Power Systems, Inc. v. N.L.R.B., 78-2564
| Citation | 601 F.2d 936 |
| Decision Date | 18 July 1979 |
| Docket Number | No. 78-2564,78-2564 |
| Parties | 101 L.R.R.M. (BNA) 2978, 86 Lab.Cas. P 11,450, 1979 O.S.H.D. (CCH) P 23,941 POWER SYSTEMS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Matthew R. McArthur, Chicago, Ill., for petitioner.
Robert E. Allen, N. L. R. B., Washington, D. C., for respondent.
Before TONE and BAUER, Circuit Judges, and WILL, Senior District Judge. *
This is a review of an order in which the National Labor Relations Board found that Power Systems, Inc. committed an unfair labor practice by suing a former employee in a state court for having maliciously filed a baseless charge against Power Systems with the Board. 239 N.L.R.B. No. 56 (November 24, 1978). We deny enforcement of the order.
In November 1974 Power Systems employed John Sanford as one of four journeyman millwrights to perform work on a job undertaken by the company. Sanford's union designated him as its steward on the job. Less than two weeks after he began his employment Sanford was discharged for cause. He has not been reemployed by the company.
Shortly after his discharge Sanford filed an unfair labor practice charge against Power Systems with the Board's office in Peoria, Illinois, alleging that he had been discharged "because of his union activity regarding safety radiation dosage, contract improper tools." After an investigation of the charge the Board's officer-in-charge in Peoria advised Sanford by a letter dated January 7, 1975, that his charge had been investigated and that it did not appear that further proceedings on the charge were warranted. The letter stated that although Sanford was job steward for his union and engaged in making complaints to the employer in pursuit of his duties as steward, he had failed to invoke the formal grievance machinery. Also, "during the short period of (Sanford's) employment (he) had numerous encounters and confrontations with (his) fellow employees, representatives of . . . (his) own union, as well as employees and supervisors working for other employers on the site." Some of Sanford's statements and actions, the letter noted, were "inconsistent with (his) own union representative's position." In addition, it was noted that the employer had concluded that Sanford's "non-protected actions such as stopping work for lengthy periods in order to complain about tools were contributing to" the problem of the job not progressing according to schedule. It was stated that no evidence had been found that the employer was antiunion or that Sanford's discharge was related to his protected activities. In addition, it was noted that arbitration was available to determine the propriety of the discharge.
Sanford appealed the officer-in-charge's decision to the Board's General Counsel and in so doing asserted charges against his union and the Board itself. 1 The General Counsel remanded the case to the Board's Peoria office with instructions to obtain sworn affidavits from Power Systems' officials as to the reasons for Sanford's discharge. After these affidavits were supplied, the General Counsel denied Sanford's appeal in May 1975 "substantially for the reasons" given by the local office at the outset.
Some two years later, in April 1977, Sanford filed charges against Power Systems with the Occupational Safety and Health Administration of the United States Department of Labor, alleging that he had been discharged by Power Systems in retaliation for safety complaints he had made while in the employ of the company. The Labor Department investigated Sanford's charges, concluded that they were without merit, and dismissed them. Sanford did not appeal this dismissal.
Power Systems then made a request under the Freedom of Information Act to the Board's Peoria office for information about charges Sanford had filed with the Board. As a result of this and further investigation by Power Systems, it was discovered that he had filed some 43 separate unfair labor practice cases with that office against various employers and labor organizations. Of these, 25 had ultimately been withdrawn, 14 had been dismissed by the Board, three had resulted in settlements, and one had resulted in a Board order. It also appeared that the Board's Peoria office had established a special procedure for dealing with Sanford's complaints and advised him thereof in a letter which stated as follows:
(B)ecause of the numerous charges you have filed, the vast majority of which were non-meritorious, it was determined that for reasons of efficiency you would be required to submit Prima facie evidence at the Subregional Office in support of your charge before a field investigation takes place. This means, at a minimum, that you present yourself at our office and give a sworn affidavit with respect to evidence within your personal knowledge. Further, you are to proffer to the Investigating Agent the names, addresses and telephone numbers of your witnesses and a brief account of what their testimony will be.
These special provisions were specifically approved by the office of the Board's General Counsel in Washington.
After obtaining the above additional information, Power Systems inquired of the Board whether the filing of a civil suit against Sanford would in the Board's opinion interfere with his rights under the Act. Board representatives in both Peoria and Washington declined to express an opinion on the subject but referred the company to two published Board decisions, one of which states that the Act is not necessarily violated by the commencement of a civil action in court, Clyde Taylor Co., 127 N.L.R.B. 103 (1960), and the other holding that a union committed an unfair labor practice by fining a member for filing Board charges without first exhausting the union's internal grievance procedures, Local 138, I.U.O.E. (Chas. Skura), 148 N.L.R.B. 679 (1964).
In September 1977, Power Systems filed a civil suit against Sanford in an Illinois state court alleging that he had initiated proceedings before the NLRB and OSHA without probable cause and for the purpose of harassment and not for the primary purpose of correcting employment practices or safety practices. Damages and injunctive relief were initially sought, but the complaint was later amended to withdraw the request for injunctive relief and to limit the damages requested to litigation expenses incurred in defending the administrative charges.
The Board then filed the instant complaint. The company and the General Counsel waived hearing before an administrative law judge and submitted the case directly to the Board for decision.
In its decision, the Board did not reject the principle announced in Clyde Taylor, supra, 127 N.L.R.B. at 109, and followed in many subsequent decisions that the filing of a civil complaint by an employer or labor organization against an employee or member does not violate the Act. 2 Rather, the Board found that Power Systems had filed its complaint to further an unlawful objective, which brought it within a recognized exception to the Clyde Taylor rule. 3 According to the Board, Power Systems
had no reasonable basis for the filing of its lawsuit, . . . the lawsuit had as its purpose the unlawful objective of penalizing Sanford for filing a charge with the Board, and thus, depriving him of, and discouraging employees from seeking, access to the Board's processes. Therefore, Clyde Taylor does not preclude us from finding an unfair labor practice against the Respondent for the filing of its civil lawsuit.
Accordingly, the company was ordered to withdraw its civil action insofar as it related to Sanford's unfair labor practice charge filed with the Board and to reimburse Sanford for
all legal expenses he has incurred in the defense of that portion of the complaint and amended complaint . . . in which Respondent sought to recover the legal...
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