Bardcor Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1174 (N.L.R.B. 1985)

1174 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bardcor' Corp . and United Rubber, Cork, Linoleum
and' Plastic Workers of America, AFL-CIO-
CLC, District No. 8. Case 9-CA-17605(E)
30 September 1985
SUPPLEMENTAL DECISION AND
-ORDER
BY, CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 27 August 1984 Administrative Law Judge
Martin J. Linsky issued the attached supplemental
decision.I The Applicant filed exceptions and a
supporting 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 conclusions2 and to adopt the recom-
mended Order.
On February 11, 1983, I issued my decision in which I
concluded that the Respondent had not engaged in any
of the unfair labor practices alleged in the complaint, as
amended , and I recommended that the complaint be dis-
missed in its entirety.
The General Counsel filed exceptions to my decision
with the Board and , on June 7 , 1984, the Board issued its
Decision and Order adopting my decision , and dismissing
the complaint . Chairman Dotson and Member Hunter
formed the majority with Member Zimmerman dissent-
ing in part. -
Thereafter , on July 5 , 1984, Bardcor Corp., the Appli-
cant herein; filed with the Board a "Motion to Recover
Fees and Express Expenses ," with attachments , pursuant
to the Equal Access to Justice Act (EAJA).' The Appli-
cant seeks to recover $ 19,717.01 in fees and expenses.
The Board , by Order dated July 11, 1984 , referred the
Applicant 's Motion to Recover Fees and Expenses to me
for appropriate action . Thereafter, I received the Gener-
al Counsel 's "Motion to Dismiss Respondent 's Motion to
Recover Fees and Expenses," dated July 17, 1984, and
the Applicant 's "Opposition to General Counsel 's Motion
to Dismiss Application For Recovery of Fees and Ex-
penses," dated July 23, 1984.
ORDER
It is ordered that the application of the Appli-
cant, Bardcor Corp., Guthrie, Kentucky, for an
award- under the Equal Access to Justice Act is
dismissed.
' The Board's original Decision and Order herein is reported at 270
NLRB 1083 (1984) Members Dennis and Babson did not participate in
that decision
2 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 Rep. No 99- 120 at 9.
Damon W. Harrison, Jr., Esq., of Cincinnati, Ohio, for
the General Counsel.
John J. Chewning, Esq., of Hopkinsville, Kentucky, and
Edwin S. Hopson, Esq. and Glenn a Cohen, Esq., of
Louisville, Kentucky, for the Respondent.
DECISION
EQUAL ACCESS TO JUSTICE ACT
MARTIN J. LINSKY, Administrative Law Judge. The
unfair labor practice complaint, which issued in Decem-
ber 1981, was tried before me in Hopkinsville, Kentucky,
in September 1982. The complaint, as amended, alleged
several violations of the National Labor Relations Act.
More specifically, Bardcor Corp., the Respondent in the
unfair labor practice case and the Applicant herein, was
alleged to have violated Section 8(a)(1), (3), and (5) of
the Act by engaging in unlawful surveillance, threaten-
ing plant closure if its employees selected a union, dis-
charging nine employees in order to discourage employ-
ee activity on behalf of the Union, and refusing to bar-
gain with the Union.
Discussion and Conclusion --
The Applicant appears to have demonstrated that it
has a net worth of less than $5 million and a work force
less than 500 in number and is therefore eligible to peti-
tion for fees and expenses under EAJA.2 The Applicant
was clearly the prevailing party in this litigation since
the complaint was dismissed in its entirety. However, a
prevailing party who meets the jurisdictional standards is
not entitled to recover fees and expenses if the General
Counsel can show that he was substantially justified in
prosecuting the case. I conclude that the General Coun-
sel was substantially justified. The Agency's position was
reasonable both in law and fact.'
The Applicant was charged with several violations of
the Act in the-underlying unfair labor practice case. A
brief summary of those allegations and their disposition
will show that the Agency was substantially justified in
issuing the complaint and prosecuting the case as it did.
All alleged violations of the Act were alleged to have
been committed during the early days of a union orga-
' 5 US C § 504 The Board's regulations implementing EAJA are
contained at 29 CFR § 102 143 et seq
2 If I were inclined to make an award to the Applicant the matter of
"affiliates" would have to be cleared up Pursuant to 29 CFR §
102 143(g) the net worth and number of employees of the applicant and
its affiliates are added together to determine eligibility According to the
Applicant 's financial statement the Applicant leases real property and
certain equipment from an "affiliate "
3 Since I conclude that the General Counsel was substantially justified
in prosecuting the underlying unfair labor practice case I need not ad-
dress some issues which would have to be addressed in detail if I had
concluded otherwise , e g , although the Applicant requests $ 19,717 01 in
fees and expenses it would be entitled to be reimbused only for allowable
fees and expenses incurred after the complaint had issued and not fees
and expenses incurred during the investigatory stage of the case (between
charge and complaint ), fees incurred in connection with the EAJA appli-
cation itself should probably be recoverable although the Board has not,
as far as my research disclosed, addressed this issue as yet.
276 NLRB No. 127
BARDCOR CORP
nizing campaign at the Applicant's plant in Guthrie,
Kentucky. The Applicant was alleged to have engaged
in unlawful surveillance of two union meetings. My con-
clusion that neither allegation of unlawful surveillance
was established was premised on credibility findings that
I made. If my credibility resolutions had gone the other
way ' the allegations may well have been sustained. In
crediting the testimony of Applicant President William
Freeman concerning the circumstances surrounding his
driving past the Cracker Barrell Restaurant on August
12, 1981, and in crediting the denial of Supervisor Mike
Loreille . that he was surveilmg the union meeting on
August 14, 1981, I was making credibility determinations
that were devastating to the General Counsel's case, but
this does not 'mean that the General Counsel was not
substantially justified in prosecuting the case. In' order to
be substantially justified the General Counsel must be
able to make out a prima facie case but he is not an in-
surer that the independent. fact finder (the administrative
law judge in an unfair labor practice case) will agree
with him. It is the province of the administrative law
judge and not the General Counsel to make these credi-
bility resolutions. See Charles H. McCauley Associates,
269 NLRB 791 (1984), wherein the Board stated -that
credibility resolutions are for the administrative law
judge to make and, if made contrary to the General
Counsel, do not mean that the General Counsel was not
substantially justified.
With respect to the allegation that Applicant President
William Freeman threatened plant closure if a union was
selected by his employees I note that this allegation was
resolved-in favor of the Applicant based on my crediting
the denial of Freeman that he made such a threat. Again,
this simply does not mean that the General Counsel was
not substantially justified in prosecuting the case.
With respect to the allegations that the Act was violat-
ed by Supervisor - Loreille's statement to employee
Maxine Dukes that the Respondent was going to fire em-
ployees for union activity and that the Act was violated
by Supervisor Tom Rezack's questioning of an employee
as to the location of a scheduled union meeting, I note
that while L credited the General Counsel's witnesses I
1175
nevertheless found, in light of all the circumstances, that
the Act had not been violated. A majority of the Board
agreed with me However, Member Zimmerman agreed
with the General Counsel that the Act had been violat-
ed. Clearly, the General Counsel was substantially justi-
fied in presenting this portion of his case where the
credibility resolutions were made in the General Coun-
sel's favor and: one of the Board Members deciding the
case concluded that the Act was violated.
My conclusion that the Act was not violated when the
Applicant discharged nine employees just days after the
beginning of a union organizing campaign was the result
of crediting the testimony of Applicant President Wil-
liam Freeman and a careful analysis of all the evidence
presented over 5 days of trial. The refusal-to-bargain al-
legation was necessarily found wanting in light of the
conclusions reached regarding the other charges. See
Bardcor Corp, 270 NLRB 1083 (1984), for the full deci-
sions of the Board and the administrative law judge. In
summary, this case was well tried by counsel for both
sides. The legal theory of the General Counsel was based
on Board law of long standing and the decision was
reached based on credibility findings The decision of the
U.S Court of Appeals for the District of Columbia Cir-
cuit in Spencer v. NLRB, 712 F.2d 539 (D.C. Cir. 1983),
which analyzes the concept of "substantially justified,"
was also relied on by me in concluding that the General
Counsel's position was substantially justified and that the
instant EAJA application should be denied.
On the foregoing findings and conclusions and the
entire record, and pursuant to Section 102 153 of the
Board's Rules, I issue the following recommended'
ORDER
The General Counsel's 'motion to dismiss is granted,
and the Applicant's Motion to Recover Fees and Ex-
penses is denied.
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