Frontier Dodge, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1985

277 N.L.R.B. 1242 (N.L.R.B. 1985)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frontier Dodge, Inc. and International Association
of Machinists and Aerospace Workers, AFL--
CIO, District Lodge No. 115 , Local- Lodge
1528. Case 32-CA-4779(E)
23 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSON
On 4 April 1985 Administrative Law Judge
Harold A. Kennedy issued the attached supplemen-
tal decision.' The Applicant filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
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, and conclusions2 and to adopt the recom-
mended Order.
ORDER
It is ordered that the application of the Appli-
cant, Frontier Dodge, Inc., Modesto, California,
for an award under the Equal Access to Justice
Act is dismissed.
272 NLRB 722 (1984)
z 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 "substantially,lus-
tified " "Substantially justified" means more than "mere reasonableness."
H R Rep 99-120 at 9 (1985)
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
HAROLD A. KENNEDY, Administrative Law Judge.
Frontier Dodge, Inc. has applied, pursuant 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,
for an award of attorney's fees and other expenses in-
curred in defending the complaint issued against it on
November 12, 1982. On September 29, 1983, I issued a
decision finding Respondent had not, contrary to the al-
legations of the complaint, bargained in good faith or
caused or prolonged an unfair labor strike. I did find Re-
spondent had engaged in certain 8(a)(1) violations and
recommended an order proscribing the same, but these
were relatively minor allegations in the case.
In its application, filed on November 2, 1984, and
thereafter referred to me for appropriate action, Frontier
Dodge asserts:
1. That it prevailed in a "significant and discrete sub-
stantial portion" of the proceeding-i.e., on the refusal-
to-bargain charges.
2. That the General Counsel was informed of the
Union's attempt to circumvent Frontier Dodge's bargain-
ing representative before issuance of the complaint.
3. That at the time of issuance of the complaint "it is
and was at the time of the issuance of the Complaint
herein a corporation with a net worth of not more than
five million dollars and not more than 500 employees."
4. That it is entitled to an award of $25,388.06 (based
on expenditures of 324.75 hours at $75 per hour and
$1031.81 in expenses).
The attorney for the General Counsel in his answer as-
serts that the General Counsel was "substantially justi-
fied" in issuing the complaint. He notes that my decision
was based largely on credibility resolutions, a "preroga-
tive of the judge" and not the General Counsel. He also
points out that the General Counsel's early awareness of
the Respondent's Continental Nut defense (195 NLRB
841 (1972)) does not establish Frontier Dodge's right to
an award, noting that the General Counsel was not com-
pelled to accept the defense as meritorious prior to trial.
The General Counsel's attorney points out, moreover,
that the Board, while affirming my decision, indicated
that Respondent 's Continental Nut defense was irrelevant
in the case . Finally, the General Counsel's attorney
points out that there is an apparent division of opinion
on the Board as to the applicability of Mar-Len Cabinets,
243 NLRB 523 (1973), a case which I had distinguished.
Applicant argues in its reply that the General Coun-
sel's answer sidesteps the issue raised in its application,
but I believe, and find, that the General Counsel has
shown that he was substantially justified and acted rea-
sonably in issuing the complaint and prosecuting it
through the hearing stage and on appeal to the Board.
My finding that Frontier Dodge did bargain in good
faith did turn largely on credibility determinations. I
credited Frontier Dodge's spokesman, David Strimling,
over the Union's spokesman , Robert Elsholz. But for
such determinations, Frontier Dodge would not have
prevailed on the 8(a)(5) charges. Frontier Dodge's
"second point" pressed in its reply, that the General
Counsel "was aware of the Union's unlawful conduct
... upon which a settlement agreement was taken from
the Union," does not establish that the General Counsel
proceeded without substantial justification. It is enough
to say on this point, as the General Counsel's attorney
did in his answer, that the General Counsel had main-
tained that Continental Nut defense has application only
where there is bad-faith bargaining at the table by a
union , and the Board's decision herein has indicated that
the Continental Nut decision was not relevant here.
Thus, I find that the General Counsel had a reasonable
basis and substantial justification for issuing the com-
plaint and prosecuting it through an appeal to the Board.
On the foregoing findings and conclusions, the record
in the underlying unfair labor practice and the pleadings
herein, and pursuant to Section 102.153 of the Board's
277 NLRB No. 141
FRONTIER DODGE 1243
Rules and Regulations , I issue the following recommend- ORDER,-,
edt
' If no exceptions are filed as provided b Sec 102 46 of the Board'y s
IT IS ORDERED that , the, application of the Applicant
Frontier Dodge, Inc., for an award under the Equal
Access to Justice Act be dismissed..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.