B.E.F. Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 134 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B.E.F. Manufacturing Company, Inc. and Southern
Missouri-Arkansas District Council, Interna-
tional Ladies' Garment Workers' Union, AFL-
CIO. Case 26-CA-10022(E)
30 April 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 24 October 1983 Administrative Law Judge
William N. Cates issued the attached decision. The
Applicant filed exceptions and a supporting brief,
and the General Counsel filed a cross-exception.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision 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 recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the application of B.E.F.
Manufacturing Company, Inc., Earle, Arkansas, for
attorneys' fees and expenses under the Equal
Access to Justice Act is denied.
SUPPLEMENTAL DECISION
(EQUAL ACCESS TO JUSTICE ACT)
WILLIAM N. CATES, Administrative Law Judge. On
June 27, 1983, 1 issued a decision in the above-styled case
finding that B.E.F. Manufacturing Company, Inc., herein
Applicant, had violated Section 8(a)(1) of the National
Labor Relations Act, herein Act, by threatening physical
harm to its employees if they testified at a National
Labor Relations Board hearing against one of its supervi-
sors, but dismissing the complaint allegations that the
Applicant threatened its employees with loss of jobs be-
cause of their union activities; threatened to close its
plant if the employees went on strike; threatened to use
violence against its employees if they went on strike; and
threatened its employees with the futility of having the
Union because it would prolong negotiations as long as it
could. I also dismissed the complaint allegation that the
Applicant discharged employee Donnie Cheers in viola-
tion of Section 8(a)(3) of the Act. No exceptions to this
decision were filed with the Board, and on August 2,
1983, the Board issued its Order adopting my findings
and conclusions and ordered the Applicant to take the
action set forth in my recommended Order.
On August 29, 1983, the Applicant filed an application
for fees and expenses in the amount of $18,780.07 and a
motion to withhold disclosure pursuant to the Equal
Access to Justice Act, Pub. L. 96-481, 94 Stat. 2325 and
270 NLRB No. 24
Section 102.43 of the Board's Rules and Regulations. By
Order of the Board dated August 31, 1983, and pursuant
to Section 102.148(b) of its Rules and Regulations, the
application was referred to me.
On September 9, 1983, the Applicant filed a motion to
amend its application for fees and expenses to include a
$456.30 transcript cost.
On September 22, 1983, the General Counsel filed a
motion to dismiss the application' on a number of
grounds alleging, in essence, that (1) the Applicant
should not recover attorney fees because the case in-
volved bona fide credibility issues and, thus, the General
Counsel's position in the case was substantially justified
within the meaning of the Equal Access to Justice Act;
(2) the Applicant failed to demonstrate that it meets all
the eligibility requirements to apply for an award for fees
and expenses under the Equal Access to Justice Act, in
that it failed to file with the General Counsel a detailed
statement of its net worth and whether there are any af-
filiates and subsidiaries of the Applicant; (3) the Appli-
cant improperly seeks attorney fees in excess of $75 per
hour, and seeks fees which are not recoverable; (4) the
Applicant failed to provide an itemized statement solely
in connection with that portion of the proceeding in
which it prevailed and is improperly seeking recovery of
fees for that portion of the case which it lost.
On October 6, 1983, the Applicant filed a response to
the motion to dismiss its application for fees and ex-
penses and again stated that the General Counsel's posi-
tion at trial was not "reasonable in law and fact." The
Applicant also contends in its response that it has sup-
plied all necessary financial data required by the Board's
Rules and Regulations pertaining to its application and
that the "per-hour" fees it has requested are as outlined
by the Board.
On October 13, 1983, the Applicant filed a second
motion to amend application for fees and expenses in
which it claims an additional $2,598.38 in fees and ex-
penses for time spent on the original application as well
as time spent on preparing its response to the General
Counsel's motion to dismiss its application.
Analysis and Conclusions
The Equal Access to Justice Act provides that an
agency that conducts an adversary adjudication shall
award to a prevailing party, other than the Government,
certain fees and expenses incurred by that party in con-
nection with that proceeding unless the adjudicative offi-
cer of the agency finds that the position of the agency
was "substantially justified" or that special circumstances
make an award unjust.2 As the Board noted in Enerhaul,
On September 26, 1983, the General Counsel filed a request to add
certain citations of administrative law judge decisions to its fn. 6 of its
motion to dismiss. On October 11, 1983, the General Counsel by telegram
renewed its motion to dismiss the application on the alleged basis that the
Applicant had failed to provide the General Counsel with necessary fi-
nancial data pertaining to the Applicant. On October 12, 1983, the Appli-
cant by telegram stated it had filed the necessary financial data with the
Executive Secretary of the Board and contends such service is sufficient,
but would serve such financial data on the General Counsel if required.
I There are no contentions of any special circumstances in the instant
case.
134
B.E.F. MFG. CO.
Inc., 263 NLRB 890 (1982), the legislative history of the
Equal Access to Justice Act characterized "substantially
justified" as a test of reasonableness.
Based on the evidence in this case, I conclude that the
position taken by the General Counsel in the complaint
proceeding was substantially justified and reasonable in
law and fact.s It is immaterial that the General Counsel
failed to establish a prima facie case. SME Cement, Inc.,
267 NLRB 763 (1983). The General Counsel presented
evidence which, if I had credited, would have constitut-
ed a prima facie case of unlawful conduct on the part of
the Applicant. For example, if Donnie Cheers' testimony
had been credited that Supervisor Earl Ott told him in
the summer of 1982 that if the employees of the Appli-
cant went on strike he would sit at the gate and take his
shotgun and pick them off one by one as they came
through the gate, such would have constituted a threat
to use violence against employees if they went on strike
in violation of Section 8(aXl) of the Act. Also if the tes-
timony of employees Larry Williams and Ricky Lee Wil-
liams had been credited, their testimony regarding com-
ments made to them by Supervisor Ott in the summer of
1982 would have supported a finding of a violation of
Section 8(aX1) of the Act involving a threat that em-
ployees would lose their jobs and the plant would close
if they went on strike for the Union.
If employee Curtis Williams' testimony had been cred-
ited where he testified that alleged Supervisor Albert
Davis had indicated that whether the Union came in or
not the Applicant was going to prolong negotiations,
such would have constituted a threat of futility in having
a union at the Applicant if Davis had been found to be a
supervisor within the meaning of Section 2(11) of the
Act. There was sufficient indirect arguable evidence that
s Having found the General Counsel's position to be substantially justi-
fied, I find it unnecessary to pass on the other issues raised in the applica-
tion, the motion to dismiss, and other documents filed by the Applicant
and the General Counsel.
Davis was a supervisor to substantially justify the Gener-
al Counsel's action in litigating the issue.
If discharged employee Donnie Cheers' testimony had
been credited that he was given permission by Assistant
Supervisor Revelle on November' 10, 1982, to build the
table top he did, then that fact taken in conjunction with
the fact that Cheers served on the negotiating committee
and was then subsequently discharged would have raised
an inference that protected conduct was a "motivating
factor" in his discharge. Such an inference would have
been greately enhanced when coupled with the other tes-
timony, detailed elsewhere in this decision, if it had been
credited. Finally, if the testimony of employee Richard
Harris had been credited (he testified that Plant Manager
Tom Fournier stated to him he could have prevented
Cheers from being discharged but that Chairman of the
Board Saul Bursk and President Max Elms wanted to get
rid of Cheers because he was strong on the Union) the
General Counsel would have established a strong prima
facie case.
Accordingly, it is my opinion that the General Coun-
sel's position in the instant case was "substantially justi-
fied." I therefore further find that the Applicant has suf-
fered no fees or expenses of litigation recoverable under
the Equal Access to Justice Act.
On the foregoing findings and conclusions and on the
entire record in this proceeding, and pursuant to Section
102.153 of the Board's Rules and Regulations, I issue the
following recommended4
ORDER
The application of B.E.F. Manufacturing Company,
Inc., Earle, Arkansas, for attorney's fees and expenses
under the Equal Access to Justice Act is hereby denied.
4 If no exceptions are filed a8 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.
135