Danzansky Goldberg Memorial Chapels, Inc

National Labor Relations Board - Board Decisions

Oct 23, 1984

272 N.L.R.B. 903 (N.L.R.B. 1984)

DANZANSKY GOLDBERG CHAPELS 903
Danzansky Goldberg Memorial Chapels, Inc and
Drivers, Chauffeurs, and Helpers Local Union
639, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America Cases 5-CA-11956(E), 5-
CA-11971(E), 5-CA-12443, and 5-CA-
13052(E)
23 October 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER AND
DENNIS
On 8 March 1984 Administrative Law Judge
Stephen J Gross issued the attached supplemental
decision Applicant Danzansky Goldberg Memorial
Chapels, Inc filed exceptions and a supporting
brief and the General Counsel filed an answering
brief 1
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the supplemental deci
sion and the record 2 in light of the exceptions and
briefs and has decided to affirm the judge s rulings,
findings, and conclusions and to adopt the recom
mended Order
ORDER
It is ordered that the application of the Appli
cant, Danzansky Goldberg Memorial Chapels, Inc ,
Rockville, Maryland, for an award under the Equal
Access To Justice Act be dismissed
' Inasmuch as we are dismissing the Applicant s application on its
merits we deny the General Counsel s motion to strike the Applicant s
brief which was accepted because of administrative oversight for ex
ceeding the 50 page limit Sec 102 46(J) of the Board s Rules and Regu
lations
2 The Applicant s request for oral argument is denied as the record and
the briefs adequately present the issues and the positions of the parties
SUPPLEMENTAL DECISION
[Equal Access to Justice Act]
I INTRODUCTION
STEPHEN J GROSS Administrative Law Judge On
February 11 1982 I issued a decision that concluded
that Danzansky Goldberg Memorial Chapels (Dan
zansky Goldberg or the Company) had committed some
of the violations of the Act alleged by the General
Counsel but that the Company had not committed nu
merous others On September 30 1982 the Board af
firmed my findings and conclusions' except in certain
limited respects 2
Danzansky Goldberg thereafter applied for an award
of $24 998 76 in attorneys fees pursuant to the Equal
Access to Justice Act (EAJA) 3
My conclusion is that the General Counsel was sub
stannally justified in bringing action against the Compa
ny and that no award of attorneys fees is warranted The
reasoning that led me to this conclusion is discussed in
part II below But the parties have raised several prelimi
nary matters that first need to be considered
Ii PRELIMINARY MATTERS
The General Counsel s Motion to Strike
One of the alleged discnminatees in the underlying
case Robert Ontko obtained a second job (in addition to
his job with the Company) The decision in the underly
ing case concluded that Ontko could not handle the
physical demands of two jobs and that the two jobs led
to among other things a deterioration in Ontko s per
formance as an employee of Danzansky Goldberg
In the Company s reply to the General Counsel s
answer in this (EAJA) proceeding the Company con
tends that the General Counsel knew or should have
known prior to the issuance of the complaint that
Ontko had taken on the burden of two jobs In support
of that contention the Company s reply cites a portion of
an affidavit that Ontko had provided to the General
Counsel prior to the issuance of the complaint in the un
denying proceeding and attaches a portion of that affida
vit to the reply (Shortly after this EAJA proceeding got
underway the General Counsel provided all Jencks Act
materials including Ontko s affidavit to Danzansky
Goldberg in response to a request by the Company
under the Freedom of Information Act )
The General Counsel has moved to strike the portion
of Ontko s affidavit attached to the Company s reply
The heart of the General Counsel s motion to strike in
his contention that under the Board s EAJA regulations
a determination concerning whether the General Counsel
was substantially justified in issuing a complaint is to be
based solely on the facts of record in the underlying pro
ceeding It is not the function of an EAJA proceeding
the General Counsel argues to subjectively probe the
Regional Director s thought processes in light of evi
dence never in the record in order to argue that the de
cision to issue the complaint itself was not reasonable
(Motion to strike at 2-3)
My conclusion is that the General Counsel s motion to
strike should be denied
Under EAJA eligible private parties are entitled to re
imbursement of legal fees and cost unless the Govern
ment can show that its action was substantially justified
Nothing in EAJA or its legislative history provides that
determinations about whether the Government was sub
'264 NLRB 840 (1982)
2 See id at fn 2
3 Danzansky Goldberg also seeks any additional fees and expenses it
incurs in this proceeding subsequent to the date of its application (Octo
her 29 1982)
272 NLRB No 139
e
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantially justified are to be based solely on the evidentia-
ry record in the underlying case. It is easy to construct
any number of hypothetical situations in which EAJA's
purposes could best be met by allowing a party to show
that the record in the underlying case was misleading re-
garding whether the Government was justified in bring-
ing the action. (In one recent EAJA case, for example,
the General Counsel contended that its position in the
underlying proceeding had been weakened by the un-
foreseeable unavailability of prospective witnesses. In
that EAJA proceeding the General Counsel submitted the
affidavits of such unavailable witnesses that had been ob-
tained during the investigation of the unfair labor prac-
tice charge. The applicant in that proceeding apparently
did not object to that submission and it was duly taken
into account by the administrative law judge.)4
On the other hand, it is inconceivable that Congress
intended EAJA proceedings either to be probes of the
thought processes of the Government officials responsi-
ble for instituting litigation or to be plenary examinations
of whether such officials conducted sufficiently broad
prelitigation investigations. 5 Here, however, the object
of the General Counsel's motion to strike is merely the
affidavit of a witness in the underlying proceeding.
There is no reason to believe that allowing either the
Government or an EAJA applicant to use nonrecord ma-
terials of that nature would either unduly lengthen
EAJA proceedings or amount to a probe of anyone's
thought processes.6
Danzansky-Goldberg's Motion to Compel
Production of Documents
Shortly after this EAJA proceeding began the Compa-
ny requested the following documents from the General
Counsel:
The entire investigatory files (excluding all
formal documents), including but not limited to all
final investigatory reports; all affidavits; all internal
memoranda relating to either the decision to issue a
complaint in the [underlying] unfair labor practice
case or to seek to set aside [certain related settle-
ment agreements]; and any file memoranda relating
to interviews with the Charging Party . . . [and]
neutral and Company witnesses.
As touched on above, the General Counsel did make
available to the Company all Jencks Act materials that
had been turned over during the unfair labor practice
hearing. (Technically the Jencks Act materials were
4 Metallic Lathers Local 46, JD-43-83 slip op 9, Case 2-RC-6021(E)
(1983).
5 Cf Iowa Parcel Service, 266 NLRB 392 at fn 1 (1983)
6 There do not seem to be any cases that specifically address this point
The parties refer to two lines of cases typified by Alspach v District Di-
rector of Internal Revenue, 527 F Supp 225, 228 (D MD 1981), and Natu-
ral Resources Defense Council v Environmental Protection Agency, 703 F.2d
700, 707 (3d Cu. 1983) But those cases go to an altogether different issue
(having to do with whether the Government must substantially Justify
the governmental acts that led to the litigation—such as the Improper is-
suance of a regulation or the incorrect claim of tax liability—or Just the
litigation itself) See generally Spencer v NLRB, 712 F 2d 539 (DC Cif
1983)
made available pursuant to the Company's Freedom of
Information Act request rather than the Company's re-
quest for production of documents.) But in other respects
the General Counsel denied the Company's request for
production of documents. That denial led the Company
to file a motion to compel production of documents. In
that motion, the Company asks that I order the General
Counsel to provide to the Company the documents it
had previously requested from the General Counsel, and
that should the General Counsel fail to comply with my
order, I forthwith grant the Company's application for
award of attorneys fees and expenses.1
Since the General Counsel has provided the Company
with all Jencks Act materials, the Company's motion is
moot to that extent. As for the remaining documents
sought by Danzansky-Goldberg, the short answer is that
Section 102.118 of the Board's Rules and Regulations
precludes the granting of the motion. And nothing in the
Board's EAJA rules supersedes the prohibition contained
in Section 102.118: Lion Uniform, Janesville Apparel Divi-
sion, Case 10-CA-12948(E), telegraphic order dated No-
vember 15, 1982. In theory, I suppose, I could deny the
Company's motion for production of documents, but
then go on to conclude that, nonetheless, a failure of the
General Counsel to provide the documents to Dan-
zansky-Goldberg raises a presumption that the General
Counsel had failed to appropriately investigate the
charges that led to this proceeding. But even assuming
that in some circumstances such a presumption could be
made without unduly circumventing the purposes of Sec-
tion 102.118, it does not seem to me that there is any-
thing about the circumstances of this proceeding that
warrant that kind of presumption. Accordingly, Dan-
zansky-Goldberg's motion to compel production of doc-
uments is denied in all respects.5
Financial Criteria
The General Counsel's answer to the Company's appli-
cation claimed that the application failed to provide suffi-
cient financial and ownership information to permit a de-
termination of whether the Company's net worth, to-
gether with that of its affiliates, in fact totaled less than
$5 million. In response, Danzansky-Goldberg submitted
affidavits providing additional information concerning its
finances and affiliates. It appears from that information
that Danzansky-Goldberg does in fact meet EAJA's fi-
nancial standards. And while the data the Company sub-
mitted have not been tested through a hearing process or
the like, the General Counsel has not suggested that he
has any reason to believe they may be erroneous.
7 The Company first made its motion to compel production on Decem-
ber 30, 1982 By order dated January 26, 1983, I denied that motion as
premature but granted the Company the right to renew the motion later
in the proceeding Danzansky-Goldberg did so in a "renewed motion"
dated June 15, 1983
8 Danzansky-Goldberg claims that its motion to compel production of
documents presents "novel and significant issues" under EAJA worthy of
oral argument, and requests that I provide an opportunity for oral argu-
ment regarding the motion That request is denied The documents before
me provide a sufficient basis for ruling on the motion, and the parties will
have further opportunity to discuss the matter on brief to the Board
DANZANSKY GOLDBERG CHAPELS

905
The Merits of the Company s EAJA Application
The evidence relating to the various unfair labor prac
tice allegations is discussed in considerable detail in the
Board s decision This supplemental decision will assume
that the reader is familiar with the underlying decision
will discuss only those facts that are particularly note
worthy for EAJA purposes and will generally rely on
the underlying decision s recitation of the evidence for
the conclusions reached here
Fanning s Job Assignments
Relative to antiunion employee Jenkins Danzansky
Goldberg s management did keep Fanning away from
public contact And Burchell claimed that the Company
continually assigned demeaning jobs to Fanning while
giving the prestigious ones to Jenkins Moreover there
was ample evidence of marked union animus on Gold
berg s part Finally management referred specifically to
Fanning as a troublemaker at least partially because of
his protected activities
At some point however an employee s behavior can
be sufficiently reprehensible that even given the forego
ing kinds of evidence the employer s actions against the
employee are so obviously warranted that it would be
unreasonable for the General Counsel to allege unlawful
discrimination as the basis for the employer s acts The
question is whether that point was reached here
The question is a close one But given the strength of
the General Counsel s prima facie case (particularly Bur
chell s testimony and the evidence relating to Goldberg s
animus) my conclusion is that the General Counsel was
substantially justified in contending that the Company s
assignment of jobs to Fanning was affected by Fanning s
proumon stance
Ontko s Job Assignments
Again as in Fanning s case the deciding factor is Bur
chell s testimony about management s dislike of Ontko
because of his support for the Union and about the job
discrimination against Ontko Given those claims by Bur
chell it was reasonable for the General Counsel to con
tend that Ontko s protected activities affected the Corn
pany s choice of job assignments—notwithstanding the
compelling lawful reasons the Company had for treating
Ontko as it did
Ontko s Discharge
Danzansky Goldberg s EAJA case regarding the Gen
eral Counsel s allegations about Ontko s discharge would
be a powerful one but for one factor Ontko did not in
fact make the mistake that the Company claimed precipi
tated his discharge Manifestly one could reasonably con
dude that management would have been less quick to
reach the wrong conclusion about Ontko s performance
on the day he was fired had Ontko not been prounion
Burchell s Discharge
There was testimony that had it been credited could
have led the Board to conclude that Danzansky Gold
berg hired Burchell because she was antiunion Had the
Board reached that conclusion it could readily have also
concluded that the Company would look for ways to rid
itself of her once she began supporting the Union Van
ous facets of Burchell s protected activity did irritate
management And there was testimony that not long
before Tickner fired Burchell he stated that he would
soon be rid of her Finally the actions by Burchell that
led to her discharge were not so heinous as to compel
the Company to fire her Absent ' the unique complica
tions involving Dubin at least a lighter form of disci
plme would have been entirely reasonable Under the
circumstances the General Counsel s allegation about
Danzansky Goldberg s firing of Burchell was substantial
ly justified 9
The Impression of Surveillance Allegation
The statement that the General Counsel alleged gave
the impression of surveillance was made by Goldberg at
a time when one of the employees who overheard it rea
sonably believed that the management was using a coy
ertly installed microphone to eavesdrop on conversations
in the employee lounge and the other two employees in
volved soon came to share that belief The General
Counsel could reasonably conclude that many kinds of
statements that would be harmless in most situations
would be coercive in the circumstances at hand and that
Goldberg s remark came within that category
The Chapel Cleaning
A decertification election was held on July 16 1980
Management expected a vote favoring decertification by
a wide margin But that did not happen because Bur
chell to management s surprise voted against decertifi
cation The following day Burchell and Ontko were as
signed a task that the Company had never before given
the funeral directors or apprentices cleaning the chapel
An antiunion funeral director was also assigned an oner
ous cleaning task but for a shorter period
The Board concluded that the Company made the as
signments in good faith but the statement of facts alone
shows that the General Counsel had a reasonable basis
for claiming that the episode amounted to unlawful dB
cnmination against Burchell and Ontko
The Alleged Promise of a Cleaning Contract
Burchell s testimony painted one picture Goldberg s
another The issue was strictly one of credibility resolu
tion Moreover Burchell s testimony was not so implau
sible (given the situation at the funeral home) that the
General Counsel should have discounted it
Restricting Union Adherents to the Employee
Lounge
Despite the Company s rule that employees take their
breaks only in the employee lounge the Company al
lowed antiunion employee Jenkins to spend his nonwork
9 Dubin s discharge was inextricably linked to Burchell s and accord
ingly the litigation concerning her discharge did not amount to a signifi
cant and discrete substantive portion of the proceeding Sec 102 143 of
the Board s Rules and Regulations
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time in other areas The Board dismissed the General
Counsel s allegation regarding this matter but only after
concluding that the issue is a close one Clearly the
General Counsel was substantially justified in making the
allegation
The General Counsel s Exceptions
I will assume that under some circumstances the Gen
eral Counsel would not be justified in excepting to a rec
ommended decision even though he was justified in lift
gating the case through all earlier stages but much of
the underlying proceeding herein hinged on credibility
resolution and the Board is empowered to resolve ques
lions of credibility differently from the administrative
law judge and sometimes does so Darling Inc 267
NLRB 476 (1983) Moreover the Board agreed with the
General Counsel that my findings contained some factual
errors 264 NLRB 840 at fn 2
The Board of course is in a better position than I am
to determine whether a party filing exceptions with the
Board was justified in doing so But based on the consid
erations discussed above my recommendation is that the
Board conclude that the General Counsel acted reason
ably in excepting to my recommended decision and
order
Danzansky Goldberg s Cooperation with the
General Counsel
The Company points out that it cooperated fully with
the General Counsel s investigation of the various
charges brought by the Union and it urges that that
should be considered when evaluating whether the Gen
eral Counsel was justified in pursuing the underlying
gation I agree Because of that cooperation the General
Counsel was promptly apprised of such matters as Fan
ning s and Ontko s shortcomings as employees and of
Tickner s contentions regarding the facts of Burchell s
and Dubin s trip to the airport
It is that cooperation that has made some of the issues
raised by the EAJA application so close The issues in
this proceeding would have been much easier to re
solve—in the General Counsel s favor—if during the
General Counsel s investigation of the charges the Com
pany had withheld information from him regarding the
bases for its behavior
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed"
ORDER
The application of Danzansky Goldberg Memorial
Chapels Inc for an award under the Equal Access to
Justice Act is denied
10 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