and the exhibits attached
thereto, would constitute the entire record herein,
and requested the Board to make findings of fact and
conclusions of law and to issue an appropriate deci-
sion and Order. On May 10, 1978, the Board issued
an Order which transferred the proceeding to the
Board, approved the stipulation, and set a date for
the filing of briefs by the parties. Thereafter, the
General Counsel and Respondent each filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein.
as stipulated by the parties, including the briefs, and
makes the following:
FINDINGS OF FAC(
i. THE BUSINESS OF THE RESPONDENI
Respondent, a Delaware corporation, with its of-
fice and place of business located at Schaumburg,
Illinois, is engaged in the business of constructing
Respondent has requested oral argument. This request is hereby denied.
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties
POWER SYSTEMS, INC
and maintaining electric power plants. During the
past 12 months, a representative period, Respondent
purchased and caused to be transferred and deliv-
ered to its jobsites located in the State of Illinois
goods and materials valued in excess of $50,000
which were transported to said jobsites directly from
States other than the State of Illinois. Respondent
has admitted, and we find, that Respondent is, and
has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2). (6), and (7) of the Act, and we find that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11 I lF AI.IF (iF.) UNFAIR L ABOR PRACTICES
A. Stipulated Facts
John E. Sanford was employed by Respondent at
its jobsite at the Dresden Nuclear Power Station
from November 6 through 15, 1974. Throughout
Sanford's period of employment, Respondent was
engaged in the disassembly of one of the turbine gen-
erators at the Dresden Nuclear Power Station, in
preparation for its inspection and repair. Respondent
had contracted with Commonwealth Edison Compa-
ny, owner of the Dresden facility, to perform the di-
sassembly work, which work began on November 6,
1974, and was completed on March 7, 1975. Thereaf-
ter, Respondent released its employees and removed
its equipment and supervisory staff from the jobsite.
To perform the turbine disassembly work, Respon-
dent employed. among others, a millwright crew con-
sisting of one foreman and four journeymen. Each of
the millwrights was employed by Respondent upon
referral from a hiring hall maintained by Local 1092,
Carpenters and Joiners of America (hereinafter the
Union). Sanford, one of the journeymen millwrights,
also served as the union steward.
On November 15, 1974, Respondent discharged
Sanford, alleging as the reasons therefor that Sanford
had failed to perform his assigned work, and that he
had engaged in various unprotected actions which
disrupted the job and caused it to fall seriously be-
hind schedule.
On November 29, 1974, Sanford filed a charge
with the Board in Case 38-CA-2183, alleging that he
was discharged "because of his Union activity re-
garding safety radiation dosage, contract, improper
tools."
Following an investigation of the merits of the
charge in Case 38-CA-2183, the Officer-in-Charge of
Subregion 38 issued a letter to Sanford, dated Janu-
ary 7, 1975, in which he refused to issue a complaint.
The letter concluded that "there is insufficient evi-
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence to prove that the employer discharged [San-
ford] as a result of [his] engaging in conduct protect-
ed by the National Labor Relations Act." The letter
also noted that during his short term as steward, San-
ford had failed to file grievances as required by the
contract, had made statements and taken actions in-
consistent with his position as a union representative,
had frequently stopped work for lengthy periods to
complain about tools, and had failed to file a griev-
ance over his own discharge.
Sanford appealed the Officer-in-Charge's refusal
to issue a complaint. On February 28, 1975, the Of-
fice of Appeals of the General Counsel deferred dis-
position of the appeal pending the outcome of a
grievance which had eventually been filed over
Sanford's discharge. The grievance, however, was
dropped by the Union in March 1975, and thus, the
Office of Appeals resumed consideration of
Sanford's appeal by remanding the case to the Subre-
gional Office for additional investigation. Thereafter,
on May 9, 1975, the Office of Appeals issued a letter
to Sanford denying his appeal "substantially for the
reasons set forth in the officer-in-charge's letter of
January 7, 1975."
Approximately 1-1/2 years later, on February 11,
1977, Sanford filed a complaint against Respondent
with the Occupational Safety and Health Adminis-
tration (OSHA), alleging that he "was fired in No-
vember 1973 [sic] by Power Systems, while steward,
for calling in Atomic Energy Comm. and of safety
complaints, other union matters. Since then Com-
monwealth Edison has blackballed me from this job-
site. 'For previous action.' At Dresden and Brook-
field." Sanford's OSHA complaint was investigated
and later dismissed by representatives of the United
States Department of Labor.
Following dismissal of Sanford's OSHA com-
plaint, Respondent became aware of other charges
filed by Sanford against labor organizations and
other employers. Pursuant to a Freedom of Informa-
tion Act (FOIA) request by the Respondent dated
August 12, 1977, a list of case names and numbers
resulting from charges filed by Sanford with the
Board was sent to Respondent. Respondent thereaf-
ter became aware of other charges filed by Sanford,
and, pursuant to a further FOIA request, the Board
on December 21, 1977, sent the Respondent another
list of cases resulting from charges filed by Sanford,
including case numbers, charged parties, types of
allegations, dates of filing, dates of closing, and final
dispositions. The lists reveal that since November
1967, Sanford has filed unfair labor practice charges
in 46 different cases. Of those 46 cases, 30 involved
charges against a labor organization, and the remain-
der involved charges against an employer. In addi-
tion, of the 46 separate cases, the charges were with-
drawn in 27 and were dismissed in 13. Four cases
were settled, one case led to a Board Order, and one
(this case) is pending. However, aside from the
charge filed in Case 38-CA 2183, Sanford has filed
only one other charge against Respondent, that being
the instant case.
Also following the dismissal of Sanford's OSHA
complaint, Respondent became aware of the fact
that, contrary to customary practice at Subregion 38,
employees of Subregion 38 would not travel in the
investigation of charges filed by Sanford until San-
ford personally appeared at the Subregional Office to
provide an affidavit in support of his allegations. The
stated reason for this special procedure was the num-
erous charges which Sanford had filed, the vast ma-
jority of which did not lead to the issuance of a com-
plaint by the General Counsel.
On September 6, 1977, Respondent filed a civil
complaint against Sanford in the Circuit Court of
Cook County, Illinois. The complaint alleged that
Sanford had initiated the charges with the Board in
Case 38-CA-2183, as well as the OSHA complaint,
without probable cause and for the purpose of ha-
rassing Respondent, thereby causing the Respondent
to incur legal fees amounting to $4,671.51 to defend
against the Board charges and $2,356.20 to defend
against the OSHA complaint. The lawsuit demanded
judgment in the amount of $7,037.71, the total
amount of legal fees incurred in defending against
the two nonmeritorious cases filed by Sanford, as
well as an order against Sanford permanently enjoin-
ing him from filing cases against the Respondent
with the courts and administrative agencies of the
United States Government and the several States of
the United States. 2
On November 14, 1977, the Respondent filed a
first amended complaint in the above-described civil
lawsuit, alleging that Sanford's filing of the NLRB
and OSHA charges "were wrongful and malicious
civil proceedings brought before Administrative
Boards, and that said wrongful instigation of pro-
ceedings by [Sanford] was willful, wanton, malicious,
harassing, and vexatious." Respondent requested the
same relief as in the original complaint.
On December 20, 1977, the Respondent further
* Prior to the filing of the civil complaint. the Respondent sought advice
from Subregion 38 and the General Counsel's representatives in Washing-
ton. D.C.. concerning the legality of such a lawsuit under the Act. Subregion
38 declined to give the Respondent such an advisory opinion, but did advise
it of the existence of the Board's decision in Local 138, International Union
of Operating Engineers, AFL-CIO (Charles S. Skura). 148 NLRB 679 (1964)
General Counsel's representatives in Washington, D.C., also declined to
give such an advisory opinion, but did advise the Respondent of the exis-
tence of the Board's decision in Clyde Taylor, d/b/a Clyde Taylor Company,
127 NLRB 103 (1960).
446
POWER SYSTEMS. INC.
amended its complaint by deleting its request for in-
junctive relief against Sanford.
B. Contentions of the Parties
The General Counsel contends that the
Respondent's civil lawsuit discriminates against San-
ford in violation of Section 8(a)(4) and (1) of the Act,
because the Respondent seeks a monetary award
from an employee whose only "offense" was the fil-
ing of a charge with the Board. The General Counsel
asserts that there is no evidence that Sanford filed
charges against the Respondent with malice and
without probable cause because at the time he filed
the charge he was in a position similar to countless
others who have filed charges with the Board. Gener-
al Counsel further contends that, regardless of
whether Sanford filed his charges with malice or
without probable cause, he would not lose the pro-
tection of the Act unless he filed charges which were
"willfully false." Finally, General Counsel asserts
that the Respondent's civil lawsuit is not privileged
by the Board's policy in Clyde Taylor, d/b/a Clyde
Taylor Company,3 of accommodating its processes to
the normal right of all parties to resort to the civil
courts for an adjudication of their claims. According
to the General Counsel, the Clyde Taylor doctrine
does not encompass lawsuits which attack the heart
of the Board's processes, such as the right of individ-
uals to file charges, which are brought to further ille-
gal objectives.
Respondent contends that the filing of its civil law-
suit against Sanford for "wrongful use of civil pro-
ceedings" was properly and lawfully based upon a
reasonable belief in its merits under generally recog-
nized principles of tort law, and that the suit is prop-
erly before the only tribunal available to Respondent
to hear and decide its claim. Respondent asserts that
Sanford's conduct over the years in filing numerous
nonmeritorious charges with the Board against Re-
spondent and others, combined with the Subregional
Office's implementation of special procedures to
handle the investigation of charges filed by Sanford,
indicates that Respondent filed its lawsuit in good
faith and solely to obtain redress for damages inten-
tionally caused by Sanford. Respondent further con-
tends that its civil lawsuit is valid under Clyde Taylor,
supra, because it was filed in a good-faith attempt to
assert well-established legal rights, and not for an un-
lawful objective. Finally, Respondent contends that
its lawsuit is permissible according to the Supreme
Court's recent decision in Sears, Roebuck and Co. v.
San Diego County District of Carpenters.4 because the
127 NLRB 103 (1960)
civil lawsuit is concerned solely with Sanford's mo-
tive in filing his charges with the Board, not with the
legal merits of his claim against the Respondent, and
because the issue of Sanford's motive in filing his
charges could not have been raised before the Board.
C. Analysis and Conclusions
The National Labor Relations Act, as amended,
was enacted by Congress in order to prescribe the
legitimate rights of employees and employers in their
relations affecting commerce, and to provide an or-
derly and peaceful procedure for the prevention of
interference by either with the legitimate rights of the
other.5 To enforce the provisions of the Act, the Na-
tional Labor Relations Board was created and given
the responsibility of preventing any person from en-
gaging in any unfair labor practice affecting com-
merce. The Board, however, cannot initiate its own
processes but must rely on charges filed by individ-
ual persons. Section 10(b) of the Act states, "When-
ever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board
. . . shall have power to issue and cause to be served
upon such person a complaint stating the charges in
that respect .... " In order to insure that all persons
who wish to file unfair labor practice charges will be
free from any coercion against filing such charges,
Congress included Section 8(a)(4) in the Act, which
provides that it shall be an unfair labor practice for
an employer "to discharge or otherwise discriminate
against an employee because he has filed charges or
given testimony under [the] Act."6 The broad lan-
guage contained in Section 8(aX4) has been inter-
preted as being "consistent ... with an intention to
prevent the Board's channels of information from
being dried-up by employer intimidation of prospec-
tive complainants and witnesses .... " 7 The Board
has consistently given an expansive scope to the pro-
tections afforded by Section 8(a)(4), thereby confirm-
ing the crucial importance of that section to the ef-
fective operation of the National Labor Relations
Act. The Supreme Court has approved of the Board's
expansive interpretation of Section 8(a)(4) of the
Act.8 Thus, the Board has found that Section 8(a)(4)
protects not only employees, 9 but supervisors 10 and
498 SCt 1745, 83 LC ' 10.582. (May 15, 1978)
Labor-Management Relations Act. Sec. 1(b) (1947)
b See Nalsh v. Florida Industrial Commission. 389 U.S. 235. 238 (1967)
John Hancoak M.utual life Insurance Co v. N.L.R B. 191 F.2d 483. 485
(D.C. Cir.. 1951).
NL.R.B '. Scrivener, db/a AA Electric Co.. 405 U.S. 117 (1972);
N.L.R B. v. Industrial Union of Marine & Shiphuilding Workers of America.
AFL CIO. 391 U.S 418 (1968).
9 Everage Brothers Market, Inc., 206 NL.RB 593 (1973): First National
Bank & Trust (C., 209 NLRB 95 (1974).
Io General Nutrition Center, Inc. 221 NL RB 850. 858 (1975).
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job applicants " as well. The Board has also found
conduct to be violative of Section 8(a)(4) even where
the conduct did not directly affect terms and condi-
tions of employment." In addition, the Board has
construed Section 8(b)( 1)(A) of the Act as extending
protection similar to that provided by Section 8(a)(4)
to persons who file charges against labor organiza-
tions.'3
It is this background of broad interpretation given
Section 8(a)(4) against which we must analyze Re-
spondent's conduct in the instant case. Respondent
originally filed a civil complaint against Sanford
seeking the recovery of legal fees incurred by it in
defending against charges filed by Sanford with the
Board and OSHA. In addition, Respondent sought
to permanently enjoin Sanford from filing charges
against it with administrative agencies and courts of
the United States and of the several States. Respon-
dent alleged in its original complaint that Sanford
had filed charges with the Board without probable
cause and for the purpose of harassing Respondent,
and, in its first amended complaint, that Sanford had
filed charges with the Board which were wrongful,
malicious, willful, wanton, harassing, and vexatious.
Respondent based its complaint and amended com-
plaint on the fact that Sanford's charges, both with
the Board and OSHA, were found to be nonmeritori-
ous, and on the fact that Sanford had filed numerous
nonmeritorious unfair labor practice charges with the
Board against other employers and labor organiza-
tions. Respondent also relied on evidence of a special
procedure used by the Subregional Office to investi-
gate charges filed by Sanford.
The record reveals that prior to his discharge by
Respondent in November 1974, Sanford had been
serving as a union steward on Respondent's con-
struction project. During his short tenure with Re-
spondent as an employee and steward, Sanford had
made numerous complaints to Respondent in vigor-
ous pursuit of his duties as steward. He was informed
at the time of his discharge that one of the reasons
for his termination was the disruption of the jobsite
arising out of his various unprotected actions. Short-
ly after his discharge, Sanford filed a charge against
Respondent in Case 38-CA-2183.
Having been informed that one of the reasons for
his discharge involved conduct engaged in while
serving as a union steward, it was not unreasonable,
Lamar Creamery Company. 115 NLRB 1113 (1956).
12 See Howard Manufacturing Co., Inc., 231 NLRB 731 (1977). wherein it
was held that an employer violated Sec. 8(a)4) by refusing to pay witness
fees and mileage allowances to employees it had suhpenaed to appear at a
Board hearing.
13 Local 1.8, Internalional Union of Operating Engineers (Charles S. Sku-
ra), 148 NLRB 679 (1964): see N L.R B. v. Industrial Union of Marine Ship-
building Workersr, supra.
in our view, for Sanford to entertain a belief that he
had been discharged for having engaged in activities
protected by the Act. Indeed, even the Officer-in-
Charge's letter dismissing Sanford's charge alleging
that his discharge violated the Act indicates the diffi-
culties in differentiating between Sanford's protected
and unprotected activities. It is an understatement to
say that the Board's processes have been invoked by
individuals under circumstances far less suggestive of
illegal activity by a charged party. Thus, we have
been presented with almost no evidence to establish
that Sanford lacked probable cause in filing the
charge in Case 38-CA-2183, or that he filed that
charge for the purpose of harassing Respondent.
Nevertheless, Respondent filed its complaint and
amended complaint against Sanford alleging that
Sanford had, in fact, filed the charge without proba-
ble cause and for the purpose of harassing Respon-
dent. The evidence relied upon by Respondent to
support its lawsuit, however, negates its assertion
that it had reasonable grounds upon which to file the
lawsuit seeking redress for what it perceived as inten-
tional abuse and damage caused by Sanford. First,
the fact that Sanford has filed charges with the Board
against other employers and labor organizations in
46 different cases over a period of I years and that
the vast majority of such charges were deemed to be
nonmeritorious, is, in our view, no indication of har-
assment by Sanford, inter alia, because Sanford filed
only one charge against Respondent with the Board.
Second. the fact that Sanford filed a complaint with
OSHA in February 1977 regarding his November
1974 discharge by Respondent is also no indication
that Sanford's charge with the Board regarding the
same November 1974 discharge was filed without
probable cause or for the purpose of harassing Re-
spondent. The allegations, the applicable law, and
the charged parties in the OSHA complaint, differ
from the allegations, the applicable law, and the
charged parties in Sanford's charge filed with the
Board. In any event, the fact that the General Coun-
sel had determined that Respondent had not violated
the National Labor Relations Act by discharging
Sanford in no way affects Sanford's right to file
complaints under other Federal, state, or local stat-
utes alleging that the same discharge violated those
laws. Third, the fact that the Subregional Office had
instituted a special procedure to investigate charges
filed by Sanford is no indication that Sanford filed
his charge in Case 38-CA-2183 without probable
cause or to harass Respondent, inasmuch as there is
no evidence to indicate that Sanford failed to cooper-
ate with the Subregional Office in its investigation of
the charge, and since the "special procedure" was
actually instituted subsequent to Sanford's filing of
448
POWER SYSTEMS, INC.
charges against Respondent in Case 38-CA-2183.
Fourth, the fact that Sanford's charge in Case 38
CA-2183 ultimately was deemed by the Subregional
Office to be nonmeritorious does not establish that it
was filed without probable cause or to harass Re-
spondent; indeed, we have repeatedly held that an
employer that discharges an employee after that
employee's charge is deemed to be nonmeritorious,
or after a trial on the merits fails to establish the
validity of the charge, nevertheless violates Section
8(a)(4) of the Act.'4
Moreover, Respondent's assertion that it did not
seek to deprive Sanford of his right to resort in good
faith to the Board is contradicted by the original
complaint filed by Respondent in state court, in
which it sought to permanently enjoin Sanford from
filing charges with any Federal or state agencies or
courts. Although the request for an injunction was
subsequently dropped by Respondent in a second
amended complaint, the complaint and amended
complaint are clear evidence that the true purpose
behind Respondent's lawsuit was to penalize Sanford
for asserting his rights under the National Labor Re-
lations Act and to prevent him from further asserting
those rights under that or any other Federal or state
statute.
Thus, based upon a single charge filed against it by
an employee who had a reasonable basis upon which
to form a belief that he had been unlawfully dis-
charged, Respondent filed its lawsuit seeking legal
fees incurred in defending against that single charge
as well as a permanent injunction to prevent Sanford
from ever filing another charge against it. In our
view, Respondent had no reasonable basis upon
which to assert that Sanford's single charge with the
Board was filed without probable cause or to harass
it, and the nature of its lawsuit was clearly aimed at
penalizing Sanford for having utilized the Board's
processes against Respondent. In addition, Respon-
dent's lawsuit placed its employees on notice that if
an employee files charges with the Board which are
deemed by the General Counsel to be nonmeritori-
ous that employee is subjecting himself to the possi-
bility of a devastating lawsuit. In the instant case,
Sanford faced the prospect of having to reimburse
Respondent for thousands of dollars in legal expen-
ses if the state court upheld Respondent's claim. Of
even more significance, however, is the fact that San-
ford incurred immediate expense by having to retain
private legal counsel to defend himself against Re-
spondent's lawsuit. Thus, even if Respondent's law-
suit is dismissed by the state court, Sanford will have
14 See Acme Paper Bor ('ompani. 201 NI RB 240. 246h 119731. Uaternalln
Industries. Inc. 91 NLRB 1041, 1043. fn. 11950))
suffered a significant property loss as a direct conse-
quence of his having filed a charge with the Board.'
Therefore, just as it has been found to be a violation
of Section 8(b)(I)(A) for a union to fine a member
for filing charges with the Board,' 6 we find that Re-
spondent's lawsuit is an attempt to penalize Sanford
for filing charges with the Board and, thus, Respon-
dent has discriminated against Sanford in violation
of Section 8(a)(4) and (I) of the Act.
Respondent further asserts that the Board's deci-
sion in Clyde Taylor, supra, and its progeny, preclude
us from finding any unfair labor practice for the fil-
ing of a lawsuit. In Clyde Taylor, the Board found
that an employer violated Section 8(a)(1) of the Act
by threatening to file a libel suit against certain em-
ployees who had filed unfair labor practice charges
against that employer. However, the Board refused
to find an 8(a)( 1) violation for the employer's obtain-
ing of a state court injunction banning peaceful pick-
eting by the union. The Board reasoned that it
'should accommodate its enforcement of the Act to
the right of all persons to litigate their claims in
court, rather than condemn the exercise of such right
as an unfair labor practice." '7 Since Clyde Tarlor,
the Board has affirmed the principle that the filing of
a civil lawsuit by an employer or labor organization
is not a violation of the Act, although in each such
case the lawsuit was not a tactic calculated to restrain
employees in the exercise of their rights under the
Act.'8 The Board has, on several occasions, departed
from a literal application of Clyde Taylor where the
civil lawsuit was brought in order to pursue an un-
lawful objective. Although each of those cases dealt
' Such a loss is clearly comparable to losing one's job or being demoted
for having filed charges with the Board, which clearly violates the Act In
addition. Sanford's loss is far more serious than the loss of benefits caused
by a union's removal of a steward who had filed charges against that union
which h;s also been found to violate the Act See General Amnerilan Iruan
lprtatutm (orporatton. 227 NLRB 1695 (1977); Amalgamated Meat ('utters
and RButher iWorkmtlen of Nsorh America, 4malgamared Fasad Ertphiive.s
Inion Locali 5(i .4FL. ('10 i(natinl Tea ( tmpuanr). 181 NLRB 773 ( 1970)
6 harlesi Skura. 148 NLRB 679.
C(lide, Tayulr, 127 NLRB at 109
'I See S E Naihos Mllarci (Corp. 229 NLRB 75 (1977) (employer', slan-
der suit against an employee arose out of statements made by the employee
about the employer during union organtzational campaign); Retail ('lers
, 'nion I.la
1
77() (chartered hb, Retail CI (rlTs International A ssociatuon, .4 l.
(C10 (Hughev slarketrs. Inc . 218 NL.RB 680 (1975) (union lawsuit against
employer tot cnfirm arbitrator's award upholding illegal 8(e) clause brought
in good faith and not tot restrain emploaer or employees). Lot ,4ngel/e Bauial-
inm & C(onntructron irades (ouncil. 4FL CIO (Noble Electri. 217 NLRB
946 (1975) (union lawsuit charged employer with violating contractual sub-
contracling clause); Frank I tsceglia and I tincer Visceglia ta Peddie Build-
tnys, 203 Ni.RB 265 (1973) (employer sought Inunction to end union pick-
eting)l: L nred .4ir raft Corporatton (Pratt and Whitney Division), 192 NLRB
382 ( 1971 ) (employer lawsuit sought damages for tortious acts committed by
union members during strike: employer's offer to withdraw lawsuit if union
dropped unfair labor practice charges was made in good faith and not to
restrain or coerce employees) See also Bergman v. N.L.R B., 577 F.2d 100
(9th ( r. 1978) (employer lawsuit against union for breach of contract per-
mitted where lawsuit was brought In good faith and was not maliciaous or an
abuse tof process).
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a lawsuit brought by a labor organizations 9 we
see no reason to apply a different standard to an
employer that institutes a civil lawsuit with an unlaw-
ful objective against an employee. Since we have
found that Respondent had no reasonable basis for
the filing of its lawsuit, we conclude that the lawsuit
had as its purpose the unlawful objective of penaliz-
ing Sanford for filing a charge with the Board, and
thus, depriving him of, and discouraging employees
from seeking, access to the Board's processes. There-
fore, Clyde Taylor does not preclude us from finding
an unfair labor practice against Respondent for the
filing of its civil lawsuit.
Accordingly, we find that Respondent, by filing a
complaint and amended complaint in the Circuit
Court of Cook County, Illinois, for the recovery of
legal expenses from, and for an injunction against,
John E. Sanford, who had filed a charge with the
Board against that Respondent, violated Section
8(a)(4) and (1) of the Act.2 0
CONCLUSIONS OF LAW
I. Power Systems, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By filing a complaint and an amended com-
plaint in the Circuit Court of Cook County, Illinois,
seeking the recovery of legal expenses from, and an
injunction against, John E. Sanford, alleging therein
that Sanford initiated charges against Respondent
with the National Labor Relations Board which were
wrongful, malicious, without probable cause, and
brought for the purpose of harassing Respondent,
Respondent has violated Section 8(a)(4) and (1) of
the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
We have found that Respondent has engaged in
certain unfair labor practices, and thus we shall order
19 United Stanford Employees, Local 680. Service Emplo/ees International
Union, AFL ('CIO (Leland Stanford Junior University,). 232 NLRB 326 1977):
Television Wisconsin, Inc.. 224 NLRB 722 779 780 (1976); Internori,nal Or
ganization of Maslers, Mates and Pilots. AFL ('10 ((Cve Tankerl. 224
NLRB 1626 (1976), affd. 575 F.2d 896 (D.C. £'lr. 1978).
20 In reaching our decision herein, we note that the complaint does not
allege, nor does General Counsel contend, that Respondent's lawsuit. inso-
far as it seeks the recovery of the legal expenses incurred in defense of
Stanford's OSHA complaint, violates the National Labor Relations Act
Hence, we defer consideration of that question until such time as it is prop-
erly before us. In addition, since we have found that Respondent had no
reasonable basis for bringing its lawsuit against Sanford, we deem it unnec-
essary to reach the issues raised by the Supreme ('ourt's recent decision in
Sears. Roebuck d Co v. San Diego ('ount Di)srrirt ofC (arpenteirs. vupra
it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
We have found that Respondent filed a civil com-
plaint and amended complaint in the Circuit Court
of Cook County, Illinois, seeking the recovery of le-
gal expenses from, and an injunction against, John E.
Sanford, alleging therein that Sanford had initiated
charges against Respondent with the National Labor
Relations Board which were wrongful, malicious,
without probable cause, and brought for the purpose
of harassing Respondent. By such conduct, the Re-
spondent has discriminated against its employees in
the exercise of their right to file charges under the
National Labor Relations Act, as amended, and has
interfered with, restrained, and coerced its employees
in the exercise of their rights guaranteed in Section 7
of the Act. In order to dissipate the effect of the Re-
spondent's unfair labor practices, we shall order Re-
spondent to cease and desist from prosecuting its
complaint and amended complaint against John E.
Sanford which arose out of Sanford's filing of unfair
labor practice charges with the Board, and we shall
require Respondent to withdraw the complaint and
amended complaint which it filed against Sanford.2 '
In addition, in order to place Sanford in the position
he would have been absent Respondent's 8 (aX4) and
(I) violations, we shall order Respondent to make
Sanford whole for all legal expenses he incurred in
the defense of Respondent's lawsuit.22
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Power Systems, Inc., Schaumberg, Illinois, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Prosecuting its complaint and amended com-
plaint, styled as Power Svstems, Inc., v. John E. San-
ford, No. 77MI-350175 (Circuit Court of Cook
County, Ill.), which arose out of Sanford's filing of
unfair labor practice charges with the National La-
bor Relations Board.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw its complaint and amended com-
plaint, styled as Power Svsterms, Inc., v. John E. San-
'* See llellsln BWi4-onsi. It, oupru at 783. L niled Stanford Emplotere,
,upro
Lihrtt MAliutual Inurunce Co., 235 NI RB 1387 (1978). Baptist Memorial
hoesptial. 229 NI.RB 45 (1977).
450
POWER SYSTEMS. INC.
ford, No. 77M 1-350175. which Respondent caused to
be instituted against John E. Sanford in the Circuit
Court of Cook County. Illinois, to the extent that it
seeks to recover the legal expenses it incurred in de-
fense of a charge filed by Sanford with the National
Labor Relations Board.
(b) Reimburse the Charging Party, John E. San-
ford, for all legal expenses he has incurred in the
defense of that portion of the complaint and
amended complaint, styled as Power Systems, Inc., v.
John E. Sanford, No. 77M1-350175 (Circuit Court of
Cook County, Ill.), in which Respondent sought to
recover the legal expenses it incurred in defense of a
charge filed by Sanford with the National Labor Re-
lations Board.
(c) Post at its Schaumberg, Illinois. plant copies of
the attached notice marked "Appendix." 23 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 33, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 33. in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
23 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted bh 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."
APPENDIX
NOTICF To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIll NOT prosecute a complaint and
amended complaint, styled as Power Srvstemv.
Inc. v. John E. Sanford, No. 77MI-350175 (Cir.
C(t.. Cook County, I111.), which arose out of
Sanford's filing of unfair labor practice charges
with the National Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act.
WE Wilt1. withdraw a complaint and amended
complaint, styled as Power Sy'stems, Inc. v. John
E. Sanford, No. 77M1I-350175, which we caused
to be instituted against John E. Sanford in the
Circuit Court of Cook County, Illinois, to the
extent that we sought to recover the legal expen-
ses we incurred in defense of a charge filed by
Sanford with the National Labor Relations
Board.
WE WILL reimburse John E. Sanford for all
legal expenses he has incurred in the defense of
that portion of the complaint and amended
complaint styled as Power Systems, Inc. v. John
E. Sanford, No. 77MI-350175 (Cir. Ct., Cook
County, 111.), in which we sought to recover the
legal expenses we incurred in defense of a
charge filed by Sanford with the National Labor
Relations Board.
POWER SYSTEMS. INC.
451