Forest Grove Lumber Co.

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1431 (N.L.R.B. 1985)

FOREST GROVE LUMBER CO 1431
Forest Grove Lumber Company and Local 2845,
Lumber, Production and Industrial Workers.
Cases 36-CA-4559(E) and 36-CA-4594(E)
31 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 10 October 1985 Administrative Law Judge
Russell L . Stevens issued the attached supplemental
decision.' The Applicant filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief and brief in support of the judge's
decision.
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 in light of the exceptions and
briefs and has decided to affirm the judge 's rulings,
findings,2 and conclusions and to adopt the recom-
mended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the application of the Ap-
plicant, Forest Grove Lumber Company, Forest
Grove, Oregon, for attorney fees and expenses
under the Equal Access to Justice Act is denied.
1 The Board's original Decision and Order is reported at 275 NLRB
1007 (1985)
2 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)
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
RUSSELL L. STEVENS, Administrative Law Judge. The
complaint in Case 36-CA-4559(E) alleged that Forest
Grove Lumber Company (the Respondent) had violated
Section 8(a)(1) and (5) of the National Labor Relations
Act, as did the complaint in Case 36-CA-4594(E). The
two cases were consolidated for trial, and the matter was
heard in Portland, Oregon, on 16 October 1984. A deci-
sion was issued on 9 January 1985. The principal issues
were whether or not the Respondent had bypassed the
Union and dealt directly with unit employees, and
whether or not the strike involved in the case was
caused or prolonged by the Respondent's unfair labor
practices. My decision was that the Respondent disre-
garded and bypassed the Union and bargained and dealt
directly with its employees, but that the Respondent's
unfair labor practices did not cause or prolong the strike.
The decision also held that paragraph 7(e) of the com-
plaint, which was an amendment permitted over the Re-
spondent's objection, was not supported by the record.
That amendment was offered only as an additional in-
stance of the Respondent's alleged individually dealing
with employees. The General Counsel and the Charging
Party filed exceptions to the decision of 9 January. On 8
July 1985 the Board affirmed the rulings, findings, and
conclusions of the judge. On 5 August 1985 the Re-
spondent filed with the Board in Washington, D.C., an
"Application for Attorneys' Fees and Expenses" pursu-
ant to the Equal Access to Justice Act, Pub. L. 96-481,
94 Stat. 2325 and Section 102.143 of the Board's Rules
and Regulations. On 9 August 1985 the Board referred
the application to me for appropriate action. On 6 Sep-
tember 1985 the General Counsel filed an answer dated 5
September 1985, opposing the application to the extent
that it alleged the General Counsel was not substantially
justified in issuing the complaint. On 18 September 1985
counsel for the Respondent filed a motion to strike the
General Counsel's answer on the ground that it was un-
timely filed. On 23 September 1985 the General Counsel
filed an opposition to the Respondent"s motion to strike.
A. The Motion to Strike
The Respondent argues that the General Counsel's
answer was not filed until more than 30 days after serv-
ice of the Respondent's application on the General Coun-
sel. The proof of service relied on by the Respondent is
a copy of a letter enclosing the application, addressed to
the Board's Division of Judges in San Francisco, and
dated I August 1985.
Section 102.150 of the Board's Rules and Regulations
provides, inter alia, "within 30 days after service of an
application the General Counsel may file an answer to
the application."
Section 102.112 of the Board's Rules and Regulations
provides, inter alia, and in summary, that papers (the ap-
plication) may be served by registered or certified mail,
or by the State's method of service in civil actions. If
service is made by mail, proof of service is by return
post office receipt; if personally, then according to state
law.
The Respondent offered no acceptable proof of service
of the application. The date of the covering letter, 1
August 1985, is not proof of service on any date. The
Board's Order of 9 August 1985 states, inter alia, that the
Respondent's application was filed with it on 5 August
1985.
Section 102.114(a) of the Board's Rules states, inter
alia, and in summary, that 3 days are to be added to the
30-day response answer if service is by mail.
The General Counsel filed an answer on 5 September
1985. The 30 days prior thereto, plus 3 days for service
by mail, establishes a date of 3 August 1985, which was a
Saturday. The Respondent's application was sent, pre-
sumably, from the Respondent counsel's office in Port-
land, Oregon.
Counsel for the Respondent not having proved date of
service of the application as required by the Board's
277 NLRB No. 167
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rules and Regulations , and no reasonable cause having
been shown to strike the General Counsel's answer, the
Respondent 's motion to strike answer is denied.
B. The Substantial Justification Issue
The General Counsel's answer is limited to this issue.
No objections are made to the technical or procedural
portions of the application.
The Respondent prevailed at the trial on some of the
issues, but not on all of them. I found that the Respond-
ent dealt directly with employees in violation of the Act,
but that the economic strike was not converted to an
unfair labor practice strike.'
The matter of direct dealing with employees was re-
ferred to the judge for hearing, although the facts of that
issue never have been in serious dispute, and the Re-
spondent offered to admit that violation in a proposed
settlement of the issues.
The principal question has been whether or not the
Respondent's alleged unfair labor practices caused or
prolonged the strike. As noted in the decision, the strike
could not have been caused by the unfair labor practices,
all which occurred after the strike commenced. Howev-
er, this "caused by" allegation of the complaint is not a
discrete, substantive allegation and does not control any
issue . The prolongation allegation turned upon the ques-
tion of causation. As stated in my decision of 9 January
1985 "an unfair labor practice does not convert an eco-
nomic strike to an unfair labor practice strike unless a
causal connection is established between the unlawful
conduct and the prolongation of the strike," citing Rob-
bins Co., 233 NLRB 549 (1977). The trial was devoted in
large part to determining whether or not "a causal con-
nection" between the Respondent's unfair labor practice
and the strike existed. The General Counsel has relied
from the outset on Safeway Trails, 233 NLRB 1078
(1977), enfd. 641 F.2d 930 (D.C. Cir. 1979). If the Gener-
al Counsel's witnesses had been believed in their entirety,
and the Respondent's witnesses had not been believed,
the General Counsel could have presented a prima facie
case. Only by examining all facts of the case , and assign-
ing credibility, could it be determined whether or not the
causation factor was present. Those facets included nego-
tiation sessions, meetings between the parties, union
meetings, picket line conduct, matters presented by the
defense not earlier known to the General Counsel as de-
fensive, and other matters.
Ultimately it was found that Safeway Trails did not
control this case, but clearly, without full exposure of the
facts available only through such conclusion was not a
certainty. The Respondent argues that it contended all
along that Safeway Trails was distinguishable, but that
contention begs the question. It was based on the Re-
spondent's view of the facts, which happened to be the
correct view, but that is not to say that the General
Counsel's view of the facts was unreasonable or patently
wrong. As Safeway Trails shows, each case must be con-
sidered on its own merits, so far as prolongation is con-
cerned. There, the facts showed an effort by the employ-
er to undermine the union and its negotiator. With some
factual variation, possibly such an effort would not be
shown in some other case.2 Certainly it was not shown
here.
As discussed in the judge's decision, the Respondent's
Burnard did, in fact, disparage the Union when he dealt
directly with employees, although he denied doing so.
However, that situation does not stand alone. Other facts
established at the trial made it clear that the Union's
basic strike concern was economic, not what Burnard
may have said or done. In Safeway Trails, a basic strike
cause was the respondent's misconduct when it mounted
a harsh, direct attack against the union's negotiator
which inhibited the bargaining process. In this case, to
the contrary, the Union's negotiator, Perizzo, whom the
Respondent cross-examined extensively at the trial, made
it clear that both the Union and the Respondent were
"locked in" to their respective positions on the matter of
employee pay. That testimony, together with other facts
established for the first time at the trial, made it apparent
that economics, not unfair labor practices, prolonged the
strike. It would have been unreasonable, and possibly im-
proper, for the General Counsel to have conducted a
pretrial investigation in such a manner as to expose all
the facts established at the trial. The General Counsel
properly referred the case for trial, where all witnesses
would be under oath and subject to cross-examination.
It is found that the General Counsel substantially was
justified in her decision to issue the complaint herein,
and to pursue the matter through litigation.
On the foregoing findings and conclusions, the record
in the underlying unfair labor practice case, and the
pleadings herein, and pursuant to Section 102.153 of the
Board's Rules and Regulations, I issue the following rec-
ommended3
ORDER
The application of Forest Grove Lumber Company
for attorney fees and expenses under the Equal Access to
Justice Act is denied.
i The matter of amendment of par. 7(e) of the complaint is not control-
ling, nor is it of substance so far as the issues herein are concerned. It
was found that the allegations of par. 7(e) were not supported by the
record, but merely added another allegation of individual dealing by the
Respondent to those already alleged elsewhere in the complaint As
noted, the General Counsel prevailed at the trial, so far as the direct deal-
ing issue was concerned.
2 See, e g., Anchor Rome Mills, 86 NLRB 1120, 1122 (1949).
2 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.