Country Epicure, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1986

279 N.L.R.B. 807 (N.L.R.B. 1986)

COUNTRY EPICURE, INC.
Country Epicure , Inc. and Anthony Astrologo. Case
2-CA-20837(E)
30 April 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 18 December 1985 Administrative Law
Judge Joel P. Biblowitz issued the attached supple-
mental decision . The General Counsel filed excep-
tions and a supporting brief, and the Applicant
filed cross-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 decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Supplemental Decision and Order.
The complaint in the underlying proceeding al-
leged that the Applicant violated Section 8(a)(3)
and (1) of the Act by discharging Anthony Astro-
logo and preparing and maintaining documentation
regarding Astrologo's work attendance because of
his union activities.
On 24 September 1985 the Board' adopted the
judge's finding that the General Counsel had not
established a prima facie showing that protected
conduct was a motivating factor in the Applicant's
decision to discharge Astrologo. The judge found
that there was no evidence that the Applicant was
aware that Astrologo had engaged in union activi-
ties until after his discharge. The judge also found
that the attendance documentation had no effect on
the decision to discharge Astrologo, and that it was
not unreasonable for the Applicant to record As-
trologo's tardiness after he lied about his where-
abouts. The Board therefore adopted the judge's
recommended Order and dismissed the complaint.
In his supplemental decision the judge noted that
the mere fact that the General Counsel has failed
to establish a prima facie case does not necessarily
entitle the Applicant to fees. Enerhaul, Inc., 263
NLRB 890 (1982). The judge further stated, how-
ever, that for the General Counsel's position to be
substantially justified under the Equal Access to
Justice Act, the General Counsel must present evi-
dence which, if credited by the factfinder, would
constitute a prima facie case of unlawful conduct.
Natchez Coca-Cola Bottling Co., 269 NLRB 877,
878 (1984). The judge found that even having cred-
1 276 NLRB 436 (1985)
807
ited Astrologo's testimony, the General Counsel
failed to establish that the Applicant had knowl-
edge of Astrologo's union activity. The judge
therefore concluded that the General Counsel's po-
sition was not substantially justified and awarded
the Applicant $13,068.73 in fees.
In her exceptions the General Counsel contends
that she was substantially justified in pursuing this
case because the case turned on inferences to be
drawn from the facts. Under established Board
law,2 circumstantial evidence is sufficient to justify
an inference of knowledge. The General Counsel
argues that here there was a genuine issue whether
knowledge would be inferred from the facts and
that she was substantially justified in placing the
issue before the Board rather than resolving the
issue administratively. We agree.
The facts of the underlying case are as follows.
In June 1984,3 Astrologo, Applicant's only me-
chanic, discussed the need for a union with his im-
mediate supervisor, Bob Grigas. Grigas referred
Astrologo to his brother, a union organizer. Astro-
logo arranged for a union representative to meet
the employees, and invited the employees to a
party at his house. About 15 employees (including
Bob Grigas) attended. Allen Grigas, the union or-
ganizer, spoke at the meeting and handed out au-
thorization cards. The employees signed the cards
and gave them back to Grigas. About 4 days later,
Allen Grigas went to the Applicant's facility and
told Astrologo that the cards were invalid because
of the presence of a management official at the
meeting. Astrologo held another meeting at his
house, at which the employees again signed cards.
The employees gave the cards to Astrologo who
brought them to the Union.
On 3 July the Union demanded recognition as
the collective-bargaining representative of the Ap-
plicant's drivers, warehousemen, and mechanics.
The Applicant replied on 6 July, stating that it had
a good-faith doubt of the Union's majority status
and suggested that the Union file a petition with
the Board. The Applicant did not hear from the
Union again until 1 September when it received a
copy of the Union's petition.
On 18 July Astrologo left work to get parts at a
Datsun dealer. On the way, he saw the Applicant's
driver, Krell, at a gas station. Astrologo knew that
Krell's route required him to take Route 684 so he
waited for Krell at the entrance ramp. When Krell
arrived, Astrologo flagged him down and got into
2 See, e g , Dr Frederick Davidowitz , 277 NLRB 1046 (1985), Superior
Micro Film Systems, 201 NLRB 555 ( 1973), enfd mem 485 F . 2d 681 (3d
Cit. 1973)
' All dates are in 1984 unless otherwise indicated
279 NLRB No. 104
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Krell's truck. They discussed the condition of the
trucks for approximately 20 minutes.
Unbeknown to Astrologo, the Applicant's attor-
neys were driving on Route 684 and noticed the
Applicant's truck parked on the entrance ramp.
They saw two people in the truck and a car parked
behind the truck. They noted the truck number and
the car's license number. When they arrived at the
Applicant's facility, they reported their observa-
tions. That evening, the Respondent's president,
Stern, and vice president, Schneider, called Krell
into the office and asked him what he had been
doing on the ramp . Krell said Astrologo had
flagged him down, and that they were "just shoot-
ing the breeze."
The next morning Schneider asked Astrologo
where he had been the previous morning. Astro-
logo said he was picking up parts. Schneider told
him his car had been seen on the entrance ramp.
Astrologo said he had loaned his car to his brother
and that he had taken a truck to the Datsun dealer.
When Astrologo was told that Krell had said As-
trologo had flagged him down, Astrologo admitted
lying. Schneider asked him what was going on and,
according to Schneider, Astrologo said, "Well you
know it was all that Union shit." Astrologo testi-
fied that he answered, "It wasn't anything to do
with the Union." Schneider said if it had anything
with the Union he did not want to hear about it.
Schneider said that lying was a serious offense and
he would speak to Stern when he returned from a
business trip.
Beginning about 25 July, the Applicant's plant
manager started documenting Astrologo's attend-
ance and placing memoranda in Astrologo's per-
sonnel file. On 25 July Astrologo approached Stern
and told him that he would be in trouble if he lost
his job because he was on probation for threatening
to run down pickets at his previous job.
On 27 July Astrologo was terminated for lying
about his whereabouts. Schneider and Stern testi-
fied they were not aware of the attendance memo-
randa in Astrologo's file when they discharged
him. It is undisputed that until July the Applicant
had been satisfied with Astrologo's performance
and had given him a raise and a bonus. He had re-
ceived no written warnings.
The judge found that there was no evidence that
the Applicant was aware of Astrologo's union ac-
tivities before discharging him, and he noted that
Stern and Schneider testified that they assumed As-
trologo was antiunion because of his 25 July state-
ment to Stern that he had previously threatened
pickets. Supervisor Grigas never said anything
about the Union to Stern or Schneider and never
identified the union supporters. Stern and Schnei-
der testified that between 3 July and 1 September
when they received the Union's petition, they
thought the union drive had expired.
We find, contrary to the judge, that the General
Counsel was substantially justified in-believing that
the circumstantial evidence could justify an infer-
ence that the Applicant knew about Astrologo's
union activities. Most significantly, one of the Ap-
plicant's supervisors, Bob Grigas, knew of Astrolo-
go's union activities. In addition, the supervisor's
brother was the union organizer Astrologo had
contacted, and he came to the Applicant's facility
to discuss the authorization cards with Astrologo.
Moreover, Astrologo mentioned the Union to
Schneider after he admitted lying about his where-
abouts. When asked wat was going on, Astrologo
said, "It wasn't anything to do with the Union."4
Astrologo's denial of involvement in union activity
without being asked about the Union could have
caused suspicion that the Union actually was a sub-
ject of discussion on the entrance ramp. Further-
more, shortly after this discussion the Applicant
began to document Astrologo's attendance, activity
which could reasonably be construed as the Appli-
cant's building a record against Astrologo for
future adverse action. Also, the Applicant failed to
discipline Krell for the entrance ramp incident, and
this disparate treatment of Astrologo could reason-
ably be interpreted to indicate possible unlawful
motivation. Finally, the following factors could
further support an inference of knowledge: the
timing of the discharge, about 3 weeks after the
Applicant was made aware of the organizing drive;
the fact that Astrologo was the Applicant's only
mechanic, a classification specifically mentioned in
the Union's 3 July demand for recognition; and the
fact that until the events in this case Astrologo had
been a valued employee who had recently been
given a raise and a bonus, and had not received
any written warnings.
We believe that all these circumstances, particu-
larly the knowledge of Supervisor Grigas,5 could
have justified an inference of employer knowledge
and the finding of a prima facie case. Although the
judge and the Board in the underlying case did not
4 Schneider testified that Astrologo said, "Well you know it was all
that Union shit " The judge interpreted this statement to indicate that As-
trologo was against the Union However, we believe the statement is am-
biguous and could be interpreted to be an admission that the Union had
been discussed on the entrance ramp
5 See Dr Phillip Megdal, 267 NLRB 82 (1983) ("Ordinarily, we would
impute a supervisor's knowledge of an employee 's union activities to
the employer However, when it has been affirmatively established as a
matter of fact that a supervisor who learned of union activities did not
pass on the information to others, we are unwilling to find that
knowledge was conveyed as a matter of law ") Here, it was not until the
hearing that it was affirmatively established that Grigas did not pass on
his knowledge to any other of the Applicant's officials
COUNTRY EPICURE, INC.
infer knowledge because of the credited denials of
the Applicant's witnesses, the General Counsel was
substantially justified in bringing the issue before
the judge and the Board.6 Accordingly, we shall
deny the application for fees and expenses.7
ORDER
It is ordered that the application of the Appli-
cant, Country Epicure, Inc., Katonah, New York,
for an award under the Equal Access to Justice
Act is dismissed.
6 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)
In light of our ultimate disposition of the case, we find it unnecessary
to pass on the Applicant's cross-exceptions concerning the amount of fees
to which it claims it was entitled
Mary L. Bulls, Esq., for the General Counsel.
Clifford R. Oviatt, Esq., for the Respondent Applicant.
SUPPLEMENTAL DECISION AND ORDER
JOEL P. BIBLOWITZ, Administrative Law Judge. Coun-
try Epicure, Inc., the Applicant, in an application filed
23 October 19851 pursuant to the Equal Access to Jus-
tice Act, Pub. L. 96-481 Stat. 2325 and Section 102.143
of the Board's Rules and Regulations, seeks $17,518.73 in
fees and expenses incurred in defending the unfair labor
practice complaint in Case 2-CA-20837 (276 NLRB 436
(1985) alleging , inter alia , that Applicant discharged em-
ployee Anthony Astrologo due to his activities on behalf
of Teamsters Local 456, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousmen
and Helpers of America (the Union). The case was heard
by me on 1 May 1985; both sides filed briefs and my de-
cision issued 27 June 1985. The Board's Decision and
Order issued on 24 September 1985, without modifica-
tion
In my decision I found that the General Counsel had
not sustained her initial burden under Wright Line, 251
NLRB 1083 (1980), of establishing a prima facie showing
sufficient to support the inference that protected conduct
was a motivating factor in the Employer's decision to
discharge Astrologo. This was based on my finding that
there was no evidence that Applicant was aware that As-
trologo had engaged in activities on behalf of the Union
until January 1985, long after his discharge. In this
regard, I found that based on two uncontradicted con-
versations that Astrologo had with Respondent' s agents,
Applicant had good reason to believe that Astrologo
was, in fact, antiunion. The strongest evidence support-
ing the General Counsel's case was the timing of the dis-
charge, about a month after he contacted the Union and
had two parties at his house where his fellow employees
met a union organizer, and about 3 weeks after Appli-
i The Board 's Order, referring the application to me for appropriate
action , is dated 24 October 1985
809
cant received notification from the Union stating that it
represented a majority of Applicant 's employees and de-
manded recognition . The General Counsel made two ad-
ditional arguments which I rejected : that no action was
taken against John Krell, the employee whom Applicant
observed Astrologo talking to during working time, and
that Astrologo 's excellent work record prior to 18 July
1984 supports its allegation that his actions did not war-
rant discharge. However , I found that Krell's situation is
different from that of Astrologo as he admitted his pres-
ence with Astrologo at the time involved , and the nature
of Astrologo 's job involved few or no restrictions on his
movement ; when Applicant learned that he had lied to
them, the trust required for such a relationship was
broken.
Section 504(a)(1) of EAJA provides for an award to
be made to a prevailing party unless "the position of the
Agency as a party to the proceeding was substantially
justified ." This last term was defined by Congress as:
The test of whether or not a government action is
substantially justified is essentially one of reason-
ableness . Where the government can show that its
case had a reasonable basis both in law and in fact,
no award will be made.2
The Government's failure to prevail does not raise any
adverse inferences in-this regard:
The standard, however, should not be read to raise
a presumption that the government position was not
substantially justified, simply because it lost the
case . Nor, in fact, does the standard require the
government to establish that its decision to litigate
was based on a substantial probability of prevail-
ing.3
The mere fact that the General Counsel has failed to
establish a prima facie case does not, of itself, entitle Ap-
plicant to fees. Enerhaul, Inc., 263 NLRB 890 (1982).
Additionally, if a credibility finding was crucial to the
determination in the underlying matter, fees should like-
wise not be granted. Wolf Street Supermarkets, 266
NLRB 665 (1983). However, as stated by the administra-
tive law judge in Natchez Coca-Cola Bottling Co., 269
NLRB 877 at 878 (1984):
[ijor the General Counsel's position to be substan-
tially justified within the meaning of Section
102.144(a) the General Counsel must present evi-
dence which, if credited by the factfinder, would
constitute a prima facie case of unlawful conduct.
In the underlying matter herein no credibility finding
was necessary; I credited Astrologo and Applicant's wit-
nesses . Even having credited Astrologo's testimony, I
found that the General Counsel had not sustained her
burden under Wright Line as she failed to established
knowledge of Astrologo's union activity, and, in fact, I
8 S Rep 96-253, 96th Cong 1st Sess at 6, H Rep 96-1418, 96th
Cong 2d Sess at 10
3 S Rep 96-253, supra at 7, H Rep 96- 1418, supra at 11
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found Applicant was justified in assuming that he was
antiunion . I therefore find that the General Counsel's po-
sition was not substantially justified and that Applicant is
entitled to fees herein.
Applicant requests reimbursement in the following
amounts:
Disbursements-$1,848.73
Counsel fees : Clifford R. Oviatt, Esq.
44.5 hours at $175 an hour- $7,787.50
Counsel fees: Jeffrey L. Snyder, Esq.
72.5 hours at $75 an hour-$5,437.50
Counsel fees in pursuing EAJA claim:
44.5 hours at $55 an hour-$2,445.00
Total $17,518.73
Applicant alleges "that the extended and unjustified
proceeding Petitioner was forced to endure justifies lift-
ing the $75.00 per hour cap on fee awards ." The sole jus-
tification alleged by Applicant is "the extended nature of
this proceeding ." The General Counsel objects to Appli-
cant's requests for fees in excess of $75 an hour as un-
justified.
The Act, 5 U.S.C. 504 (b)( 1)(A), provides that "attor-
ney or agent fees shall not be awarded in excess of $75
per hour, unless the agency determines by regulation that
an increase in the cost of living or a special factor, such
as the limited availability of qualified attorneys or agents
for the proceedings involved, justifies a higher fee." Sec-
tion 102 . 145 of the Board 's Rules and Regulations limits
recoverable fees to $75 an hour and Section 102.146 re-
quires a petition requesting higher fees to state which of
the above factors are applicable . In Underwood v. Pierce,
761 F.2d 1342 (9th Cir . 1985), the court ruled that in de-
termining whether "special factors" exist , it is proper to
apply the factors listed in Kerr v. Screen Extras Guild,
526 F .2d 67 (9th Cir . 1975). These factors include the
novelty and difficulty of the issues involved and the skill
required to perform the services properly, the time and
labor required , and the experience , reputation , and ability
of the attorneys . Although Oviatt is an extremely capa-
ble and experienced attorney , the underlying case herein
involved a rather basic 8(aX3) allegation , which was con-
cluded in less that 1 day. This case presented no novel
issues , nor did it contain any other factors justifying a fee
in excess of $75 an hour . Applicant 's request is therefore
granted , except that the counsel fees of Clifford R.
Oviatt is reduced from $7787 . 50 to $3337 . 50 and the total
amount awarded shall be reduced to $13,068.73.
[Recomended Order omitted from publication.]