Albert T Ledford Trucking Co.

National Labor Relations Board - Board Decisions

May 4, 1989

293 N.L.R.B. 940 (N.L.R.B. 1989)

940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Albert T Ledford Trucking Company and Laborers'
International Union of North America, Local
513, AFL-CIO Cases 9-CA-24125(E) and 9-
CA-24247(E)
May 4, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 15, 1989, Administrative Law
Judge Robert T Wallace issued the attached Sup-
plemental Decision denying an award under the
Equal Access to Justice Act The Applicant filed
exceptions with supporting argument, and the Gen-
eral Counsel filed an answering 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, Albert T Ledford Trucking Company,
Hamilton, Ohio, for attorney's fees and expenses
under the Equal Access to Justice Act is denied
Jack V Baker Esq for the General Counsel
Daniel C McCarthy Esq of Indianapolis Indiana for
the Respondent
SUPPLEMENTAL DECISION
Equal Access to Justice Act
ROBERT T WALLACE Administrative Law Judge No
exceptions were taken to my decision, served on March
11, 1988 in which I recommended that the complaints be
dismissed, and the Board adopted that recommendation
by order dated April 27
On May 23 1988, Respondent Applicant (Ledford)
filed an application for attorneys fees and costs pursuant
to the Equal Access to Justice Act (EAJA), Public Law
96-481, 94 Stat 2325 5 US C § 504 and Section
102 143 of the Boards Rules and Regulations The
matter was referred to me for appropriate action on May
31 1988 On July 13, I denied a motion to dismiss filed
by the General Counsel, and the latter filed an answer on
September 13 Thereafter, Applicant responded in a
motion for judgment on the pleadings, and it later (on
January 5 1989) sought to amend the motion apparently
for the main purpose of calling my attention to a Board
decision in Lion Uniform 285 NLRB 249 (1987)
There were two allegations in the complaint (1) that
Applicant laid off certain employees so as to lend cre
dence to its threats to go out of business if employees
continued to support the Union, and (2) that Applicant
circulated an antiunion petition among its employees
The question presented under EAJA is whether the Gen
era] Counsel had substantial justification for issuing and
pursuing the complaint See Lion Uniform, supra I find
affirmatively
Regarding the first charge, the key is whether Appli
cant laid off the named employees pursuant to a firm
intent to withdraw from the trucking business Although
I found it had such intent, I did so only after its principal
official (Albert Ledford) testified at the very end of the
trial that he had just entered into a contract of sale for
his last remaining dump trailers Up to that point Appli
cant indisputably was still in business , and I was not in
clined to credit his claim that he would soon terminate
all operations , particularly in view of unopposed finding
of Judge Evans in the earlier case that Applicant had en
gaged in numerous unfair labor practices including re
peated predictions that it would close down According
ly, I find that there was substantial justification for the
charge through the time of trial and until the General
Counsel had an opportunity to ascertain that the Compa
ny indeed went out of business, and had not resumed op
erations under another name Apparently she was satis
feed in that regard by the time a decision had to be made
on filing exceptions to my initial decision since none
were filed In the circumstances the elapsed period of
about 9 months between the trial and her opting not to
pursue the case further was reasonable
Also presenting a very close question was the issue of
whether Ledford had approved the antiunion letter writ
ten by his secretary and ultimately I credited her ac
count that she acted alone only after accepting Ledford s
11th hour statement that he was out of business As
stated in the initial decision there would have been no
point in his sanctioning the letter if he had an unwaver
ing intent permanently to shut down
Conclusions
Accordingly I find that there were substantial justifi
cations for instituting and pursuing with the case through
trial and the beefing stages and accordingly that the ap
plication for fees and expenses should be denied
On the foregoing findings and conclusions the record
in the unfair labor practice case the pleadings, and pur
suant to Section 102 153 of the Board s Rules and Regu
lations I hereby issue the following recommended'
ORDER
The instant application for an award under the Equal
Access to Justice Act is denied
' 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
293 NLRB No 117