Bud's Woodfire Oven LLC d/b/a Ava's Pizzeria

National Labor Relations Board - Administrative Judge Opinions

Nov 6, 2019

05-CA-194577 (N.L.R.B. Nov. 6, 2019)

JD−87−19
St. Mary’s, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BUD’S WOODFIRE OVEN, LLC d/b/a
AVA’S PIZZERIA
and Case 05-CA-194577
RALPH D. GROVES, AN INDIVIDUAL
Oluwatosin Fadarey and Patrick J. Cullen, Esqs.,
for the General Counsel.
Adam E. Konstas and Leslie Robert Stellman, Esqs.,
for the Respondent.
SUPPLEMENTAL DECISION AND ORDER
MICHAEL A. ROSAS, Administrative Law Judge. This is a Supplemental Decision and
Order regarding an application for an award of allowable fees and expenses pursuant to the Equal
Access to Justice Act, Pub. L 96-481, 94 Stat. 2325 and Sections 102.143–102.55 of the Rules and
Regulations (the Rules) of the National Labor Relations Board (the Board) filed by Bud’s
Woodfire Oven LLC d/b/a Ava’s Pizzeria (the Respondent).
STATEMENT OF THE CASE
On May 18, 2018, I issued a Decision and Order in the above-captioned matter.1 In that
decision, I found that the Respondent’s mandatory and binding arbitration agreement explicitly
interfered with employees’ Section 7 rights under the of the National Labor Relations Act (the
Act)2 to file charges and obtain remedies through the Board. Accordingly, I concluded that the
Respondent engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) . However, I dismissed the Section 8(a)(1) allegation that the
Charging Party, Ralph Groves (Groves), was unlawfully discharged for exercising his Section 7
rights to engage in protected concerted activity since the preponderance of the evidence failed to
establish that Groves’ activities were protected and/or concerted. The General Counsel and
Respondent each filed exceptions and briefs in support of their respective positions. On August
16, 2019, the Board affirmed my rulings, findings, and conclusions in this case.3

1 Bud’s Woodfire Oven, LLC d/b/a Ava’s Pizzeria, No. 2018 WL2298221 (May 18, 2018).
2 29 USC §§ 142–159.
3 Bud’s Woodfire Oven, LLC d/b/a Ava’s Pizzeria, 368 NLRB No. 45 (2019).
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FINDINGS OF FACT
A. The EAJA Application
On September 10, 2019, the Respondent submitted an Application for Award of Fees and 5
Expenses pursuant to Sections 102.43–102.55 of the Board’s Rules (“EAJA application”). By
order of the Board issued September 12, 2019, the matter was referred to Chief Administrative
Law Judge Robert A. Giannasi for appropriate action.4 The General Counsel filed her opposition
to the Respondent’s application on October 15, 2019. The Respondent then filed a motion for
leave to amend the EAJA application on October 16, 2019. The General Counsel’s reply to the 10
Respondent’s motion for leave for the amended EAJA application on October 24, 2019 reiterated
her opposition to the application, but did not otherwise oppose the motion for leave to amend the
EAJA application. The motion for leave to amend the application is granted.
The EAJA application, as amended, originates from an unfair labor practice charge 15
originally filed by Groves on March 8, 2017. Groves’ original charge asserted the Respondent
violated Section 8(a)(1) of the Act. The complaint was premised on the allegation that he engaged
in protected concerted activity when he complained that general manager Brian Ball “doesn’t do
shit around here” at a staff meeting. On March 28, 2017, the Regional Director for Region 5
requested that the Respondent provide evidence to refute Groves’ allegations. 20
Region 5 informed the Respondent on August 10, 2017 that it would move forward with
Groves’ charge. Region 5 examiner Sumintra Aumiller (Aumiller) notified the Respondent that
Region 5 found the allegations in the case meritorious. In an e-mail dated August 17, 2017, the
Respondent replied to Aumiller that it found issues undermining the merits of the case, and that an 25
administrative law judge would likely dismiss the complaint. (R. Am. Appl. 6.) The General
Counsel filed the complaint on August 24, 2017. The Respondent filed its answer on September 5,
2017, and a motion to postpone on October 31, 2017.
The General Counsel filed the first amended complaint on November 3, 2017. The 30
amended complaint added the charge that the Respondent’s mandatory arbitration agreement
violated Section 8(a)(4) and (1). The General Counsel requested that the Respondent provide more
information on the amended charge on November 8, 2017. The Respondent filed a response to the
amended complaint on November 15, 2017. The Director of Region 5 notified the parties of the
hearing being rescheduled from December 7, 2017 to April 3, 2018, through an order issued on 35
November 28, 2017.
Before the April 3, 2018 hearing, Groves filed a second amended charge against the
Respondent. The second amended charge slightly modified the arbitration agreement claim.
Region 5 issued a new amended complaint on March 16, 2018, to which the Respondent filed an 40
answer on March 20, 2018.
B. The Decision and Order
I presided over the hearing on April 3, 2018. The witnesses included: Groves; the 45

4 The Board should have referred the Respondent’s EAJA application to the administrative law judge of
the underlying decision. See Section 102.148(b) of the Board’s Rules and Regulations.
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Respondent’s employees Jerome Butler and Lynell Harris; the Respondent’s bookkeeper and
human resources director, Alice Pelanne; the Respondent’s general manager, Brian Ball; and Imani
Nickens, a paralegal for the State of Maryland’s Unemployment Insurance litigation unit. I issued
my Decision on May 8, 2018 based on the following conclusions of fact and law:
5
● The Respondent discharged Groves because he criticized Ball at an October 15, 2016 staff
meeting for not doing anything to help out the kitchen staff;
● Groves’ statement of “how do you know you don’t do shit around here” to Ball during the
October 15, 2016 staff meeting did not constitute concerted protected activity under 10
Section 7 of the Act. The statement was a personal gripe, and not about terms and
conditions of employment;
● Neither Butler nor Harris corroborated the Groves’ testimony that other employees had
concerns or complained about Ball as a General Manager;15
● The Respondent’s mandatory and binding arbitration agreement, which explicitly interfered
with employees’ Section 7 rights to file charges and obtained remedies through the Board,
constituted an unfair labor practice within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.20
I did not, however, find sufficient evidence to support the allegation that the arbitration
agreement also violated Section 8(a)(4) and, thus, that charge was dismissed.
ANALYSIS AND CONCLUSIONS25
A. Eligibility under Section 102.143
The Board’s Rules and Regulations at Section 102.143 provide guidance for respondents
seeking an EAJA award. Section 101.143(b) requires an adversary adjudication in an unfair labor 30
practice proceeding. Under Section 102.143(b), the Respondent must have prevailed in the
adjudicative proceeding, or in a significant and discrete substantive portion of that proceeding. A
corporation is eligible to receive an award under Section 102.143(c)(5) if it has a net worth of not
more than $7 million and not more than 500 employees.
35
The Respondent meets the Section 102.143 eligibility requirements to file an EAJA
application. The May 18, 2018 decision qualifies as an adversary adjudication in an unfair labor
proceeding under Sections 104.133(a) and (b). The Respondent is a qualifying corporation under
Section 102.143(c)(5) because it has approximately 80 employees, and a net worth of not more
than $7 million. 40
B. Section 102.144 Substantial Justification Standard
After meeting the eligibility requirements, however, the Respondent must demonstrate that
it meets the “substantial justification” standard under Section 102.144. Section 102.144(a) states:45
“An eligible applicant may receive an award for fees and expenses incurred in
connection with a significant and discrete substantive portion of that proceeding,
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unless the position of the General Counsel over which the applicant has prevailed
was substantially justified. The burden of proof that an award should not be made
to an eligible applicant is on the General Counsel, who may avoid an award by
showing that the General Counsel’s position in the proceeding was substantially
justified.” [Emphasis added]5
Substantial justification requires reasonableness in fact and law. The Supreme Court
defines “substantially justified” as “justified to a degree that could satisfy a reasonable person,” or
“justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and
fact.” Pierce v. Underwood, 487 U.S. 552, 552 fn. 2 (1988) (defining standard of review for EAJA 10
applications). The substantial justification standard also applies if a reasonable person could draw
a set of inferences which support the General Counsel’s position. In re Meaden Screw Products
Co., 336 NLRB 298, 302–03 (reversing EAJA award determination when judge should have drawn
inferences from the record that would have supported the General Counsel’s position). The
General Counsel has a reasonable basis in law and fact if she presents substantially credible15
evidence that would constitute a prima facie case. Contemporary & Scandinavian Interiors, 272
NLRB 527, 527–29 (1984) (finding charge substantially justified when the General Counsel’s
precomplaint investigation revealed employee’s abrupt termination after union activities). The
General Counsel does not need to show that the litigation has a high probability of success, or even
persuasiveness. See Europlast, Ltd., 311 NLRB 1089, 1089–90 (1983) (judge not finding the 20
General Counsel’s witnesses credible did not negate substantial justification); Carmel Furniture
Corp., 277 NLRB 1105, 1106 (1985) (losing the case did not negate substantial justification). In
essence, the Board emphasizes that substantial justification “. . . is not intended to deter the agency
from bringing forward close questions.” In re Meaden Screw Products Co., 336 NLRB at 300.
25
C. The Respondent’s Arguments
The Respondent contends that the General Counsel was not substantially justified in
prosecuting the unfair labor practice charge because she “ventured forward in an attempt to test a
tenuous theory,” and that “[t]he hearing did not reveal any new evidence or present a dispute of 30
material fact for the ALJ to resolve.” (R. Am. Appl. 9.) The amended EAJA application
colorfully describes how
“. . .the General Counsel ran [Respondent] through the gauntlet of a total of three
charges soliciting multiple position statements on tangential issues. The General 35
Counsel then issued multiple complaints and tested its theory at a hearing before an
ALJ, and further before the Board—failing at both stages.” (R. Am. Appl. 10.)
The Respondent first argues that the General Counsel lacked merit to pursue the unfair
labor practice charges at all. The Respondent maintains that the General Counsel’s case had 40
obvious weaknesses from the start, which would defeat the notion that there was substantial
justification to pursue the charges. Hess Mech. Corp. v. NLRB, 112 F.3d 146, 150 (4th Cir. 1997)
(EAJA award granted due to “flimsiness” of the General Counsel’s case, when “wall of adverse
inferences” and uncorroborated testimony).
45
The Respondent refers to the multiple charges and complaints in this case to support its
argument. (R. Am. Appl. 10.) To support its obviousness argument, the Respondent references my
comment that it was “difficult to imagine” how Groves’ conduct would amount to protected
JD−87−19
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concerted activity. Bud’s Woodfire Oven, 2019 WL2298221. The Respondent also analogizes the
instant case to Hess Mechanical Corp. v. NLRB. In Hess, the Fourth Circuit found the employee
did not engage in concerted protected activity when he spoke to others about the union in isolated
statements. The court held that the employer permissibly fired the employee for non-animus
reasons. Hess Mech. Corp., 33 F.3d at 150–51 (finding Respondent entitled to EAJA award).5
The Respondent also argues that Groves only had two witnesses’ uncorroborated testimony
to support the protected concerted activity claim. The Respondent maintains that “ . . . [t]he
General Counsel called two witnesses who did not even supply affidavits during the investigatory
phase and who did not plainly support the position that Groves engaged in protected concerted 10
activity.” (R. Am. Appl. 9.) Citing to Leeward Auto Wreckers, Inc. v. NLRB, the Respondent
argues that credibility determinations need to be material to the outcome to support substantial
justification. 841 F.2d 1143, 1148–49 (reversing denial of EAJA application when the General
Counsel’s case lacked an actual, material conflict for the trier of fact to resolve). The General
Counsel criticizes the Respondent’s witness testimony argument as based on “. . . unsupported 15
factual assertions which are demonstrably false, namely, the identities of individuals from whom
the General Counsel sought and/or obtained affidavit information.” (GC’s Mot. Dismiss. 4.)
D. The Application Lacks Merit
20
The Respondent’s application is premised on the fact that I dismissed the Section 8(a)(1)
allegation that Groves was unlawfully discharged for exercising his Section 7 rights to engage in
protected concerted activity. It also overlooks one very decisive fact – that I found that the
Respondent’s mandatory and binding arbitration agreement explicitly interfered with employees’
Section 7 rights to engage in protected concerted activities. Accordingly, the application lacks 25
merit since the General Counsel proceeded to hearing on the basis of a partially meritorious
complaint and the Respondent fails to cite Board precedent warranting recovery in such instances.
Assuming, arguendo, that the Respondent is entitled to seek attorneys’ fees based on the
dismissed portion of the complaint, the application still fails. See Commissioner, I.N.S. v. Jean, 30
496 U.S. 154, 161–62 (1990) (directing courts to assess EAJA award determinations as an
inclusive whole). The General Counsel had the initial burden to establish that an employee’s
protected concerted activity in part motivated the employer to adversely act against him. Wright
Line, 251 NLRB 1083, 1089 (1980) (providing causation test for when protected activity is a
“motivating factor” in employer’s decision). The General Counsel meets this burden when it 35
shows the employee engaged in protected concerted activity, the employer had knowledge of that
activity, and that the employer harbored animus against such activity. See, e.g., Mesker Door, Inc.,
357 NLRB 591, 592 (2011) (finding that employer violated Section 8(a)(1) by suspending
employee after he discussed union issues with another employee). Once the General Counsel
makes this initial showing, the Respondent has the burden to prove that it would have taken the 40
same action even in the absence of the employee’s protected concerted activity. See Wright Line,
251 NLRB at 1089 (expanding on protected concerted activity standard).
But for the failure to prove by a preponderance of the evidence that Groves’ activity was
protected and concerted in nature, the evidence would have supported a finding and conclusion 45
that he was unlawfully discharged. Protected concerted activity often turns on close questions of
law and fact. The Board does not, however, dissuade general counsels from bringing forward
close questions. In re Meaden Screw Products Co., 336 NLRB at 300 (reversing EAJA award
JD−87−19
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grant on substantial justification grounds from inferences). Protected concerted activity includes
the terms and conditions of employment, such as working hours, the physical environment,
assignments, and responsibilities. New River Industries, Inc. v. NLRB, 945 F.2d 1290, 1294 (4th
Cir. 1991) (analyzing how the Act characterizes protected concerted activity). Concertedness also
includes circumstances where an individual uses a conversation to bring truly group complaints to 5
management’s attention. Alstate Maintenance., LLC, 367 NLRB No. 68 (2019) (weighing
“griping” v. group action under the Meyers II standard for when an individual’s remark is
concerted protected activity).
The General Counsel’s presentation of evidence regarding Groves’ activity at the October 10
15, 2016 staff meeting met the substantial justification standard for reasonableness. That standard
requires a reasonable person to think that the justification has a reasonable basis in law and fact.
See Pierce v. Underwood, 487 U.S. 552 fn. 2 (1988) (standard of review for substantial
justification in EAJA applications). Unlike Hess, the General Counsel did not pursue a case with
fatally apparent weaknesses. Hess Mech. Corp., 112 F.3d at 150 (finding case flimsy, and facing 15
insurmountable inferences, from the start). The credible evidence overwhelmingly established that
the General Counsel did not advocate a “tenuous theory” of protected concerted activity.
The General Counsel met the burden of showing both the “knowledge” and “adverse
action” elements of a Wright Line analysis. 251 NLRB at 1089. The employer had knowledge of 20
the activity when it discharged Groves for criticizing Ball for not doing anything to help out the
kitchen staff. Groves commented “how do you know you don’t do shit around here” at the staff
meeting. Groves’ remark followed Ball starting the staff meeting with “I didn’t come to work to be
anybody’s fucking babysitter.” Groves sought to undermine Ball’s general criticism of the staff
performance, matching the tone set by Ball. Ball further demonstrated his animus by discharging 25
Groves suspiciously close to the staff meeting, for admittedly shifting and unsubstantiated reasons.
These insufficiencies on Ball’s part precluded—had the initial element of protected concerted
activity been met—the employer from meeting the burden of establishing it would have acted in
the same manner absent the activity. See Parkview Lounge, LLC, 366 NLRB No. 71 (2018),
enforced, Parkland Lounge, LLC, No. 18-1600-AG, 2019 WL 5485931, at *2 (2d Cir. Oct. 25, 30
2019) (employer masked unlawful discharge motive for concerted protected activity when citing
inconsistent or shifting reasons).
The evidence establishes that the General Counsel reasonably believed that she was
substantially justified based on the factors articulated in Alstate Maintenance, LLC. 367 NLRB 35
No. 68. Reasonableness needs neither to be substantially probable nor persuasive. See Carmel
Furniture Corp., 277 NLRB at 1106 (not finding witnesses credible); Europlast, Ltd., 311 NLRB
at 1089 (government losing the case). The Board in Alstate Maintenance, LLC identified five
factors for inferring when an individual remark in a group meeting qualifies as “group action” for
protected concerted activity: (1) the statement occurred in a meeting which announced a decision 40
on terms and conditions of employment; (2) the decision affected more than one employee at the
meeting; (3) the employee who spoke up did so only to protest or complain about the decision; (4)
the speaker protested or complained about how the decision would impact the workforce, not just
himself; (5) the speaker did not have the opportunity to discuss the decision with employees
beforehand, because the meeting presented the first opportunity for employees to address the 45
decision. Alstate Maint., 367 NLRB No. 68. Groves’ comment occurred in a staff meeting in
response to the manager’s critical comments relating to employees terms and conditions of
employment. The decision impacted more than one of the Respondent’s employees. However,
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there was an actual, material dispute as to whether as to whether Groves’ activity met the fourth
and fifth factors for “group action” under Alstate Maintenance, LLC. Id.
The Respondent’s reliance on the insufficient corroboration of the witness testimony
presented does not undermine substantial justification. The close question of law and fact is 5
whether Groves engaged in protected concerted activity. I found that Ball and Groves provided
generally consistent accounts of the October 15, 2016 staff meeting. I also credited Groves’
testimony that he talked to coworkers about Ball’s inadequacies as a manager. I interpreted
Groves’ criticism as challenging Ball’s managerial duties and responsibilities which are obviously
entwined with the working conditions of the kitchen staff. Bud’s Woodfire Oven, LLC d/b/a Ava’s 10
Pizzeria, 2018 WL2298221. I also found, however, that neither Butler nor Harris sufficiently
corroborated Groves’s testimony that they shared his concerns or complained about Ball. Bud’s
Woodfire Oven, LLC d/b/a Ava’s Pizzeria, 2018 WL2298221.
Accordingly, the sustained complaint allegations based on the unlawfulness of the 15
Respondent’s arbitration agreement require denial of the application. Moreover, even though the
allegations relating to Groves’ discharge due to protected concerted activity were not sustained, I
find that the General Counsel was “substantially justified” in prosecuting those allegations as well
within the meaning of EAJA. See In re Meaden Screw Products Co., 336 NLRB at 300 (it was
possible to draw a different set of inferences from the evidence presented at the hearing that would 20
support, and substantially justify, the General Counsel’s position).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER 25
The application of Bud’s Woodfire Oven LLC d/b/a Ava’s Pizzeria, for attorneys’ fees and
other expenses under the Equal Access to Justice Act is denied.6
Dated, Washington, D.C. November 6, 201930

______________________________
Michael A. Rosas35
Administrative Law Judge

5 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 purposes.
6 Since the EAJA application is denied on the grounds that the General Counsel was substantially
justified in prosecuting Groves’ charges, I make no findings regarding the sufficiency of its proffered net
worth, fees and expenses.
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