Goad Co.

National Labor Relations Board - Board Decisions

Oct 1, 2001

336 N.L.R.B. 694 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
Goad Company and United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Can-
ada, AFL–CIO and Steamfitters’ Local Union
No. 420 of Philadelphia and Greater Delaware
Valley. Cases 14–CA–25782(E) and 14–CA–
25793(E)
October 1, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On June 29, 2001, Administrative Law Judge George
Carson II issued the attached supplemental decision. The
applicant filed exceptions and a supporting brief. The
General Counsel and the Charging Parties each filed an-
swering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the application is denied.

Paula B. Givens, Esq., for the General Counsel.
Mark W. Weisman, Esq., for the Respondent.
Dinah S. Leventhal Esq., for the Charging Parties.

SUPPLEMENTAL DECISION
EQUAL ACCESS TO JUSTICE ACT
STATEMENT OF THE CASE
George Carson II, Administrative Law Judge. Pursuant to the
Equal Access to Justice Act (EAJA) Pub. L. 96-481, 94 Stat.
2325, 5 U.S.C. § 504, and Section 102.143 of the Board’s Rules
and Regulations, the Respondent timely filed an application for
fees and other expenses in this matter on April 24, 2001. The
application was accompanied by a motion to withhold confi-
dential financial information from public disclosure.1 On April
24, 2001, the Board referred the application to me for appropri-
ate action. As the prevailing party in Goad Co., 333 NLRB 677
(2001), the Respondent contends in its application that the
General Counsel’s position was not substantially justified.

1 The confidential financial information is sealed and attached to the
Respondent’s application as Exh. A. An itemization of fees and ex-
penses is attached as Exh. B. The charges reflected therein exceed the
$75 per hour prescribed by Sec. 102.145(b) of the Board’s Rules and
Regulations. The Respondent’s application and attachments reflect that
the Respondent is also seeking fees and expenses in connection with a
10(j) proceeding that was filed in this matter. I had no involvement
with that proceeding which was before the United States District Court,
not the Board.
On May 25, 2001, counsel for the General Counsel filed an
answer with an accompanying memorandum denying the con-
tention that the position of the General Counsel was not sub-
stantially justified, and counsel for the Charging Parties filed
comments in opposition to the application of the Respondent.
On June 19, 2001, the Respondent filed a reply to the answer of
the General Counsel with an accompanying memorandum.
The EAJA provides that attorney fees may be awarded to
eligible parties who prevail in cases tried before administrative
agencies, unless the Government establishes that its litigation
position was “substantially justified.” The Supreme Court, in
Pierce v. Underwood, 487 U.S. 552 (1988), stated that “sub-
stantially justified” means “justified to a degree that could sat-
isfy a reasonable person” or as having a “reasonable basis both
in fact and law.” The Board, in Indianapolis Mack Sales, 292
NLRB 136 fn. 1 (1988), noted that the administrative law
judge’s discussion of the substantial justification issue in that
case fully comported with the Court’s definition. In Indianapo-
lis Mack Sales, the administrative law judge cited a portion of
the legislative history of the EAJA noting the following:

The test of whether or not a Government action is substan-
tially justified is essentially one of reasonableness. Where
the Government can show [that] its case had a reasonable
basis [both] in law and fact, no award will be made.
. . . .
The standard, however, should not be read to raise a
presumption that the Government position was not sub-
stantially justified simply because it lost the case. Nor, in
fact, does the standard require the Government to establish
that its decision to litigate was based on a substantial
probability of prevailing.

H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10 (1980). Id. at 136.
I. BACKGROUND
Before addressing whether the General Counsel acted with
substantial justification in this case, a brief summary of the
underlying proceeding is appropriate. On June 24, 1998, the
United Association informed Respondent’s President Curtis
Goad that, effective July 1, 1998, jurisdiction of Respondent’s
facilities was being transferred from Local 420 to Local 562.
Goad objected and refused to bargain with Local 562. This
refusal to bargain was the subject of unfair labor practice
charges filled by the United Association and Local 562. Those
charges were dismissed since there was not a “continuity of
representation.” Thereafter, on August 4, 1999, the business
manager of Local 420, Joseph Rafferty, wrote Goad stating that
Local 420 was exercising its right to reopen the collective-
bargaining agreement between the parties that was to expire on
October 20, 1999, and that a representative of Local 420 would
“meet and confer” with him regarding the new contract. On
October 8, Rafferty, in a letter, identified Daniel P. Murphy as
“Local 420’s agent for the purposes of negotiating and servic-
ing a new contract with the Goad Company.” On October 12,
1999, Goad wrote Rafferty stating that he had not been con-
tacted by a representative of “your union,” but that he had
“been contacted by a representative of Pipefitters’ Local 562 in
St. Louis. As you are aware, the National Labor Relations
336 NLRB No. 49
GOAD CO. 695
Board ruled that there is no obligation to bargain with Local
562.” In a postscript, Goad offered to meet with “anyone other
than Local 562,” that for over a year and a half “we have in-
formed you that we do not want to deal with Local 562.” The
Respondent persisted in its refusal to deal with Murphy or Lo-
cal 562, and the United Association and Local 420 filed the
charges that were the subject of Goad Co., supra.
II. DISCUSSION
The complaint alleged that the Respondent violated the Act
by failing and refusing to bargain with Local Union No. 420
unless Daniel P. Murphy ceased to act as the Union’s agent.
Evidence presented at the hearing included exchanges of corre-
spondence, testimony relating to various telephone conversa-
tions, and an internal union agreement providing for designa-
tion of “one or more Business Agents for Local 562 . . . to serve
as Local 420’s agent(s).” The General Counsel and the Charg-
ing Party cited longstanding Board precedent regarding the
right of employers and unions to appoint agents to negotiate
and my decision sets out such precedent noting that
“[e]mployers and unions have the right ‘to choose whomever
they wish to represent them in formal labor negotiations.’ Gen-
eral Electric Co. v. NLRB, 412 F.2d 512, 516 (2d Cir. 1969).”
Goad Co., supra. The Charging Party, citing Fitzsimons Mfg.
Co., 251 NLRB 375, 379 (1980), notes that a party must deal
with the chosen representatives who appear at the bargaining
table except in the rare circumstance when the “the presence of
a particular representative . . . makes collective bargaining im-
possible or futile.” See also R.E.C. Corp., 307 NLRB 330, 333
(1992). It was undisputed that Goad refused to bargain with
Murphy. Goad’s letter of October 12, 1999, does not even dig-
nify Murphy by referring to him by his name but refers to him
as “a representative of Pipefitters’ Local 562.”
Notwithstanding the foregoing precedent, on the basis of the
particular facts and circumstances of this case, I concluded, and
the Board agreed, that “Local 420 did not simply enlist the aid
of an agent, but transferred its representational responsibilities
to Local 562.” Goad Co., supra at fn. 1. The Respondent notes
that counsel for the General Counsel, in the memorandum ac-
companying the answer to the application, continues to argue
that the internal agreement operated to appoint Local 562 as an
agent and that I rejected this argument in my decision. My re-
jection of the General Counsel’s argument does not establish
that the General Counsel’s position was not substantially justi-
fied. The General Counsel argues that the position of the gov-
ernment was substantially justified, and I agree. The evidence
presented by the General Counsel established a prima facie case
both on the facts and the law. The Respondent had not repudi-
ated its bargaining obligation and had specifically stated that it
was willing to meet with “anyone other than Local 562.”
The Respondent, in its application, argues that the internal
agreement entered into between Local 420 and Local 562, was
a “sham intended to convey representation rights from Local
420 to . . . Local 562,” and, in the memorandum accompanying
its reply, the Respondent asserts that “there was no justification
to proceed to hearing once the Agreement became known to the
Regional Office.” In order to find that the General Counsel
proceeded without substantial justification, I would have to find
that the General Counsel possessed “evidence that clearly
would defeat an allegation that the charged party has violated
the law.” (Emphasis added.) Lion Uniform, 285 NLRB 249,
254 at fn. 33 (1987). Contrary to the Respondent’s argument,
the internal agreement standing alone was not dispositive of the
case. My decision specifically notes that the internal agreement
did “not contain words specifically substituting Local 562 for
Local 420,” and I, therefore, addressed the practical effect of
the agreement. Goad Co., supra. The first sentence in the first
numbered provision of the internal agreement states that “one
or more Business Agents for Local 562 will be designated to
serve as Local 420’s agent(s) for the purpose of negotiating and
servicing a new contract with the Goad Company which will be
entered into in the name of Local 420.” Notwithstanding this
statement, I found that “the practical effect of the agreement
was to substitute Local 562 as the collective bargaining repre-
sentative in place of local 420.” That finding was not based
upon a finding relating to the document standing alone, but
upon consideration of all of the record evidence.
Although this case did not turn upon credibility in the classic
sense, counsel for the General Counsel correctly points out that
I failed to credit certain portions of Rafferty’s testimony, in-
cluding his denial that he contemplated that he was “giving
away to Local 562 Local 420’s rights, duties and responsibili-
ties as the collective bargaining representative of Goad’s em-
ployees” and his assertion that he would make the decisions
regarding taking grievances to arbitration. I did not cite the
foregoing testimony in the decision because I gave no credence
to it. Rafferty’s denial to counsel’s carefully phrased question
regarding giving away Local 420’s rights was conclusory. No
document reflected any agreement relating to arbitration, and I
placed no reliance upon Rafferty’s assertion that it was “under-
stood” that he would make such decisions. The Respondent
argues that the foregoing was “self-serving irrelevant testi-
mony” upon which I did not rely. The Respondent is correct
that I did not rely upon that testimony; however, my disregard
of this conclusory and uncorroborated testimony did constitute
a credibility resolution. See Nyeholt Steel, Inc., 323 NLRB 436,
437 (1997). If I had credited, and placed great weight upon,
Rafferty’s testimony that Local 420 would, prospectively, be
involved in arbitration decisions and that he had not contem-
plated that he was giving away Local 420’s “rights, duties, and
responsibilities,” and if I had given controlling weight to the
first sentence in the first numbered provision of the internal
agreement providing for the appointment of business agents of
Local 592 “to serve as Local 420’s agent(s),” I would, consis-
tent with the argument of the General Counsel, have found that
“no representational ‘responsibilities’ had been transferred by
Local 420” and that Local 420 had simply appointed an agent.
Instead, I placed far more weight upon Rafferty’s admission
that, in a telephone conversation with Goad on October 8, he
told Goad, “Murphy is the guy we’re going to . . . I’m not par-
taking in it.” Goad Co., supra at 679.
III. CONCLUDING FINDINGS
My determination that the Respondent did not violate the Act
was reached after consideration and analysis of the particular
facts and circumstances of this case as presented in the entire
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
record. The General Counsel was fully justified in proceeding
against this Respondent that couched its refusal to bargain in
terms of objections to Murphy as a representative of Local 562
but had expressed willingness to negotiate with “anyone other
than Local 562.” Although I found no violation of the Act, my
decision was predicated upon placing more weight upon par-
ticular portions of testimony, ascribing more significance to
some facts than to others, and drawing inferences from that
testimony and those facts. The Board has held that “[s]uch
weighing of facts and drawing of inferences is not the General
Counsel’s province in the investigative stage of a proceeding.
The weighing of various explanations . . . and the drawing of
inferences from the testimony are, in the first instance, the
exclusive province of the judge; they require submission of the
case to the fact finding process of litigation.” Lathers Local 46
(Building Contractors), 289 NLRB 505, 508 (1988). I denied
the Respondent’s motion to dismiss at the conclusion of the
General Counsel’s case stating that the General Counsel had
presented a prima facie case, and I did not issue a bench deci-
sion. It was only after the record had been fully developed, the
entire record had been analyzed, legal research had been ac-
complished, and the arguments of all parties fully considered
that I concluded that the evidence established that Local 420
had transferred its representational responsibilities.
I find and conclude that the General Counsel’s prosecution
of this case had a reasonable basis on the facts and the law and
that it was substantially justified. In view of this, I shall rec-
ommend that the Respondent’s application for an award of fees
and expenses be denied.2
ORDER
The Respondent’s application for award of fees and expenses
is denied.3

2 In view of the foregoing, it is not necessary to address any other is-
sues, including the amount of any award, the eligibility of the Respon-
dent for an award, and the Respondent’s motion to withhold confiden-
tial financial information. The financial data submitted by the Respon-
dent shall remain under seal pending the outcome of this matter.
3 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.