Glesby Wholesale, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1059 (N.L.R.B. 2003)

GLESBY WHOLESALE, INC. 1059
Glesby Wholesale, Inc. and Teamsters Local No. 853,
International Brotherhood of Teamsters, AFL–
CIO. Cases 32–CA–19146(E) and 32–CA–
19241(E)
November 28, 2003
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND SCHAUMBER
On September 4, 2002, Administrative Law Judge Jay
R. Pollock issued the attached supplemental decision.
The Applicant filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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, and
conclusions and to adopt the recommended Order.
The issue here is whether the Respondent-Applicant is
entitled to attorney’s fees and expenses under the Equal
Access to Justice Act (EAJA). We conclude that the
General Counsel’s position as a whole was substantially
justified, and that the Applicant is therefore not entitled
to an EAJA award.
I. BACKGROUND
The General Counsel’s complaint alleged that the Ap-
plicant violated the Act by (1) interrogating Russell
Johnson on two occasions about his union activity; (2)
denying Russell Johnson a day’s work because of his un-
ion activity; (3) offering to keep Russell’s son Eugene
employed if Russell would stop supporting the Union; and
(4) later terminating Eugene, also because of Russell’s
union activity.
The judge issued his decision in the underlying case on
March 15, 2002, finding the following material facts:
The Union began a campaign to organize the Applicant’s
warehouse and driver employees in September 2001.1
Russell Johnson was one of the first employees to con-
tact the Union, and he solicited other employees to sign
union authorizations cards. On September 20, Russell
Johnson happened to be present when the Applicant’s
general manager, Dennis Scharffenberg, received a copy
of the Union’s petition for an election. Scharffenberg
asked Johnson whether he had any knowledge of the
petition, and Johnson denied having such knowledge.
On September 28, Scharffenberg said to Johnson, “By
now you’ve seen the petition, and I hope I have your

1 All subsequent dates are in 2001.
support.”2 This time Johnson said he knew about the
petition and was partly responsible for it. The judge
found, as a matter of law, that Scharffenberg’s question-
ing of Johnson was not unlawfully coercive.
On October 1, 3 days after the second alleged interro-
gation, Russell Johnson was sent home for the day, al-
legedly because of his union activity, when he arrived at
work late due to a preapproved doctor’s appointment.
The Applicant contended, and the judge found, that
Johnson was sent home solely due to lack of work.
Eugene Johnson, Russell’s son, had been hired in June
by the Applicant as a driver. He was terminated on Fri-
day, November 16. At the hearing, the Applicant’s wit-
nesses testified that Eugene was told, at the outset, that
he was being hired only as a temporary replacement for
another driver, Mike Rogers, who was on leave due to
injury. Eugene denied that he was told this, as did Rus-
sell Johnson. Russell also testified that, in October, the
Applicant’s operations manager, Robert Avila, told him
he could save Eugene’s job if Russell would cease his
union activity. Avila denied having said this, and the
judge credited Avila. The judge credited the Applicant’s
witnesses, found that Eugene was hired only as a tempo-
rary driver during Rogers’ disability leave and was not
promised permanent employment, and concluded that
Eugene was terminated solely because Rogers had re-
turned to work.
Based on these findings, the judge dismissed the com-
plaint.3 The General Counsel filed no exceptions, and
the judge’s decision accordingly became final.
On May 30, 2002, the Applicant filed its EAJA appli-
cation, asserting that the General Counsel had no sub-
stantial basis for litigating the allegations concerning the
interrogations, the denial of work to Russell Johnson, and
the termination of Eugene Johnson. However, the Appli-
cant did not seek fees with respect to the allegation that
Avila unlawfully offered to keep Eugene employed; nor
did the Applicant contend that that allegation lacked sub-
stantial justification. In addition, the Applicant has not
excepted to the judge’s finding—which accordingly be-
comes final—that the Region had substantial justification
for making the allegation that Eugene Johnson was
unlawfully terminated. The Applicant rather claims that
the General Counsel should have moved for dismissal of
this allegation at the end of trial.
2 The General Counsel alleged that this statement was implicitly a
question as to whether Johnson supported the Union or the Respondent.
3 The judge’s underlying decision also addressed objections to the
election held on November 2, 2001. The judge upheld a challenge to
the ballot of Eugene Johnson, on the ground that he was a temporary
employee not eligible to vote.
340 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
On July 17, 2002, the General Counsel filed an answer
opposing an EAJA award.
II. ANALYSIS
A. EAJA Standards
EAJA entitles an eligible prevailing party in an agency
adversary adjudication to an award of attorney fees
unless the agency’s position was “substantially justified
. . . on the basis of the administrative record, as a whole
. . . .” 5 U.S.C. § 504(a)(1). The Board’s rules imple-
menting EAJA specify that an eligible respondent who
prevails in a Board proceeding, “or in a significant and
discrete substantive portion of that proceeding,” may be
awarded EAJA fees. NLRB Rules and Regulations Sec-
tion 102.143(b).
For the purpose of deciding whether the bringing of a
case was substantially justified, “[w]hile the parties’ pos-
tures on individual matters may be more or less justified,
the EAJA . . . favors treating a case as an inclusive whole
rather than as atomized line-items.” Commissioner, INS
v. Jean, 496 U.S. 154, 161–162 (1990); C. Factotum, 337
NLRB 1 (2001). Accordingly, the Board does not award
EAJA fees for individual complaint allegations on which
an applicant might have prevailed, but determines
whether the allegations as “an inclusive whole” were
substantially justified. And the Board makes that deter-
mination at each successive phase or “discrete substan-
tive portion” of the litigation.4 E.g., Quality C.A.T.V. v.
NLRB, 969 F.2d 541, 545–546 (7th Cir. 1992); Meaden
Screw Products, 336 NLRB 298, 299–302 (2001);
Blaylock Electric, 319 NLRB 928, 929–932 (1995), affd.
121 F.3d 1230 (9th Cir. 1997). Where the General
Counsel's position as a whole was substantially justified
at a particular stage of the litigation, no EAJA fees for
that stage will be awarded, even if certain allegations,
considered individually, were not substantially justified
at that stage.
An agency’s position on a particular allegation is “sub-
stantially justified” when the evidence is “what a reason-
able mind might accept as adequate to support a conclu-
sion”—i.e., where “reasonable people could differ” on
whether the allegation should be litigated. Pierce v. Un-
derwood, 487 U.S. 552, 563–566 (1987). See also
Teamsters Local 741, 321 NLRB 886, 889 (1996);
Jansen Distributing, 291 NLRB 801 fn. 2 (1988). This
standard is not as demanding as “justified to a high de-
gree” or “substantial probability of prevailing.” Pierce,
supra; Meaden Screw Products, supra; Galloway School
Lines, 315 NLRB 473 (1994).

4 A separate determination is not required, however, for the EAJA
phase. Jean, 496 U.S. at 162.
“Credibility issues which are not subject to resolution
by the General Counsel in the investigative stage of a
proceeding on the basis of documents or other objective
evidence are, in the first instance, the exclusive province
of the administrative law judge. Accordingly, where the
General Counsel is compelled by the existence of a sub-
stantial credibility issue to pursue the litigation, and
thereafter presents evidence which, if credited, would
constitute a prima facie case, the General Counsel’s case
has a reasonable basis in law and fact and is substantially
justified.” David Allen Co., 335 NLRB 783, 784–785
(2001).
B. The Investigatory and Hearing Phases
The Applicant first asserts that the General Counsel
had no substantial justification for pursuing most of the
allegations to hearing because they were based on credi-
bility conflicts that should have been resolved during the
Region’s prehearing investigation. However, we need
not address the Region’s investigation because, as noted
above, the Applicant does not challenge the judge’s find-
ing that the Region was substantially justified in bringing
to hearing the termination allegation involving Eugene
Johnson. As the judge noted, this was the most signifi-
cant allegation in the case. In addition, by not making an
EAJA claim with respect to the allegation of Avila’s co-
ercive offer to keep Eugene employed, the Applicant
implicitly acknowledges that that allegation was also
justified. Since these two allegations constitute a sub-
stantial part of the entire case, the General Counsel’s
case as a whole was substantially justified at least
through trial. An award of EAJA fees is therefore not
warranted for the investigatory and hearing phases of the
case.
C. The Posthearing Phase
The Applicant further contends that by the close of the
hearing the evidence was so one-sided that the General
Counsel should have moved for dismissal at that time of
the allegations concerning interrogations and discrimina-
tion against Russell and Eugene Johnson.
We agree with the judge that the allegation involving
Eugene Johnson’s termination did not lose substantial
justification in the light of the trial evidence. By the
close of the hearing it was undisputed that the Applicant
had knowledge of Russell Johnson’s union activity be-
fore Eugene was terminated. Moreover, as noted above,
there was a credibility dispute between Russell Johnson
and Avila as to Avila’s alleged offer to keep Eugene em-
ployed if Russell would discontinue his union activity.
As the judge found, other credibility issues remained as
to what Eugene was initially told about his job status,
and whether he was later told he would be kept on after
GLESBY WHOLESALE, INC. 1061
the disabled employee, Rogers, returned. Furthermore,
even if Eugene had only temporary status in his particu-
lar job (as the judge found), that fact alone would not
have precluded the Applicant’s retaining him in a differ-
ent job after Rogers returned to work.
For all of these reasons, the issue of the Applicant’s
motivation for Eugene’s termination was still in dispute
at the end of the hearing, and reasonable minds could
differ on the strength of the relevant evidence. Accord-
ingly, the General Counsel was justified in waiting for
the judge's decision on this allegation.5
As with the investigatory and hearing phases, given the
requirement that we treat an EAJA case “as an inclusive
whole,” our finding that the most significant allegation in
the case, Eugene Johnson’s termination, retained sub-
stantial basis at close of hearing, coupled with the Appli-
cant’s implicit admission that the General Counsel was
substantially justified in litigating Avila’s alleged coer-
cive offer to keep Eugene employed, is dispositive. Be-
cause the General Counsel acted reasonably after the
hearing with respect to both of these allegations, an
EAJA award for the posthearing phase would also be
improper, even if we found that the two remaining alle-
gations lacked substantial basis in their own right.
D. The Remaining Allegations
Further, even apart from the requirement that we treat
the case as a whole, we find that the General Counsel
was independently justified in bringing the other two
allegations in the complaint, i.e., unlawful interrogation
and discrimination against Russell Johnson.6
With respect to the two alleged interrogations—as the
Applicant pointed out in its trial brief to the judge, al-
though not in its EAJA pleadings—there was a credibil-
ity conflict as to what Scharffenberg said to Russell
Johnson on each of the occasions at issue. There was
also a question of law as to whether what Scharffenberg
allegedly said would have been unlawfully coercive un-
der Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel Employees Union Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). The alleged interrogations
came from the Applicant’s general manager, and they
allegedly occurred in a context of other related unfair
labor practices. E.g., Westwood Health Care Center, 330
NLRB 935, 939 (2000). The issue of credibility was for

5 Moreover, the General Counsel did not prolong the case by filing
exceptions after the judge resolved the credibility disputes against him.
6 Member Schaumber does not join his colleagues’ analysis of
whether the General Counsel was independently justified in litigating
the interrogation allegations. Even if we found they lacked substantial
basis, given the requirement that we treat an EAJA case “as an exclu-
sive whole,” an EAJA award based on either or both interrogation
allegations would be inappropriate.
the judge to resolve. As to the issue of law, reasonable
minds could differ.7
With respect to the alleged denial of worktime to Rus-
sell Johnson, dispositive issues of fact and credibility
were established concerning whether he was told he
would be able to work the entire day after arriving from
his doctor’s appointment, the Respondent’s actual motive
for sending him home that day, and the Respondent’s
past practice with respect to employees arriving late for
medical reasons. As noted above, the other disputed
allegations, i.e., unlawful interrogation of Russell and
Avila’s alleged coercive offer to keep Eugene employed,
were also directly relevant here and, both allegations
involved credibility issues. Reasonable minds could ac-
cordingly also differ as to the strength of this allegation.
For all of the above reasons, we deny the application
for EAJA fees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge.

George Velastegui, Esq., for the General Counsel.
Robert G. Hulteng and Damon M. Ott, Esqs. (Littler Mendel-
sohn), of San Francisco, California, for the Respondent-
Employer.
SUPPLEMENTAL DECISION
JAY R. POLLACK, Administrative Law Judge. On April
30, 2002, the National Labor Relations Board issued a Decision
and Order in the above-captioned case, adopting my recom-
mended Order dismissing the consolidated complaint.
On May 30, 2002, Glesby Wholesale, Inc. (the Applicant)
filed with the Board in Washington, D.C. an application for
award of fees and expenses, pursuant to the Equal Access to
Justice Act, Pub. L. 96-481, 94 Stat. 2325 (EAJA), and Section
102.43 of the Board’s Rules and Regulations. On June 4, 2002,
the Board referred the matter to me for appropriate action.
Thereafter, the General Counsel filed a timely answer to the
application. The Applicant filed a timely reply.
The gravamen of the General Counsel’s argument is that, in
the underlying unfair labor practice case, the General Counsel’s
position was substantially justified.1
EAJA provides that an administrative agency award to a pre-
vailing party certain expenses incurred in connection with an
adversary adjudication, unless the agency finds that the position
7 The alleged interrogations were also directly relevant to the allega-
tions that Russell Johnson was unlawfully denied work and that Eugene
Johnson was unlawfully terminated. Again, because this relevance and
the issues of fact and law cited above established a substantial basis for
bringing the allegation to trial, we need not address the Respondent’s
contention that the Region made an inadequate prehearing investiga-
tion, or the General Counsel’s argument that the Respondent waived its
EAJA rights by failing to address the alleged interrogations in its writ-
ten response to the Region’s initial inquiry.
1 In view of the disposition of this case, the other issues raised by the
General Counsel’s answer need not be addressed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
of the Government was “substantially justified.” The United
States Supreme Court has held that “substantially justified”
means “justified to a degree that could satisfy a reasonable
person” or “having a reasonable basis in law and fact.” Pierce
v. Underwood, 487 U.S. 552, 565 (1988).
In deciding the merits of the application, a brief review of
the underlying unfair labor practice case is required.
The consolidated complaint alleged that on or about Septem-
ber 20, and again on September 28, 2001, Dennis Scharffen-
berg, Respondent’s general manager, interrogated Russell
Johnson about his and other employees’ union activities. The
complaint further alleged that in middle or late October, Robert
Avila, Respondent’s operations manager, offered to save the
job of Eugene Johnson, Russell Johnson’s son, if Russell John-
son gave up his union activities. The complaint also alleged
that Respondent unlawfully refused to allow Russell Johnson to
work for 1 day on October 1, 2001. Finally, the complaint
alleged that Respondent unlawfully terminated Eugene John-
son’s employment on November 16, 2001, because of his fa-
ther’s union activities. Respondent contended that Eugene
Johnson was a temporary employee terminated when the em-
ployee whom he replaced returned to work.
The hearing was held on January 14 and 15, 2002. On
March 15, 2002, I issued my decision recommending dismissal
of the case. No exceptions were filed to the decision and on
April 30, 2002, the Board adopted my decision and recom-
mended Order.
In dismissing the complaint, I made several credibility reso-
lutions contrary to the evidence presented by the General Coun-
sel and the Charging Party-Union.
The key issue in the case was whether employee Eugene
Johnson was a temporary employee as contended by the Appli-
cant. General Counsel presented testimony from Russell John-
son and Eugene Johnson that Eugene was not a temporary em-
ployee. Eugene Johnson testified that he was told he could
continue to drive a truck for Respondent even after another
driver returned from a disability leave. Russell Johnson testi-
fied that he was told that he could save Eugene’s job if he gave
up his union activities. Both Eugene and Russell testified that
they were never told that Eugene was hired as a temporary
employee.
However, I found on the basis of documentary evidence that
the Applicant had reported to the district attorney that Eugene
Johnson was a temporary employee long before the Applicant’s
employees had engaged in union activities. Further, Respon-
dent presented testimony from two disinterested employee wit-
nesses who supported the testimony of the Applicant’s supervi-
sor’s that Eugene Johnson was told that he was a temporary
hire until another employee returned to work. Based on these
factors I did not credit the testimony of Eugene and Russell
Johnson. I, therefore, did not credit Russell Johnson’s testi-
mony that he was told he could save Eugene’s job by abandon-
ing his union activities. Where there was conflict between the
testimony of Russell Johnson and Respondent’s witnesses, I
credited Respondent’s witnesses. Further, where there was
conflict between the testimony of Eugene Johnson and Respon-
dent’s witnesses, I credited the testimony of Respondent’s wit-
nesses.
Had I credited the witnesses differently, weighed the facts in
a different manner, or drawn different inferences from the evi-
dence, I might well have found that the Applicant violated the
Act. See Mathews-Carlsen Body Works, 327 NLRB 1167
(1999). See also Galloway School Lines, 315 NLRB 473
(1993).
The applicant’s failure to raise material defenses or to proffer
supporting evidence is relevant in determining whether the
General Counsel was substantially justified in proceeding. See
Lion Uniform, 285 NLRB 249, 253 fn. 32 (1987). It appears
that during the investigation of the unfair labor practice cases
the Respondent submitted a position letter, declarations from
two supervisors and certain documentation. However, Respon-
dent did not submit the documentation that it had submitted to
the district attorney. Nor did Respondent present any evidence
from two disinterested employee witnesses. Thus, at the time
of the issuance of the complaints, it appeared that credibility
was a critical issue in the case and that the witnesses presented
to the General Counsel by the Charging Party-Union were
credible. Had the Applicant made its witnesses available dur-
ing the investigation, as it did during the hearing, and if it had
made relevant documentary evidence available sooner, it is
quite reasonable to believe that complaint might never have
issued. The Applicant cannot now rely on its own lack of co-
operation to support its application for fees under EAJA. See
C. I. Whitten Transfer Co., 312 NLRB 28 (1993); Lion Uni-
form, 285 NLRB 249 (1987).
In this case, the General Counsel did not file exceptions after
the adverse credibility findings. I find that the General Counsel
acted reasonably in not filing exceptions. I, therefore conclude
that the General Counsel’s position was substantially justified
at all stages of the proceeding. Blaylock Electric, 319 NLRB
928 (1995), affd. 121 F.3d 1230 (9th Cir. 1997).
ORDER
Based on the above findings of fact and conclusions of law
and on the entire record herein, I issue the following recom-
mended Order.2
IT IS ORDERED that the application for fees and expenses
filed by Glesby Wholesale, Inc., be, and it hereby is dismissed.

2 All motions inconsistent with this recommended order are hereby
denied. If no exceptions are filed as provided by Section l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.