C. I. Whitten Transfer Co.

National Labor Relations Board - Board Decisions

Aug 31, 1993

312 N.L.R.B. 28 (N.L.R.B. 1993)

28
312 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We adopt the judge’s conclusion that the General Counsel’s posi-
tion in the underlying unfair labor practice proceeding was substan-
tially justified. In so doing, we additionally note that, contrary to the
Applicant’s contention, certain of the judge’s findings in the pro-
ceeding involved credibility resolutions.
1 Sec. 203(a)(1) of the EAJA provides that only prevailing parties
are entitled to awards and that, even if the applicant prevailed, it
may not be awarded fees and expenses if the Government’s position
was substantially justified.
C. I. Whitten Transfer Co. and James LaFountain
and Michael E. Fowler. Cases 3–CA–16034(E)
and 3–CA–16052(E)
August 31, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 12, 1993, Administrative Law Judge Wil-
liam F. Jacobs issued the attached supplemental deci-
sion. The Applicant filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings, and conclusions1 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the application is denied.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
WILLIAM F. JACOBS, Administrative Law Judge. My deci-
sion in the above consolidated cases issued on May 29, 1992.
In this decision, I found that Respondent had violated Sec-
tion 8(a)(1) of the Act, as alleged in the complaint, on sev-
eral occasions but not on other occasions, and had not vio-
lated Section 8(a)(1) and (3) of the Act by unlawfully termi-
nating employees James LaFountain and Michael E. Fowler,
reducing Fowler’s work hours prior to his termination and re-
fusing to employ Fowler’s wife, Debra. I further found that
Respondent had not violated Section 8(a)(1) of the Act by
having its counsel threaten LaFountain on June 22, 1990, as
alleged.
On November 27, 1992, the Board adopted my rec-
ommended Order in its entirety, notwithstanding the filing of
exceptions, supporting briefs, and answering briefs by Gen-
eral Counsel and Respondent. Pursuant to the Equal Access
to Justice Act (EAJA), Public Law 96–481, 94 Stat. 2325
and Section 102.143ff of the Board’s Rules and Regulations,
Respondent on December 23, 1992, filed with the Board in
Washington, D.C., an Application for Attorney’s Fees with
Exhibits attached in support thereof. On January 7, 1993, the
Board referred this matter to me for appropriate action. On
January 20, 1993, General Counsel moved to dismiss the ap-
plication and thereafter Applicant filed its Response to Gen-
eral Counsel’s motion to dismiss; motion to amend applica-
tion and require filing of answer by General Counsel.
General Counsel’s motion to dismiss is based on several
grounds including the argument that the position taken by
General Counsel on the record was ‘‘substantially justi-
fied.’’1 On this point, I agree with General Counsel.
At issue is whether General Counsel was substantially jus-
tified in alleging in the complaint that Respondent violated
Section 8(a)(1) and (3) by unlawfully terminating James
LaFountain and Michael Fowler, by reducing Fowler’s work
hours prior to his termination and by refusing to employ
Fowler’s wife, Debra. Also at issue is whether General
Counsel was substantially justified in proceeding to trial on
these issues and then, after the hearing, filing cross-excep-
tions to the judge’s finding’s and conclusions regarding these
allegations. Finally, at issue is whether General Counsel was
substantially justified in alleging in the complaint that Re-
spondent’s counsel had threatened LaFountain on or about
June 22, 1990.
The record evidence on which the decision in this case
was grounded reflects that LaFountain and Fowler were in-
volved in early 1990 in various union activities including the
distribution of union representation cards, the making of ar-
rangements for a meeting at the union hall, and solicitation
of Respondent’s employees to attend that meeting.
After the filing of the petition for an election, members of
Respondent’s management engaged in interrogations and
threats, clearly indicating Respondent’s animus toward
prounion activists. Some of these threats were directed at
LaFountain and Fowler and it is clear that management was
aware of LaFountain’s and Fowler’s involvement with the
Union.
The election was held on June 22 and the Union lost. Fol-
lowing the tally of ballots, according to LaFountain’s testi-
mony Landes said to him, ‘‘I wish you luck, Jim, but you
won’t be here long.’’ Landes denied making this statement.
Following the Union’s defeat, during the weeks that fol-
lowed, members of management engaged in further interro-
gation and threats toward Respondent’s employees thus indi-
cating continued hostility toward union activists and sym-
pathizers. LaFountain, on his part, continued to openly
espouse interest in the Union, even if only for obtaining
union insurance.
On the day of LaFountain’s discharge, management re-
fused, albeit for good reasons, to tell him the reason for his
discharge. On December 6, he filed his charge.
With regard to the allegation concerning the reduction in
Michael Fowler’s hours, the record reflects that he was
promised as close to a 60-hour week as possible, and through
July that promise was kept. Records made available at trial
supported Respondent’s position that Fowler suffered no
discriminatorily motivated reduction in wages. Had the wage
records been made available to General Counsel during the
initial stages of the investigation, the allegation concerning
the reduction in Fowler’s hours might not have been included
in the complaint. With regard to Fowler’s discharge on Sep-
tember 21 and his charge filed December 21, if Respondent
29C. I. WHITTEN TRANSFER CO.
2 Lion Uniform, 285 NLRB 249 (1987).
3 Laborers Funds Administrative Office of Northern California,
302 NLRB 1031 (1991).
4 However, it is equally possible that had Respondent made its wit-
nesses available during the investigation, it might well have resulted
in conflicts of credibility which would have had to be resolved by
an administrative law judge at hearing. Advance Development Corp.,
277 NLRB 1086 (1985); Ellison Bakery, 304 NLRB 1131 (1991).
5 Lion Uniform, supra; Leeward Auto Wreckers, 283 NLRB 574
(1987).
6 Budget Rent-A-Car, 277 NLRB 1153 (1985); Bosk Paint & Sand-
blast Co., 270 NLRB 514 (1984); Lion Uniform, supra; Leeward
Auto Wreckers, supra.
7 My disposition of the substantial justification issue obviates the
necessity of reaching the other issues raised by General Counsel in
the motion to dismiss the application.
had produced witnesses to provide reasons for Fowler’s dis-
charge during the investigation, it might not have been the
subject of the allegation, included in the complaint.2
With regard to the allegation concerning Respondent’s
failure to employ Debra Fowler, the record indicates that Ms.
Fowler was not hired as an independent employee but to ac-
company her husband on his trips to Canada. When her hus-
band left the employ of Respondent, under circumstances
which were found to be, in my decision, not in violation of
the Act, there is no way I could find any violation with re-
gard to Respondent’s failure to employ Debra Fowler. How-
ever, if I had found that her husband was terminated for dis-
criminatory reasons, I might also have found that failure to
employ her was, likewise, in violation of the Act. I find that
General Counsel was substantially justified in alleging Debra
Fowler as a discriminatee.
Following the filing of the charges by LaFountain and
Fowler, during the investigation by the field examiner placed
in charge thereof, he requested that Respondent make avail-
able its witnesses to substantiate its position. Respondent, in
essence, refused to permit the investigator to interview and
take affidavits from members of management but, instead,
offered two self-serving letters, generally denying the allega-
tions contained in the charges. General Counsel was not obli-
gated to rely on these letters.3
If Respondent had made its witnesses available during the
investigation, as it did during the hearing, and if it had sup-
plied the investigator with the records it made available later,
it is quite reasonable to believe that the complaint might
never have issued.4 Respondent cannot now rely on its own
lack of cooperation to support its application for attorney’s
fees pursuant to Equal Access to Justice Act.5
For the reasons stated, I find that General Counsel was
substantially justified in issuing complaint in this matter.
With regard to the filing of cross-exceptions, I find that
General Counsel was substantially justified in taking this ac-
tion. My interpretation of the facts and evidence and applica-
tion of the law thereto was not the only interpretation and
application possible. Indeed, I found this case to be a close
one where, if heavier weight were given to one aspect there-
of, rather than another, my decision might well have been re-
versed. It was reasonable for General Counsel to attempt to
convince the Board that the position he took, contrary to my
own, was the more correct.6
Inasmuch as I have found the position of the General
Counsel, throughout all stages of the underlying unfair labor
practice case, to be substantially justified in law and fact,7
I shall recommend the application for attorney’s fees and ex-
penses be dismissed.
ORDER
It is ordered that the application be dismissed.