George A. Angle

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 744 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George A. Angle and Arel Rodgers. Case 17-CA-8059
June 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on January 8, 1978, and an
amended charge filed on July 12, 1978, by Arel Rod-
gers, and duly served on George A. Angle (herein
called Angle or Respondent), the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 17, issued a complaint on July
19, 1978, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(l) and (4) and Section 2(6) and (7) of the
National Labor Relations Act, as amended (herein
the Act). Copies of the charges, complaint, and notice
of hearing before an administrative law judge were
duly served on the parties to this proceeding. There-
after, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On February 9, 1979, counsel for the General
Counsel filed directly with the Board a Motion To
Transfer Proceeding to the Board and for Summary
Judgment. Subsequently, on March 2, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to the Notice To Show Cause.
Ruling on the Motion for Summary Judgment
The complaint alleges that Respondent has filed
and maintained a lawsuit for malicious prosecution
against Arel Rodgers, a former employee at the Kan-
sas Refined Helium Company (KRH), because Rod-
gers filed charges and gave testimony under the Na-
tional Labor Relations Act against Respondent and
KRH. In its answer to the complaint, Respondent
admitted that it had filed the lawsuit for malicious
prosecution against Rodgers, but denied that the law-
suit was filed in retaliation for Rodgers having filed
charges or given testimony under the Act or for the
purpose of interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed
by Section 7 of the Act. The General Counsel, in his
Motion for Summary Judgment, alleges that since
Respondent admitted in its answer that it had filed
the malicious prosecution lawsuit against Rodgers,
and inasmuch as the matters pled by Respondent in
the malicious prosecution petition relate to Rodger's
conduct which is protected by the Act, the Board
should grant the Motion for Summary Judgment and
issue a Decision and Order finding that Respondent
has violated the Act, as alleged in the complaint.
There is no dispute regarding most of the facts in
this case. In 1966, George A. Angle, d/b/a Kansas
Refined Helium Company, commenced operation of
a highly automated helium extraction plant in Otis,
Kansas. Shortly thereafter a majority of employees
signed union authorization cards designating the Oil,
Chemical and Atomic Workers International Union,
AFL-CIO (hereinafter Union), as their collective-
bargaining representative. After the Union demanded
recognition and filed an election petition, Angle en-
gaged in an extensive antiunion campaign culminat-
ing, inter alia, in Rodgers' discharge on September 20,
1966, along with five other employees. The Union
filed charges involving these matters, and the General
Counsel issued a complaint alleging violations of Sec-
tion 8(a)(1), (3), and (5) of the Act.
After complaint issued, but before the unfair labor
practice hearing was held, the Regional Director peti-
tioned for Section 100) relief. In April 1967, the
United States District Court for the District of Kan-
sas directed immediate reinstatement of the six dis-
chargees, including Rodgers, pending a decision by
the Board in the unfair labor practice proceeding.' On
appeal by Angle, the U.S. Court of Appeals for the
Tenth Circuit issued a decision on August 28, 1967,
modifying the district court's order to exclude the re-
instatement of employees Sims and Rodgers on the
grounds that there was an issue as to their supervisory
status.2
In July 1967 Rodgers was offered reinstatement
pursuant to the district court order. However, he was
not given his prior job as a senior operator, but in-
stead he was placed in "training." As a result, civil
and criminal contempt proceedings were instituted
against Respondent in the same district court. Prior
to the contempt hearing the district court ruled that
the civil contempt portion of the case as to Rodgers
was moot because of the decision of the Tenth Circuit
which found a genuine issue as to Rodger's supervi-
sory status. On September 13, 1967, a hearing was
held on the criminal contempt matter. Rodgers ap-
peared and testified for the Board. The criminal con-
tempt matter was dismissed, without formal findings
of fact.
On September 12, 1967, Trial Examiner Goldberg
issued his Decision in the unfair labor practice pro-
ceeding. finding merit to the unfair labor practices
charged and irecting reinstatement of the six dis-
I Sacks v. Angle, 65 LRRM 2098, 55 LC 113865 (D. Kans. 19671.
2 George A. ngle, d/a Kansa. Reined Helium Conpan v. Scks. 382
F.2d 655 (10h Cir. 1967).
242 NLRB No. 112
744
GEORGE A. ANGLE
charged employees, including Rodgers. In this regard,
the Trial Examiner concluded that senior operators
were employees rather than supervisors, as claimed
by Respondent.
On October 2, 1967, Rodgers was again discharged
by Respondent for alleged misconduct, including his
discussion of the Trial Examiner's Decision with
other employees, his asserted instigation of contempt
litigation and alleged lying in connection therewith,
his recording of events at the plant in a notebook and
passing of information to Board attorneys, and his
antagonizing of other employees by assisting Board
attorneys at the contempt hearing. New unfair labor
practice charges were filed by the Union, and a com-
plaint was issued by the Board. After a hearing, Trial
Examiner Powell, in a Decision that issued on July 2,
1968, found that Rodger's second discharge was vio-
lative of Section 8(a)(1) and (4) of the Act.
On June 25, 1969, the Board affirmed the Decisions
of both Trial Examiners Goldberg and Powell.3 On
September 10, 1971, the United States Court of Ap-
peals for the District of Columbia Circuit enforced
the Board's Orders in all respects, including the re-
quirement that Rodgers be offered reinstatement to
his former or substantially equivalent position of em-
ployment.4 Respondent's petition for a writ of certio-
rari was denied by the United States Supreme Court
on January 17, 1972.5
Following denial of Respondent's petition for a
writ of certiorari, a series of letters passed between
Rodgers and Angle pertaining to Angle's obligation
to reinstate Rodgers. Rodgers finally returned to work
on March 23, 1972. Upon Rodgers' return, Angle as-
sembled all the employees and supervisors of KRH
from all three shifts and delivered a speech. In sub-
stance, Angle said that Rodgers was back only be-
cause of the law's requirement, and he specifically
directed Rodgers not to enter the plant premises
while off duty and not to take notes or receive tele-
phone calls on company time. Angle also gave exam-
ples of bad attitudes on the part of employees which
could lead to discharge, citing acts and behavior en-
gaged in by Rodgers during his earlier employment.
Rodgers continued to work for Respondent until
July 12, 1972, when he was discharged for insisting
upon accompanying another employee to a disciplin-
ary interview. That same day the Board petitioned
the P C. Circuit for an adjudication of civil contempt,
and a special master was appointed to hold hearings
on the contempt charges.
3George A Angle, d/b/a ansas Refined Helium Companv, 176 l.RB
1032 and 176 NLRB 1037 (1969).
4 Oil, Chemical and Atomic Workers International Union. AFL -CIO v.
N.L.R B., 445 F.2d 237 (D.C Cir. 1971).
5Angle, d/ba Kansas Refined leliun Co. . N'.L R B., 404 U.S. 1039
(1972)
On September 12, 1972, the D.C. Circuit granted
the Board's motion for temporary relief and ordered
that Rodgers be reinstated with full rights and privi-
leges pending jurisdiction of the contempt issues. Pur-
suant to this order, Rodgers returned to the plant on
September 30, 1972, and worked there until MaN 22.
1973. On the latter date, Rodgers wrote Respondent
that he was terminating his employment because. "1
cannot continue to work under these conditions until
you comply with the Court order." The issue as to
whether Rodgers was constructively discharged on
May 22, 1973, was then added to the issues being
considered by the special master.
Following lengthy hearings, the special master is-
sued his findings of fact and conclusions of law on
March 14, 1975. The special master found that the
Board had failed to show by clear and convincing
evidence that Angle was in contempt of an) court
orders. As to Rodgers, the special master specificall 3
found that the discharge of July 12, 1972. was war-
ranted, and that Rodgers was not constructively dis-
charged on May 22, 1973. With reference to the al-
leged constructive discharge, the special master found
that:
Between the dates of [his] reinstatement in Sep-
tember 1972 and May 22, 1973. when [he] re-
signed ... Rodgers consistently and deliberatel
followed a course of conduct designed to lure
Angle into actions which [he] might report to the
Board as evidence of Angle's non-compliance
with orders of this court.
With regard to the general allegation that Rodgers
interfered with or impeded Angle's efforts to complN
with the D.C. Circuit's order, the master found that:
Rodgers. by his purposeful failure to obey rea-
sonable instructions, and by a deliberate course
of conduct calculated to make Angle's efforts to
require him to perform duties properly expected
of him as an employee appear to constitute non-
compliance with the Court orders, did interfere
with and impede Angle's efforts to compl. with
the Court's orders.
The special master's findings of fact and conclu-
sions of law were appealed by the Board. and in June
1976 the D.C. Circuit issued its decision in which it
refused to adopt almost all of the special master's
findings and instead found, inter liar, that Rodger's
discharge on July 12, 1972. constituted civil contempt
by Angle. 6 However, the court declined to overturn
the special master's finding that Rodgers was not con-
structively discharged in May 1973, as the court
noted that in excepting to the special master's find-
' Oil. Ch/ntil arnd Atn 'rur tr r Ironl I , ,, ./ 'l (1(O
' 1. RB, 547 F:2d 575, 590 592 ([)(' ('tr 1976)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings on the constructive discharge issue, the Board
merely stated its objection to the special master's
finding and failed to "provide arguments or direct
[the court] to record evidence that might establish the
commission of reversible error by the master." 7 Since
it accepted the special master's findings as to Rod-
gers' conduct subsequent to his July 1972 discharge
and temporary reinstatement, the court refused to or-
der Rodgers' reinstatement. However, since it was dif-
ficult to define the precise point at which Rodgers'
acts precluded reinstatement, the court directed the
Board to award Rodgers backpay covering the period
from his illegal discharge until his voluntary depar-
ture from the plant, so as not to deny Rodgers back-
pay which accrued prior to his misconduct.
On January 4, 1978, Angle filed a lawsuit for mali-
cious prosecution in the District Court of McPherson
County, Kansas, against Rodgers, seeking compensa-
tory damages of $10,000 and the recovery of attor-
neys' fees incurred in defending against the civil con-
tempt charges filed on July 12, 1972, plus damages for
injury to his reputation caused by the civil contempt
proceedings, loss of income, diminution in value of
the Kansas Refined Helium Company, and for men-
tal pain and suffering to which he was subjected by
reason of Rodgers' actions. The lawsuit alleged that
Rodgers induced and caused the commencement of
the civil contempt proceedings filed against Angle on
July 12, 1972, as well as the subsequent broadening
amendments thereto, by engaging in the following
conduct: (a) preparing and submitting to the Board
false or misleading daily reports regarding the opera-
tions of KRH; (b) fabricating or seeking to fabricate
evidence tending to show that Angle had not com-
plied with the court's enforcement of the Board's Or-
ders issued on or after September 10, 1971; (c) sub-
mitting, and counseling other employees to submit,
evasive and nonresponsive replies to letters that An-
gle was required to send under the Board and court
orders; (d) imposing special conditions upon his ac-
ceptance of reinstatement which interfered with and
impeded Angle's efforts to comply with the Board
and court orders; (e) making false or misleading state-
ments to Angle or to his employees so that Angle
would act upon such statements in a manner which
gave the appearance of noncompliance with the
Board and court orders; (f) failing to conduct himself
as a diligent employee of KRH, as evidenced by poor
work performance, failure to carry out assigned du-
ties, unwillingness to learn necessary operating proce-
dures, and lack of cooperation with fellow employees
and supervisors; (g) taking every grievance, regardless
of how petty, directly to the Board without first giv-
ing Angle an opportunity to resolve the problem: (h)
generating discussions with fellow employees about
I Id at 592 593, fn. 19.
nonwork topics while such employees were working
or changing shifts; (i) causing fights among employ-
ees; and (j) asserting rights as a union representative
when not so designated.
On January 8, 1978, Rodgers filed charges in the
instant case alleging violations of Section 8(a)(l) and
(4) of the Act. Based upon the charges and the mali-
cious prosecution lawsuit, the Board initiated con-
tempt proceedings against Angle in the U.S. Court of
Appeals for the District of Columbia Circuit. Rodgers
then served a summons and third party petition inter-
pleading the Board in the malicious prosecution law-
suit. The Board thereafter secured the removal of the
malicious prosecution lawsuit to the United States
District Court for the District of Kansas and then
requested the D.C. Circuit to stay the proceedings in
the district court. The D.C. Circuit, however, refused
to stay the district court proceedings. On July 19,
1978, the complaint in the instant case was issued.
Subsequently, on January 17, 1979, the United States
District Court for the District of Kansas issued its
Memorandum Order in which it (1) granted the
Board's motion to dismiss the third party complaint
filed by Rodgers against the Board, on grounds of
sovereign immunity; (2) denied the Board's motion to
dismiss the main complaint: and (3) granted the
Board's motion to stay the district court proceedings
pending the Board's decision in the instant unfair la-
bor practice case.
In Power Systems, Inc.,8 the Board found that an
employer violated Section 8(a)(4) and (1) of the Act
by filing a civil complaint for "wrongful use of civil
proceedings" against an employee who had filed a
nonmeritorious unfair labor practice charge against
the employer alleging that he was unlawfully dis-
charged. The complaint sought to recover the legal
expenses incurred by the employer in defending
against the nonmeritorious unfair labor practice
charge, which the employer alleged had been filed
without probable cause and for the purposes of ha-
rassment, as well as an injunction restraining the em-
ployee from filing any future charges against the em-
ployer. First, the Board reasoned that since the
employer had informed the employee that he was dis-
charged at least in part for conduct engaged in while
serving as a union steward, the employee did not lack
probable cause for filing the charge and did not file it
for the purpose of harassing the employer. Second,
the evidence relied upon by the employer in filing its
complaint was clearly insufficient to support the alle-
gations contained therein. Thus, the Board concluded
that:
[-]he Respondent had no reasonable basis upon
which to assert that [the employee's] single
1 239 NIlRB 445 (1978).
746
GEORGE A. ANGLE .
charge with the Board was filed without prob-
able cause or to harass it, and the nature of its
lawsuit was clearly aimed at penalizing (the em-
ployee] for having utilized the Board's processes
against [the Employer]. 9
In the instant case, the long history of litigation
involving Angle and Rodgers reveals that Rodgers
was first discharged by Angle in September 1966.
That discharge and a subsequent discharge following
Rodger's temporary court-ordered reinstatement
were found to be unlawful by the Board. Following
enforcement of the Board's Orders by the D.C. circuit
and the refusal of the United States Supreme Court to
review the D.C. Circuit's enforcement order. Rodgers
was finally reinstated by Angle in March 1972. When
Rodgers was again discharged by Angle in July 1972
for attempting to represent a fellow employee at a
disciplinary interview, the Board initiated contempt
proceedings against Angle not on/v for the discharge
of Rodgers but also for: (I) failing to properly rein-
state Rodgers: (2) failing to bargain in good faith, as
revealed by unilateral changes in insurance coverage
and work assignments; (3) engaging in various types
of coercive activity such as telling employees that An-
gle would never sign a union contract, having super-
visors attend union meetings, and making improper
notations on the posted Board Order: and (4) dis-
charging employee Luft. Pending the court's decision
on the contempt charges against Angle. Rodgers was
again reinstated by court order, but in May 1973
Rodgers resigned because of the working conditions
imposed upon him by Angle. Rodger's resignation
was then added to the contempt proceedings, as it was
alleged that Angle had constructively discharged
Rodgers. The discharges of employees Straub and
Brack in late 1972 were added to the contempt pro-
ceedings before the special master. The court ulti-
mately found Angle in contempt on every ground al-
leged by the Board with the exceptions of the
discharge of Brack and the constructive discharge of
Rodgers. Thus, as to Rodgers, the court specifically
found that Angle was in contempt for failing to prop-
erly reinstate him and for subsequently discharging
him, but that Rodgers' resignation in May 1973 was
not a constructive discharge because Rodgers had en-
gaged in attempts to fabricate evidence on which to
base contempt charges against Angle.
Ba-ed on this history of litigation. Respondent filed
its lawsuit for malicious prosecution against Rodgers.
alleging that Rodgers had "induced" and "caused"
the contempt proceedings which were instituted by
the Board on July 12, 1972. It is our view that, as in
Power Systems. supra, the evidence relied on by Re-
spondent in support of its lawsuit clearly indicates
i 239 NlRB at 449
that it did not have reasonable grounds upon which
to file the lawsuit seeking redress from Rodgers. First.
the record is clear that the decision to institute the
contempt proceedings was made solely by the Board
based on its own review of Respondent's conduct sub-
sequent to the court's enforcement of the Board's Or-
ders in September 1971. The fact that Rodger's un-
lawful discharge in July 1972 may have been a
precipitating factor in the Board's decision to file con-
tempt charges hardly indicates that Rodgers himself
"induced" or "caused" the contempt proceedings to
be instituted. Second. the record is clear that Respon-
dent's conduct toward Rodgers was only one of the
grounds upon which the Board alleged that Respon-
dent was in contempt of the court's orders. Third. the
allegation that Respondent was in contempt for con-
structively discharging Rodgers was added to the con-
tempt proceedings almost I year after the proceedings
were instituted. Fourth. and of crucial importance.
the court found Respondent in contempt on eer
ground alleged by the Board at the time it instituted
contempt proceedings in July 1972. Thus. regardless
of the nature of the conduct engaged in by Rodgers
subsequent to the institution of contempt proceedings
in July 1972, it is clear that Rodger's conduct prior to
the institution of contempt proceedings was entirely
protected by the Act. This finding is inherent in the
court's decision which found that Rodgers was im-
properly reinstated by Respondent and subsequently
discharged by Respondent in an unlawful manner.
In addition. Respondent alleged in its malicious
prosecution lawsuit that Rodgers had engaged in con-
duct which the court specifically found to be pro-
tected and proper. For example. paragraph 8(d) of
the malicious prosecution petition alleged that Rod-
gers had "imposed special conditions upon his accept-
ance of reinstatement which interfered with and im-
peded IRespondent'sJ efforts to comply with the
orders issued on September 10. 1971 .... " Hlowever.
the court specifically found that Respondent had im-
properly reinstated Rodgers. and thus. Rodgers' at-
tempt to "impose special conditions upon his accept-
ance of reinstatement" was simply an attempt to ha' e
Respondent reinstate him properly. Such conduct
was clearly protected in light of the court's findinding of
improper reinstatement. Another example of Rod-
gers' protected conduct which was cited in Respon-
dent's lawsuit was paragraph 8(f), alleging that Rod-
gers failed to conduct himself as a diligent employee
as evidenced by poor work performance, a failure to
carry out assigned duties. an unwillingness to learn
necessary operating procedures and a lack of coop-
eration with fellow emplo,ees and supervision." n
identical assertion b Respondent regarding Rodgers
was specifically con.idlered and rjictd bv the court
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when it found that Respondent had improperly rein-
stated Rodgers. The court stated:
That assertion rings hollow in light of (I) the
Board's twice having rejected that very argument
as a pretext when presented in connection with
the 1966 and 1967 discharges of Rodgers . . .; (2)
Rodgers having been employed in 1966 and rein-
stated in 1967 as a Senior Operator, a position
that Angle contended was supervisory, (3) the
depth of Angle's longstanding and uncontro-
verted dislike of Rodgers, a union ringleader,
and (4) the long history of Angle's anti-union
animus. '0
A final example of Rodger's protected conduct which
was cited by Respondent in its lawsuit is paragraph
80(), alleging that Rodgers had asserted rights as a
union representative when not so designated. This al-
legation apparently relates to the reason provided by
Respondent for the discharge of Rodgers in July 1972
when Rodgers sought to represent a fellow employee
at a disciplinary interview. As noted above, the court
specifically found Respondent in civil contempt for
that discharge."
The only aspect of Respondent's lawsuit which re-
lied on Rodgers' conduct that was arguably not pro-
tected by the Act was the master's finding, adopted
by the D.C. Circuit, that Rodgers had attempted to
fabricate evidence on which to base contempt charges
against Angle. Respondent now contends that its law-
suit was based solely on this conduct which is clearly
not protected by the Act, and thus, that it has not
violated Section 8(a)(4) and (1) of the Act. We find
this contention to be wholly without merit. Even were
we to assume that Respondent relied solely on Rod-
gers' unprotected conduct, which occurred after July
1972, in support of its lawsuit, such reliance is com-
pletely negated by the fact that the lawsuit sought to
recover damages from Rodgers because Rodgers al-
legedly induced and caused the institution of con-
tempt proceedings in July 1972. Thus, it is inconceiv-
able that Rodgers' allegedly unprotected conduct
occurring after July 1972 could have caused the con-
tempt proceedings which were instituted in July 1972.
Yet that is precisely what Respondent asserts in its
lawsuit and in its brief to the Board in the instant
case. In our view, it is perfectly clear from the court's
decision adopting the master's finding that Rodgers
had r t been constructively discharged that Rodgers'
misconduct occurred after he had been temporarily
reinstated in September 1972. The court stated as fol-
lows:
The Master's findings indicate that following this
court's temporary reinstatement order Rodgers...
t 547 F.2d 575. 590.
547 F.2d at 592.
engaged in attempts to manufacture evidence on
which to base contempt charges against Angle.
[Emphasis supplied.j' 2
In spite of this clear language by the court, Respon-
dent filed its lawsuit alleging that Rodgers' miscon-
duct engaged in following the institution of contempt
proceedings actually caused the filing of those con-
tempt proceedings. We must conclude, as in Power
Systems, supra, that the lawsuit was aimed at penaliz-
ing Rodgers for having utilized the Board's processes
against Respondent, and thus Respondent has dis-
criminated against Rodgers in violation of Section
8(a)(4) and (1) of the Act. Accordingly, we grant the
Motion for Summary Judgment."
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, George A. Angle, doing business
as Frontier Oil Company, Great Plains Drilling Com-
pany, Red Tiger Trucking Company, Red Tiger
Drilling Company, Hays Tank Service Company,
Red Tiger Cat Company, and Comanche Supply
Company is engaged in the production, manufacture,
distribution, and nonretail sale of gas, oil, helium, and
related products at various facilities located in the
State of Kansas. During the past year, a representa-
tive period, Respondent, in the course and conduct of
its business operations within the State of Kansas, has
purchased goods and services valued in excess of
$50,000 directly from sources located outside the
State of Kansas.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
a Id. at 593, fn. 19.
1t Thus. we reject Respondent's contention that there are "substantial and
material issues of fact and law in this case . . which must he resolved in an
evidentiary hearing." According to the Federal Rules of Civil Procedure
(FRCP) 56(c), summary judgment may be rendered "if he pleadings. depo-
sitions, answers to interrogatories, and admissions on file. together with he
affidavits. if any, show that there is no genuine issue as to arn arrerial fitl
and that the moving party is entitled to a judgment as a matter o/'la."
(Emphasis supplied.) In addition. FRCP 564e) states that "when a motion tlr
sunmmary judgment is made and supported as provided in this rule, an ad-
verse party may not rest upon the mere allegations or denials of his pleading.
but his response by affidavits or as otherwise provided in this rule must set
forth specific facts showing that there is a genuine issue for trial. If' he does
not so respond, summary judgment, if appropriate, shall be entered against
him." (Emphasis supplied.) In the instant case, the General Counsel has
made and supported a proper Motion for Summary Judgment, and Respon-
dent has failed to set forth any genuine issues of fact for hearing. Since we
have found above that based upon the facts presently before us that Respon-
dent has. as a matter of law. violated Sec. 8(a)(4) and (I ) of the Act, we deem
it appropriate to grant the Motion for Summary Judgment.
748
GEORGE A. ANGLE
II. THE UNFAIR LABOR PRACTICES
The 8(a)(4) violation
On or about January 4, 1978, Respondent filed a
lawsuit for malicious prosecution against Arel Rod-
gers seeking compensatory damages and the recovery
of legal expenses incurred in defending against civil
contempt charges which were allegedly "caused" or
"induced" by Rodgers. The lawsuit was based on
Rodger's giving of information and/or testimony to
the Board, which is activity clearly protected by Sec-
tion 8(a)(4) and (1) of the Act. Accordingly, we find
that by the aforesaid conduct Respondent has dis-
criminated against Rodgers in violation of Section
8(a)(4) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. THE REMEDY
We have found that Respondent has engaged in
certain unfair labor practices, and thus we shall order
it to cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
We have found that Respondent filed a lawsuit in
the District Court of McPherson County, Kansas,
seeking the recovery of compensatory damages and
legal expenses from Arel Rodgers, alleging therein
that Rodgers had fabricated evidence and engaged in
false and misleading activities so as to induce and
cause the Board to file civil contempt proceedings
against Respondent. By such conduct, Respondent
has discriminated against its employees in the exer-
cise of their rights guaranteed in Section 7 of the Act.
In order to dissipate the effect of Respondent's unfair
labor practices, we shall order Respondent to cease
and desist from prosecuting its lawsuit against Arel
Rodgers which arose out of Rodgers' utilization of
Board processes, and we shall require Respondent to
withdraw the lawsuit which it filed against Rodgers.
In addition, in order to place Rodgers in the position
he would have been in absent Respondent's 8(a)(4)
and (I) violations, we shall order Respondent to make
Rodgers whole for all legal expenses he incurred in
the defense of Respondent's lawsuit.' 4
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. George A. Angle is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By filing a lawsuit for malicious prosecution in
the District Court of McPherson County, Kansas,
seeking the recovery of compensatory damages and
legal expenses from Arel Rodgers, alleging therein,
inter alia, that Rodgers had fabricated evidence and
engaged in false and misleading conduct so as to in-
duce and cause the Board to file civil contempt pro-
ceedings against Respondent, Respondent has vio-
lated 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent.
George A. Angle, Wichita, Kansas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Prosecuting its lawsuit for malicious prosecu-
tion, originally styled as George A. Angle v. Arel Lvnn
Rodgers, No. Ci 361 (Dist. Ct.. McPherson County,
Kansas), and subsequently styled, after its removal to
the United States District Court for the District of
Kansas, as George A. Angle v. Arel Lynn Rodgers v.
John H. Fanning, e. al., No. 78-1074 (D. Kans.),
which Respondent has filed and maintained against
Rodgers because of Rodgers' utilization of the pro-
cesses of the National Labor 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 lawsuit for malicious prosecution,
originally styled as George A. Angle v. Arel Lynn Rod-
gers, No. Ci 361 (Dist. Ct., McPherson County, Kan-
sas), and subsequently styled after its removal to the
United States District Court for the District of Kan-
sas, as George A. Angle v. Arel Lynn Rodgers v. John
H. Fanning, et al., No. 78-1074 (D. Kans.), which
Respondent has filed and maintained against Rodgers
14 See Power Systems, Inc., supra at 450.
749
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
because of Rodgers' use of the processes of the Na-
tional Labor Relations Board.
(b) Reimburse Arel Rodgers for all legal expenses
he has incurred in the defense of Respondent's law-
suit for malicious prosecution, originally styled as
George A. Angle v. Arel Lynn Rodgers, No. Ci 361
(Dist. Ct., McPherson County, Kansas), and subse-
quently styled, after its removal to the United States
District Court for the District of Kansas, as George A.
Angle v. Arel Lynn Rodgers v. John H. Fanning, et al.,
No. 78-1074 (D. Kans.), which Respondent has filed
and maintained against Rodgers because of Rodgers'
utilization of the processes of the National Labor Re-
lations Board.
(c) Post at all places where notices to employees
are customarily posted copies of the attached notice
marked "Appendix."'' Copies of said notice, on forms
provided by the Regional Director for Region 17, af-
ter being duly signed by Respondent George A. An-
gle, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
A' 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 by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prosecute a lawsuit for mali-
cious prosecution, originally styled as George A.
A ngle v. Arel Lynn Rodgers, No. Ci 361 (Dist.
Ct., McPherson County, Kansas), and subse-
quently styled, after its removal to the United
States District Court for the District of Kansas,
as George A. Angle v. Arel Lynn Rodgers v. John
H. Fanning, et al., No. 78-1074 (D. Kans.),
which we have filed and maintained against
Rodgers because of Rodgers' utilization of the
processes of 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 the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL withdraw our lawsuit for malicious
prosecution, originally styled as George A. Angle
v. Arel Lynn Rodgers, No. Ci 361 (Dist. Ct. Mc-
Pherson County, Kansas), and subsequently
styled, after its removal to the United States Dis-
trict Court for the District of Kansas, as George
A. Angle v. Arel Lynn Rodgers v. John H. Fan-
ning, et al., No. 78-1074 (D. Kans.), which we
have filed and maintained against Rodgers be-
cause of Rodgers' utilization of the processes of
the National Labor Relations Board.
WE WILL reimburse Arel Rodgers for all legal
expenses has has incurred in the defense of our
lawsuit for malicious prosecution originally
styled as George A. Angle v. Arel Lynn Rodgers,
No. Ci 361 (Dist. Ct. McPherson County, Kan-
sas), and subsequently styled after removal to the
United States District Court for the District of
Kansas, as George A. Angle v. Arel Lynn Rodgers
v. John H. Fanning, et al., No. 78-1074 (D.
Kans.), which we have filed and maintained
against Rodgers because of Rodger's utilization
of the processes of the National Labor Relations
Board.
GEORGE A. ANGLE
750