Abbot House, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1985

277 N.L.R.B. 194 (N.L.R.B. 1985)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abbott House, Inc. and District Council 1707, Com-
munity and Social Agency Employees Union,
AFSCME, AFL-CIO. Case 2-CA-19743(E)
31 October 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 25 March 1985 Administrative Law Judge
Steven Davis issued the attached supplemental de-
cision. The Applicant filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
brief and has decided to affirm the judge's rulings,
findings, and conclusions' and to adopt the recom-
mended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the application of the Ap-
plicant, Abbott House, Inc., Irvington , New York,
for attorney 's fees and expenses under the Equal
Access to Justice Act is denied.
i We believe that Congress , in revising the Equal Access to Justice
Act, 5 U S C A § 504 (1982), as amended by Pub L. 99-80, 99 Stat 183
(Aug 5 , 1985), did not alter, but merely clarified, the definition of "sub-
stantially justified " "Substantially justified" means more than "mere rea-
sonableness " H R Report 99-120 at 9
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
STEVEN DAVIS, Administrative Law Judge. On April
9, 1984, I issued a decision in which I recommended that
the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed with the Board exceptions and a
supporting brief, and Respondent filed limited cross-ex-
ceptions, a supporting brief, and an answering brief to
the General Counsel's exceptions.
On September 18, 1984, the Board issued its Decision
and Order, 272 NLRB 78, adopting my recommended
Order and dismissing the complaint.
Abbott House, Inc. (the Applicant) filed an application
for the award of legal fees and expenses pursuant to the
Equal Access to Justice Act (EAJA), dated October 16,
1984.1
i The Applicant also filed with the Board a petition requesting the
Board to increase the maximum rate for attorney fees On November 16,
1984, the Board denied that petition 272 NLRB 78
On November 20, the General Counsel filed a motion
to dismiss the application and, on November 28, the Ap-
plicant filed a response to the motion to dismiss. On De-
cember 10, I issued an order denying the motion with
leave for the General Counsel to file an answer to the
application.
On January 11, 1985, the General Counsel filed an
answer to the application and a memorandum in support
of the answer and, on January 24, the Applicant filed a
memorandum in response to the General Counsel's
answer and memorandum.
The major issue is whether the General Counsel's posi-
tion in the underlying case was substantially justified.
The underlying case turned on an interpretation of
several documents. The complete facts are set forth in
my initial decision, but essentially the Applicant and the
Union executed a successor agreement (a stipulation of
settlement) in September 1982, setting forth in some
detail the terms of their agreement. The stipulation,
which was to expire on June 30, 1983, stated that "the
existing collective bargaining agreement shall be ex-
tended for an additional term as expressly hereinafter
modified." The stipulation did not on its face contain an
automatic renewal clause. However, the prior collective-
bargaining agreement did have such a provision which
required 60 days' notice of an intent to amend or termi-
nate the contract.
The Union notified the Applicant that it wished to ne-
gotiate a new agreement and the Applicant rejected the
notice as untimely pursuant to the prior agreement's
automatic renewal clause requiring 60 days' notice, and
refused to bargain with the Union inasmuch as it regard-
ed the contract as being automatically renewed for 1
year.
The General Counsel correctly argued that the stipula-
tion of settlement on its face did not contain an automat-
ic renewal clause and was for a definite 2-year term. The
General Counsel further argued that paragraph 1 of the
stipulation of settlement completely replaced article
XXII of the prior agreement which contained an auto-
matic renewal clause, and that an automatic renewal
clause may not be inferred where none exists. The Gen-
eral Counsel noted, in support of this theory, that the
parties did not discuss an automatic renewal clause
during their negotiations leading up to the execution of
the stipulation of settlement.
The Applicant's main point is that the General Coun-
sel was not substantially justified in issuing the com-
plaint.
The main thrust of this agreement is that the complaint
was issued notwithstanding "clear and unequivocal
Board precedent which was factually and legally disposi-
tive and adverse to [the General Counsel's] case."2 The
General Counsel admits that, if the stipulation of settle-
ment was found to have contained an automatic renewal
clause, then the Union had not provided the Applicant
2 It is noted that, prior to the issuance of the complaint, the Applicant
cooperated fully in the investigation of the matter by providing extensive
written statements of facts, its position, legal authority in support of its
case, arguments why the Union's authorities should not be accepted, and
an affidavit from its official
277 NLRB No. 24
ABBOTT HOUSE, INC
with timely notice of its intention to modify or terminate
the agreement.
It was, of course, the General Counsel's position that
the stipulation of settlement did not contain such a
clause. Inasmuch as that document did not, on its face,
include an automatic renewal clause, the case turned on
an interpretation of the relevant documents , and a careful
analysis of the facts relied on by the General Counsel to
support her theory.
In this respect, the Applicant's heavy reliance on
DeBolt Transfer, 271 NLRB 299 (1984), is misplaced. In
that case, the judge, affirmed by the Board, found that
there were no genuine issues of contract interpretation
and no credibility issues (id. at 302). On the contrary, in
the instant case, I was required to (a) make a credibility
determination, (b) decide whether certain disputed testi-
mony should be resolved, and (c) interpret the relevant
documents to determine whether the stipulation of settle-
ment incorporated the automatic renewal clause con-
tained in the prior agreement.3
I discredited Union Agent Kennedy's testimony (fn. 9)
regarding the reason for giving 10 days' notice under the
prior agreement , and found that he provided such notice
in order to conform with the requirements of article
XXI][ of that contract which contained the automatic re-
newal clause . If I credited his testimony, additional
weight would have thus been given for the General
Counsel's theory, along with other undisputed facts,
which would have supported a finding that the automat-
ic renewal clause was not incorporated by reference in
the stipulation of settlement.
I found it unnecessary to resolve two other credibility
conflicts, in view of my interpretation of the stipulation
of settlement to include the automatic renewal clause.
Both of those disputes, if resolved in the General Coun-
sel's favor, would have given considerable weight to the
General Counsel's theory. They involved testimony that
(a) the Applicant agreed to, but did not in fact prepare a
complete collective-bargaining agreement after the exe-
cution of the stipulation of settlement and (b ) Union Offi-
cial Kennedy told the Applicant's official prior to the
execution of the stipulation of settlement that 60 days'
notice was not required.
The General Counsel's case failed, at least in
part, because of the adverse credibility resolution.
Such credibility issues, which are not subject to res-
olution by the General Counsel in the investigative
stage of a proceeding on the basis of documents or
other objective evidence, are, in the first instance,
the exclusive province of the administrative law
judge; they require submission of a case to the fact-
finding process of litigation.
Charles H. McCauley Associates, 269 NLRB 7911, 793
(1984).
It must be found that the General Counsel's position
that the stipulation of settlement did not contain an auto-
3 1 stated in my decision that "this case turns upon the interpretation to
be given the stipulation of settlement " 272 NLRB at 79
195
matte renewal clause was substantially justified and was
reasonable in law and in fact.
The test of whether or not the General Counsel's
action is "substantially justified" is essentially one of
reasonableness . Where the Government can show
that its case had a reasonable basis both in law and
in fact, no award will be made . This standard, how-
ever, should not be read to raise a presumption that
the Government's position was not substantially jus-
tified simply because it lost the case . Nor, in fact,
does the standard require the Government to estab-
lish that its decision to litigate was based on a sub-
stantial probability of prevailing . See H . R. Rep.,
No. 1418, 96th Cong. and Ad . News 4984, 4989.
Enerhaul, Inc., 263 NLRB 890 (1982). Further, it is
immaterial that the General Counsel, in supporting
his substantial justification , may not have estab-
lished a prima facie case of violation . Enerhaul Inc.,
supra. To be "substantially justified ," however, the
General Counsel must present evidence which, if
credited by the factfinder, would constitute a prima
facie case of unlawful conduct by the applicant.
S.M.E. Cement, Inc., 267 NLRB 763 (1983).
Bosk Paint & Sandblast Co., 270 NLRB 514 (1984).
It is clear that, if I credited the General Counsel's
theory, supported by testimony from her witnesses that
the stipulation of settlement did not incorporate the auto-
matic renewal clause of the prior contract , she would
have set forth a prima facie case that the Applicant un-
lawfully refused to bargain with the Union . Thus the
General Counsel , in deciding to issue the complaint, was
faced with the following (a) undisputed facts that (i) the
stipulation of settlement did not contain, on its face, an
automatic renewal clause , (ii) the stipulation of settle-
ment provided for a fixed term of 2 years , (iii) there was
no discussion concerning an automatic renewal clause in
the negotiations leading up to the signing of the stipula-
tion, (iv) no effective 60-day notice was sent by either
party prior to any previous bargaining effort, and (v)
before the start of the prior negotiations , the applicant
continued to bargain notwithstanding the Union failed to
give time 60-day notice ; and the following (b) disputed
facts that (i) Union Official Kennedy told the Applicant's
official that 60 days' notice was not required , (ii) the Ap-
plicant agreed to prepare a complete contract after the
execution of the stipulation of settlement, and (iii) Union
Official Kennedy provided 10 days ' notice although not
pursuant to the terms of the automatic renewal' clause.
The General Counsel argues that , pursuant to the
Board's clear authority to interpret collective-bargaining
agreements in the course of deciding unfair labor prac-
tice case's, NLRB v. C & C Plywood Corp., 385 U . S. 421,
428 (1967); Electrical Workers IBEW Local 11 (Los Ange-
les NECA), 270 NLRB 424, 426 fn . 9 (1984), she proper-
ly construed the stipulation of settlement as not contain-
ing an automatic renewal clause. The General Counsel
also relies on the theory that the Union cannot be found
to have waived its right to bargain because no clear and
unequivocal waiver can be found here. Metropolitan
Edison Co. v. NLRB, 460 U.S. 603 ( 11983). Although I
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found the waiver theory to be inapplicable to the instant
matter, the General Counsel was substantially justified in
raising and relying upon it as a possible basis upon which
the Union's conduct could be viewed.
Inasmuch as this case involved a close question of the
interpretation to be given the stipulation of settlement
and the prior collective-bargaining agreements and, in
part, a determination of the credibility of witnesses for
both parties , I must conclude, based on the foregoing,
that the General Counsel 's case had a reasonable basis in
fact and in law and was substantially justified. I therefore
issue the following recommended4
ORDER
IT IS ORDERED that the application of the Applicant,
Abbott House , Inc., for an award under the Equal
Access to Justice Act is dismissed.
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.