C. Factotum, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 2001

337 N.L.R.B. 1 (N.L.R.B. 2001)

1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
C. Factotum, Inc. and David Kulczycki and Ronald
Carter. Cases 7–CA–42352(1)(E) and 7–CA–
42352(2)(E).
December 19, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On September 7, 2001, Administrative Law Judge C.
Richard Miserendino issued the attached supplemental
decision. The Applicant, C. Factotum, Inc., filed excep­
tions and a supporting brief. The General Counsel filed a
reply brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
The Applicant contends that it is entit led to fees be-
cause, in the underlying case, 334 NLRB No. 23 (2001),
the judge recommended dismissing the allegations of
paragraph 8 of the complaint, for lack of evidence. Fee
determinations under EAJA are to be made by examining
the case as “an inclusive whole.” See Commissioner,
INS v. Jean, 496 U.S. 154, 162 (1990). We agree with
the judge that the General Counsel’s overall position in
the case was substantially justified, regardless of any
deficiencies involving paragraph 8.
Paragraph 8 alleged unlawful threats of job loss made
in late June 1999. Evidence of threats at that point in
time may have been lacking. But even so, the allegations
of paragraph 8 are essentially the same as those of para-
graph 9(a), which alleged threats of job loss in mid-July
1999. There was evidence supporting the General Coun­
sel’s view that threats were made then, although the
judge ultimately found that, considered in context, the
statements were not unlawful.
The Applicant’s reliance on Hess Mechanical Corp. v.
NLRB, 112 F.3d 146 (4th Cir. 1997), awarding EAJA
fees, is misplaced. There, the court concluded that the
General Counsel was not substantially justified in pro­
ceeding to issue a complaint without further investiga­
tion. The only precomplaint evidence supporting the
General Counsel’s position was the charging party’s af­
fidavit, and there was substantial uncontroverted evi­
dence supporting the respondent’s defense. Here, the
Applicant does not contend that the precomplaint evi­
dence raised a serious question about the complaint’s
viability.
ORDER
The recommended Order of the administrative law
judge is adopted and the application is denied.
Dated, Washington, D.C. December 19, 2001
Peter J. Hurtgen, Chairman
Wilma B. Liebman, Member
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Richard F. Czubaj, Esq., for the General Counsel.

John C. Dickinson, Esq., of Detroit, Michigan, for the Respon­

dent.
SUPPLEMENTAL DECISION
EQUAL ACCESS TO JUSTICE ACT
STATEMENT OF THE CASE
C. RICHARD M ISERENDINO, Administrative Law Judge. On
June 27, 2001, Counsel for the Respondent, C. Factotum, Inc.,
filed an application for attorneys fees and expenses pursuant to
the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (1982),
as amended, following the entry of an Order by the National
Labor Relations Board on May 30, 2001, adopting the findings,
conclusions, and recommended Order of this Administrative
Law Judge in the underlying unfair labor practice proceeding.
On July 23, 2001, Counsel for the General Counsel filed a mo­
tion to dismiss the application on the ground that the General
Counsel’s position was “substantially justified.” 5 U.S.C. §
504(a). The Respondent/applicant’s counsel did not file a re­
sponse to the motion to dismiss. The General Counsel’s argu­
ment in support of its contention that its position in the underly­
ing litigation was substantially justified is fully stated in the
motion to dismiss. I find that nothing would be served by re­
quiring the filing of an answer restating that argument.
The Board’s Rules and Regulations § 102.152(a) contem­
plate that the determination on an application for an award of
fees and expenses under EAJA ordinarily will be made on the
basis of the record in the underlying proceeding. I find that no
further proceedings are necessary in order to make a determina­
tion in this case.
FINDINGS OF FACT
I. THE UNDERLYING CASE
The consolidated complaint in the underlying case alleged
that in June and July 1999, the Respondent violated Section
8(a)(1) of the Act by threatening employees with loss of em­
ployment if they did not stop complaining about wages and
benefits; by threatening employees with loss of employment if
they questioned the Respondent or complained to the media
about their concerns regarding wages and benefits; by orally
promulgating an overly broad no-talking rule restricting em­
ployees from discussing the Union, or their wages and benefits,
while allowing them to discuss other subjects; and by enforcing
the oral no-talking rule. The consolidated complaint further
alleged that the Respondent violated Section 8(a)(3) of the Act
on or about August 6, 1999, by laying off and discharging
337 NLRB No. 1
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Charging Parties David Kulczycki and Ronald Carter. In my
decision, dated September 20, 2000, I found that the Act had
not been violated in any manner alleged in the complaint and I
recommended that the complaint be dismissed. On May 30,
2001, the Board entered an order adopting my findings, conclu­
sions, and recommended order.
II. THE APPLICABLE LEGAL STANDARD
Having prevailed in the underlying case, the applicant may
be entitled to an award of fees and expenses incurred in connec­
tion with the adversary adjudication, if the General Counsel
cannot show that his position in the underlying litigation was
substantially justified, by showing that his position in the pro­
ceeding was reasonable in law and fact, or unless special cir­
cumstances make the award sought unjust. Pierce v. Under-
wood, 487 U.S. 552 (1988); Tyler Business Systems v. NLRB,
695 F.2d 73 (4th Cir. 1982). The fact that the General Counsel
did not prevail in this litigation does not raise a presumption
that its position was not substantially justified, nor must it be
established that the decision to litigate was based upon a sub­
stantial probability of prevailing. Westerman, Inc., 266 NLRB
799 (1983). Likewise, the fact that the General Counsel failed
to establish a prima facie case is not determinative for purposes
of an EAJA award. Jim’s Big M, 266 NLRB 665 (1983).
III. ANALYSIS AND FINDINGS
Paragraphs 9(a)–(c) of the complaint essentially are the heart
and soul of the General Counsel’s case. There, it is alleged that
the Respondent orally promulgated an unlawful no-talking rule
that restricted the employees from discussing the Union, wages,
benefits or other terms and conditions of employment while
permitting employees to discuss other subjects. It further al­
leges that in accordance with the no-talking rule, employees
were told to stop talking about benefits, and they were threat­
ened with loss of employment if they questioned the Respon­
dent or complained to the media about their concerns regarding
benefits.
The evidence showed that in mid-July, the employees were
anxious to join the Union and to begin receiving union benefits.
The Union refused to accept the paycheck deductions for union
benefits, unless the Respondent signed a 5-year collective-
bargaining agreement. The Respondent was willing to sign a 1-
year contract. The stalemate delayed the receipt of benefits,1
which prompted the employees to question what was happening
to the paycheck deductions. In this connection, I found that
Charging Party Kulczycki had circulated rumors that the Re­
spondent’s owner was an embezzler and that he had diverted
the paycheck deductions for his own use. In making that find­
ing, I credited the testimony of two witnesses, employees
Kathie Patterson and Michael Mantyk, over Kulzycki. The
evidence showed that with increasing frequency, the employees
stopped working for 10–15 minute intervals to discuss these
issues, even though Respondent’s owner had held ongoing
meetings with the employees to keep them apprised of what
was occurring. The evidence also showed that because the em-
1 The evidence showed that the Respondent’s owner eventually paid
the paycheck deductions to the Union in November 1999.
ployees frequently stopped working for prolonged time periods
to talk about the status of their union benefits, production was
disrupted. I therefore found that it was the frequent work stop-
pages, and not the talking, that prompted the Respondent’s
owner to impose the no-talking rule. Brigadier Industries
Corp., 271 NLRB 656, 657 (1984).
In addition, I credited the testimony of the Respondent’s
owner that he told the employees “I don’t want to hear this talk
anymore,” referring to all of the questions—“I don’t want to
hear this talk anymore. I answered every question you had doz­
ens of time . . . talk on your own time, work on my time.” I also
found that in the context of telling them to talk on their own
time, the Respondent’s owner did not restrain or inhibit the
employees from discussing the Union or benefits during non-
working time. Thus, I found that the no-talking rule was pre­
sumptively valid.
The fact that I found certain testimony to be convincing, and
based on demeanor and the totality of the evidence, accepted it
as establishing a legitimate reason for imposing a no-talking
rule, does not mean that the General Counsel’s position was not
justified or unreasonable in law or fact. Absent that credited
testimony, and given the nature of the discussion among the
employees, it was not unreasonable for the General Counsel to
argue that it could be inferred from the evidence that the no-
talking rule was implemented to interfere with the employees’
union and protected concerted activities.
Further, and concerning the alleged discharges, my finding
that the no-talking rule was presumptively valid and that it did
not impose a blanket restriction on the employees discussing
the Union and/or union benefits, necessarily hindered the Gen­
eral Counsel in proving animus as a part of his initial eviden­
tiary burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Had I found the no-talking rule to be unlawful, evidence of
animus would have been present. I therefore find that because
the General Counsel was unable to satisfy his initial evidentiary
burden as a result of a series of my findings does not mean that
his position at the outset was not justified.
CONCLUSION
Under all of these circumstances, I find that the position
taken by General Counsel with respect to a key 8(a)(1) allega­
tion, as well as the 8(a)(3) allegations, was substantially justi­
fied and I recommend that the Respondent’s application pursu­
ant to EAJA be denied.2
ORDER
The Respondent’s application for an award of attorney’s fees
and expenses is denied.
Dated, Washington, D.C. September 7, 2001
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended 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.