Bronaugh Motor Express, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1436 (N.L.R.B. 1985)

1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bronaugh Motor Express , Inc. and Teamsters Local
651, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and General Drivers, Warehouse-
men and Helpers , Local Union No. 89, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America'
Bronaugh Motor Express, Inc. and Quick Transpor-
tation , Inc. and Truck Drivers, Chauffeurs and
Helpers Local Union No. 100 a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Cases 9-
CA-18430-1(E), 9-CA-18448(E), and 9-CA-
18480(E)
31 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 4 October 1985 Administrative Law Judge
H. E. Lott issued the attached supplemental deci-
sion. The Applicants 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 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 the Appli-
cants, Bronaugh Motor Express, Inc. and Quick
Transportation, Inc., Lexington, Kentucky, for an
award under the Equal Access to Justice Act is
dismissed.
1 We believe that Congress , in revising the Equal Access to Justice
Act, 5 U S C § 504 (1982), as amended by Pub. L 99-80, 99 Stat 183
(1985), did not alter but merely clarified the definition of "substantially
justified " "Substantially justified" means more than "mere reasonable-
ness " H .R Rep 99-120 at 9 (1985)
James E. Horner, Esq., and James A. Mills, Esq., for the
General Counsel.
Malcolm L. McCune, Esq., Robert Cowan, Esq., and Wade
Cowan, Esq., (Gracey, Maddin, Cowan & Bird), of
Nashville, Tennessee, for the Respondent.
Elton Priddy, Esq. (Hardy, Logan and Priddy), of Louis-
ville, Kentucky, for Local 89.
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
STATEMENT OF THE CASE
H. E. LOTT, Administrative Law Judge. My decision
in the above case, dismissing all 8(a)(1), (3), and (5) alle-
gations in the complaint issued on 14 May 1984, Excep-
tions were taken by the General Counsel. The decision
was affirmed by the Board on 23 November 1984 (272
NLRB 1188 (1984)). Thereafter, pursuant to the Equal
Access to Justice Act (EAJA), Respondent (herein Ap-
plicant) filed with the Board in Washington, D C., on 17
December 1984, an application for an award of attorneys
fees and expenses with affidavits and briefs in support
thereof. The Board referred the case to me for disposi-
tion on 18 December 1984 pursuant to Section 102.148(b)
of the Board's Rules and Regulations. On 15 January
1985, the General Counsel filed a timely motion to dis-
miss with brief in support thereof. Applicant filed a re-
sponse to the General Counsel's motion on 25 January
1985.
The General Counsel's only contention is that Re-
spondent's application should be denied because he was
substantially justified in litigating the underlying com-
plaint allegations. The General Counsel argues that had
the conflicting evidence been resolved in his favor on the
alter ego and unilateral changes allegations, he could
have possibly prevailed. But, in any event he argues that
favorable credibility resolutions would have reasonably
justified in fact and in law the resulting litigation because
there was conflicting evidence on material issues in this
case. Applicant disputes the General Counsel's assertion
and contends that the General Counsel did not meet his
burden of showing that he was substantially justified in
prosecuting this case.
The alter ego allegations and the various alleged viola-
tions stemming from this issue constituted a substantial
portion of the underlying case. Addressing this issue, the
General Counsel presented considerable evidence to
prove that Bronaugh was the alter ego of CMSI and
Quick. For example, he offered evidence that Quick's
president was a former employee of Bronaugh and that
Bronaugh assisted in the formation of Quick. Further
evidence was offered to prove that CMSI, which was
owned and controlled by Bronaugh, provided all the ad-
ministrative, dispatching, maintenance, and supervisory
services for Quick Evidence was presented that Quick
leased office space at Bronaugh's business location and
also leased trailers and other equipment from Bronaugh.
The General Counsel also presented evidence that Quick
was hauling freight for some of Bronaugh's customers.
On the other hand, Respondent offered evidence that
Bronaugh's assistance to Quick was slight and that all the
financial transactions between Bronaugh and Quick were
at arms-length and for fair market value. Respondent
also produced evidence that Quick performed services
for very few of Bronaugh's customers and there was no
financial ownership interest between the two companies.
I credited Respondent's evidence on these material
issues as well as other issues and thus found no alter ego
277 NLRB No. 169
BRONAUGH MOTOR EXPRESS 1437
relationship between Bronaugh/CMSI and Quick. After
resolving the alter ego issue, it seemed reasonable to con-
clude based on the entire record that Respondent was
economically justified in discharging nearly all of its em-
ployees.
The General Counsel presented prima facie evidence
that Respondent made unilateral changes in employee
wages and benefits. However, I credited all of Respond-
ent's witnesses over those of the General Counsel's and
found that impasse in bargaining had been reached
before the changes were made. Accordingly, I dismissed
these allegations.
Analysis and Conclusions
Based on the record as a whole, the General Counsel
raised the inference that there was a close relationship
between Bronaugh/CMSI and Quick in the areas of
ownership, management, operation, equipment, supervi-
sion, and customers. However, Respondent successfully
rebutted all of the General Counsel's evidence not only
relating to the alter ego allegation but also the other
issues discussed above. Had Respondent not done this, a
different conclusion may have been reached on some or
all issues. Iowa Parcel Service, 266 NLRB 392 (1983).
Accordingly, I conclude that the General Counsel sub-
stantially justified her decision in issuing complaint, liti-
gating and taking exceptions to an adverse finding.
Therefore, I grant the General Counsel's motion to dis-
miss and recommend the following recommended"
ORDER
It is recommended that the application for attorneys
fees and expenses under the Equal Access to Justice Act
be dismissed.
' 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.