Europlast, Ltd.

National Labor Relations Board - Board Decisions

Jun 16, 1993

311 N.L.R.B. 1089 (N.L.R.B. 1993)

1089
311 NLRB No. 116
EUROPLAST, LTD.
1 5 U.S.C. § 504 (1982).
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.
2 Wiese Plow Welding Co., 123 NLRB 616 (1959).
Europlast, Ltd. and Lucile Gauger and Sigrid
Laing. Cases 30–CA–10942(E) and 30–CA–
10942–2(E)
June 16, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 19, 1993, Administrative Law Judge
William F. Jacobs issued the attached supplemental de-
cision, pertinent portions of which are attached. The
Applicant filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
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, as
modified, and conclusions and to adopt the rec-
ommended Order.
The judge dismissed the Applicant’s application for
an award under the Equal Access to Justice Act,1 find-
ing, inter alia, that the General Counsel was substan-
tially justified in filing exceptions with the Board be-
cause the exceptions disputed the credibility determina-
tions reached by the judge. In affirming the judge’s
finding, we observe that the exceptions were based on
more than a dispute over the judge’s credibility resolu-
tions.
Even accepting the judge’s credibility resolutions,
the General Counsel reasonably argued that the judge
should have drawn other inferences from the record
that would have supported the General Counsel’s posi-
tion. For example, the General Counsel contended that
the judge erred in failing to infer from evidence of dis-
parate treatment in the issuance of warnings that the
Respondent Applicant would not have disciplined
Gauger and Laing absent their union activities. The
General Counsel also argued in his exceptions that it
was reasonable to infer from the shifting reasons prof-
fered by the Respondent for its delay in recalling
Gauger that the failure to recall Gauger before less
senior employees was discriminatorily motivated. Be-
cause it was possible to draw a set of inferences from
the circumstances here that would have supported the
General Counsel’s position, we find that the General
Counsel’s arguments had a reasonable basis in law and
fact and were therefore substantially justified within
the meaning of the Equal Access to Justice Act. See
Bennington Iron Works, 278 NLRB 1087, 1088 (1986).
That the arguments ultimately proved to be
unpersuasive is insufficient to sustain the application
because they were not insubstantial. Lion Uniform, 285
NLRB 249, 258 (1987). Accordingly, we shall dismiss
the application.
ORDER
The application of the Applicant, Europlast, Ltd.,
Endeavor, Wisconsin, for an award under the Equal
Access to Justice Act is dismissed.
APPENDIX
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
WILLIAM F. JACOBS, Administrative Law Judge. My deci-
sion in the above consolidated cases issued on June 30, 1992,
recommending dismissal of the complaint in its entirety. Sub-
sequently, the General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in support of
my decision. On October 27, 1992, the Board adopted the
recommended Order. Pursuant to the Equal Access to Justice
Act (EAJA), Public Law 96-481, 94 Stat. 2325 and Section
102.143 of the Board’s Rules and Regulations, Respondent,
on November 23, 1992, filed with the Board in Washington,
D.C., an application for fees and expenses with attachments
in support thereof. On November 2, 1992, the Board referred
this matter to me for appropriate action. Subsequently, the
General Counsel moved to dismiss the application and there-
after filed its opposition to General Counsel’s motion.
The General Counsel’s Motion to Dismiss is based on sev-
eral grounds including the argument that the position taken
by the General Counsel on the record as ‘‘substantially justi-
fied.’’1 I find this point well taken.
Thus, the Union, in October 1989, undertook an organiza-
tional drive among Respondent’s employees. The alleged
discriminatees were activists in the drive. Under the small
plant theory,2 the General Counsel could justifiably conclude
that the union activities both Gauger and Laing had come to
the attention of management. When, within a few days,
Laing was assigned more onerous tasks and subsequently
both Gauger and Laing received warnings concerning their
job performances, the General Counsel, relying on the timing
of events, was justified in crediting Gauger and Laing, and
in concluding that the measures taken by Respondent were
in retaliation for the union activities of the alleged
discriminatees. The General Counsel was also justified, rely-
ing on the testimony of Gauger and Laing, in taking the po-
sition that subsequent events, the failure of Respondent to re-
call Gauger and Laing in order of seniority and their eventual
termination, were part of the entire pattern of discrimination.
The scenario upon which the issuance of complaint was
grounded, is based chiefly on the testimony of Gauger,
Laing, and other witnesses which the General Counsel cred-
ited. Though the Region was made aware of the position of
Respondent during the investigation, it did not, of course,
enjoy the benefit of the detailed and credible testimony of
Respondent’s witnesses which was first made available late
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Natchez Coca-Cola Bottling Co. v. NLRB, 750 F.2d 1350 (5th
Cir. 1985), affg. Natchez Coca-Cola Co., 269 NLRB 877 (1984).
4 Leeward Auto Wreckers, 283 NLRB 574 (1987), modified as to
other issues, 841 F.2d 1143 (D.C. Cir. 1988); M.P.C. Plating, Inc.,
301 NLRB 785 (1991).
5 Temp Tech Industries v. NLRB, 756 F.2d 586 (7th Cir. 1985).
6 Lion Uniform, 285 NLRB 249 (1987).
7 Ibid.
8 My disposition of the substantial justification issue obviates the
necessity of reaching the other issues raised by the General Counsel
in the motion to dismiss the application.
in the trial, testimony supported in full by documentation not
made available earlier. Moreover, the General Counsel had
no way of foreseeing that I would make the credibility deter-
minations which I did, most frequently in favor of Respond-
ent’s witnesses and against those of the General Counsel. In-
deed, where it is foreseen that a particular case will be de-
cided on the basis of witnesses’ credibility, it is usually,
though not always,3 the trier of fact, and not the General
Counsel, which must determine whether a particular witness’
testimony is worthy of belief or should be discounted,4 and
the mere fact that I did not find the General Counsel’s wit-
nesses credible does not mean that the decision to issue com-
plaint and litigate the case was not substantially justified.5
Similarly, since the General Counsel could not foresee my
credibility determinations, there was substantial justification
for the filing of the brief.6 Exceptions were likewise substan-
tially justified.7
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,8
I shall recommend that the application for attorney’s fees and
expenses be dismissed.
ORDER
It is hereby ordered that the application be dismissed.