Power Systems, Inc.

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