Bennington Iron Works, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1986

278 N.L.R.B. 1087 (N.L.R.B. 1986)

BENNINGTON IRON WORKS
Bennington Iron Works, Inc. and United Steelwork-
ers of America, AFL-CIO-CLC, Local Union
No. 8217 . Case 1-CA-16581(E)
20 March 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 17 January 1984 Administrative Law Judge
Richard L. Denison issued the attached supplemen-
tal decision . 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 record and the
supplemental decision 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
It is ordered that the application of the Appli-
cant, Bennington Iron Works, Inc., Bennington,
Vermont, for an award under the Equal Access to
Justice Act be dismissed.
' The legislative history of the Equal Access to Justice Act, 5 U.S.C. §
504 (1982) (EAJA), in discussing the defense of substantial justification,
states that -[w]here the Government can show that its case had a reason-
able basis in law and fact , no award will be made ." H.R. Rep . 96-1418 at
10, reprinted in (1980) U.S. Code Cong. & Ad. News 4984, 4989. Ac-
cordingly, we do not adopt the judge 's statement that "where there is a
showing that the government's case had a reasonable basis in law or fact,
no award will be made." (Emphasis added .) However , we agree with the
reasoning the judge provided in finding the General Counsel 's position to
be substantially justified . We believe that the definition of "substantially
justified" was not altered , but merely clarified, by Congress when it
amended EAJA in Pub . L. 99-80, 99 Stat . 183 (Aug . 5, 1985). As stated
in the conference report accompanying the amendments , "substantially
justified" means "more than mere reasonableness." H.R. Conf. Rep. No.
99-120 at 9 . We conclude that the General Counsel 's position met this
standard.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
RICHARD L . DENISON , Administrative Law Judge.
This is a supplemental proceeding under the Equal
Access to Justice Act (EAJA), Pub. L. 96-481, 94 Stat.
2325, pursuant to Section 102.143 of the Board 's Rules
and Regulations.
On September 29, 1983, the National Labor Relations
Board issued a Decision and Order in Case 1-CA-16581,
concluding that the Respondent had not violated the Na-
tional Labor Relations Act under the circumstances pre-
sented . On October 27, 1983, the Respondent filed with
the Board an Application for Award of Fees and Ex-
1087
penses under the Equal Access to Justice Act, which the
Board referred to me for appropriate action . On Decem-
ber 15, 1983, the General Counsel filed a motion to dis-
miss the application .' On January 3, 1984, the applicant
filed a response.
In his motion the General Counsel urges that his posi-
tion in the unfair labor practice litigation before me was
"substantially justified" within the meaning of EAJA
section 504(a)(1), and therefore the application should be
dismissed . I agree . Therefore, I find it unnecessary to ad-
dress the remaining grounds relied on by the General
Counsel.
In the unfair labor practice proceeding the General
Counsel's theory was that the Respondent unlawfully
made unilateral changes in wages, hours, and working
conditions, and refused to bargain for a new contract
with the certified bargaining agent of its employees,
based on a petition signed by a majority of the bargain-
ing unit disavowing the Union, but which was "tainted"
by the ratified activities, in support of the petition, of a
unit member and admitted supervisor . Certain of the su-
pervisor's activities involved conversations with rank-
and-file unit employees in which the supervisor allegedly
interrogated employees concerning their union activities
and desired , and promised them money , and other bene-
fits to abandon the Union, thereby independently violat-
ing Section 8(a)(1) of the Act. The General Counsel in-
troduced testimony of witnesses to these conversations,
which I credited. The General Counsel also adduced
credited testimony from Respondent's vice president
concerning his remarks in conversations with Supervisor
Denofrio from which I concluded that the Respondent
was responsible for the unlawful activities of its supervi-
sor. Consequently, I found that the petition originated in
the context of unfair labor practices, and the Respondent
did not have a good-faith doubt of the Union's majority
status at the time it refused to bargain further, and imple-
mented certain unilateral changes in wages and benefits.
In its October 28, 1983, decision , the Board drew in-
ferences opposite from those drawn by me concerning
the testimony of Vice President Blackstone about his
statements in conversations with Supervisor Denofrio, on
which the judge relied in finding the Respondent respon-
sible for its supervisor's conduct. Having done so, the
Board then concluded that it was "mere speculation" to
conclude that Respondent authorized or encouraged
Denofrio's conduct, and dismissed the complaint.
Under EAJA section 504(a)(1) this application must be
dismissed if the General Counsel's position is "substan-
tially justified." The test is one of reasonableness, and
where there is a showing that the Government's case
had a reasonable basis in law or in fact, no award will be
made . Moreover, no adverse inferences are to be drawn
from the fact that the Government did not prevail. Nor
is the fact that the Board and the judge disagreed suffi-
cient to negate substantial justification. The General
Counsel's theory of the case was clear, consistent, and
based on long established and clear governing law,
which the General Counsel expeditiously pursued during
' Pursuant to an extension of time I granted.
278 NLRB No. 159
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a brief 2-day trial, which was not complex . The General
Counsel was not in a position either to resolve credibility
issues, as was the judge , who heard and observed the
witnesses . Where such issues are important to a determi-
nation of whether or not to proceed to litigation, the
General Counsel has little choice but to issue a complaint
and, absent settlement , advance to trial . Likewise, in in-
stances where, as here, more than one set of inferences
may be drawn from the given circumstances , the Gener-
al Counsel has no sure method of evaluating what the
trier of fact may find or what an appellate tribunal may
conclude . In summary , in the instant unfair labor prac-
tice proceeding the General Counsel 's case was based on
well established precedent, and a reasonable and logical-
ly arguable legal theory . That he did not prevail is insuf-
ficient to sustain the application . Accordingly, the appli-
cation must be dismissed.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
It is ordered that the application is dismissed.
a 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.