Hamel Forest Products

National Labor Relations Board - Board Decisions

Jun 6, 1984

270 N.L.R.B. 1078 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamel Forest Products, Inc. and International
Woodworkers of America, AFL-CIO-CLC.
Cases 30-CA-6708(E), 30-CA-6778-2(E), and
30-CA-6905(E)
6 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 14 September 1983 Administrative Law
Judge Frank H. Itkin issued the attached supple-
mental decision. The Applicant, Hamel Forest
Products, Inc., filed exceptions, and the General
Counsel filed a brief in opposition to the exceptions
and 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 record and the at-
tached supplemental decision in light of the excep-
tions and brief and has decided to affirm the
judge's rulings, findings, and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the application is denied.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
FRANK H. ITKIN, Administrative Law Judge. On June
16, 1983, the administrative law judge's decision issued in
the above-consolidated unfair labor practice proceeding.
On July 20, 1983, the Board, noting that no statement of
exceptions having been filed and the time for filing such
exceptions having expired, entered its Order adopting the
findings and conclusions of the administrative law judge,
and therefore directed Respondent Employer to comply
with the Order of the administrative law judge. In the
meantime, on July 15, 1983, Respondent Employer filed
with the Board an application for award of attorneys fees
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. On July 22, 1983, the Board re-
ferred this application to the administrative law judge for
appropriate action. Thereafter, on August 4, 1983, the
General Counsel filed a motion to dismiss Respondent's
application. And on August 18, 1983, Respondent filed a
response to motion to dismiss. For the reasons stated
below, Respondent's application is denied.
The General Counsel alleged and argued in the initial
unfair labor practice proceeding that Respondent Em-
ployer had violated Section 8(a)(l), (3), and (5) of the
National Labor Relations Act by engaging in surveil-
lance of a union meeting about September 1, 1981; by
discriminatorily denying an employee's request for a day
270 NLRB No. 159
off because of his union activities about September 3 or
4, 1981; by unilaterally implementing and thereafter en-
forcing and maintaining certain work rules during mid-
September 1981; by promulgating and thereafter main-
taining and enforcing an overly broad no-solicitation rule
during mid-September 1981; by refusing to supply the
Union with information regarding its survey of other em-
ployers and the number of paid holidays granted to their
employees about October 6, 1981; by discriminatorily
suspending employee Edmund Suchomski for 3 days
about October 20, 1981; by threatening to retaliate
against employee Suchomski and the Union's representa-
tive about December 9, 1981; and by discriminatorily dis-
charging employee Suchomski about January 4, 1982.
Following some 4 days of hearing, the administrative
law judge, and the Board, found that Respondent Em-
ployer had violated Section 8(a)(l) of the Act by engag-
ing in surveillance and creating the impression of engag-
ing in surveillance of employee union activities and by
threatening to retaliate against an employee and union
representative; Section 8(a)(l) and (3) of the Act by dis-
criminatorily denying an employee a day off because of
his suspected union activities; and Section 8(a)(5) and (1)
of the Act by refusing to supply the Union, the certified
bargaining agent of an appropriate unit of its employees,
with information regarding a survey of other employers
and the number of paid holidays granted to their em-
ployees. The remaining allegations and contentions were
dismissed.
Respondent Employer, in its application for award for
fees, argues that it "has prevailed in respect to the adju-
dication of those portions of the case . . . [pertaining to
the] suspension of Suchomski and termination of Su-
chomski" the "overwhelming majority of the proceeding
was directed to those portions of the case" the "positions
of the General Counsel in the foregoing proceeding . . .
were not substantially justified" the "evidence available
to the General Counsel prior to the issuance of the com-
plaint clearly indicated that Edmund Suchomski's con-
duct justified his termination irrespective of any anti-
Union animus"; and the General Counsel "proceeded ap-
parently in reliance on witness Bach whose testimony
the Administrative Law Judge" found to be "totally un-
reliable, untrustworthy and incredible."'
As recited in the initial decision:
During the General Counsel's investigation of this proceeding,
counsel for Respondent mailed to counsel for General Counsel a
copy of the tachometer chart in use during Suchomski's shift on Jan-
uary 4. See G.C. Exhs. 7(a), 7(b) and 7(c). Also see R. Exh. 7.
Thereafter, David Bach, formerly manager or assistant manager for
Respondent, gave counsel for General Counsel an affidavit, asserting
therein, inter alia, that on January 5, 1982, Flora had instructed Bach
to "go through old kiln temperature charts" and "to find one . . .
that . . . would coincide with the time Ed was watching TV . . .
this would help substantiate the firing .... " Bach further stated in
his affidavit:
I did what Flora told me. I found a. . . chart; changed the
date; and put Ed's name on it .... I attach hereto and make a
part hereof the chart I found ... Exh. A ....
See R. Exh. 6 and Exh. A annexed. Cf. G.C. Exhs. 7(a), 7(b) and
7(c) and R. Exh. 7.
Continued
1078
HAMEL FOREST PRODUCTS
The administrative law judge, and the Board, ex-
plained the pertinent findings in the initial unfair labor
practice case, in part as follows:
The credited evidence of record, as found supra,
makes it clear that Company supervisor Bach, the
Employer's plant manager and later assistant plant
manager, violated Section 8(a)(1) when he pointedly
asked employee Gralla in the office "if it would be
allright if [Bach] attended the Union meeting that
night." Bach was later observed in the area where
the meeting was being held. Bach "slowly ... took
a step and stopped, took a step and stopped [and]
took a step and stopped . .. [and] looked at us by
the picnic table" while the meeting was in progress.
Indeed, as counsel for the Employer acknowledged,
Bach told one of the employees, "who asked why
they were there . . ." that he, Bach, was "spying
on the Union." Although Bach was assertedly
"joking," I find on this record that such conduct
and statements clearly tended to impinge on em-
ployee Section 7 rights. Bach, in short, was creating
the impression of spying on a Union meeting and, in
fact, was spying on the Union meeting, in violation
of Section 8(a)(1) of the Act.
Some three days after the Union meeting which
Bach openly observed, on September 4, Bach
denied employee Gralla's request for the following
Saturday, September 5, off. Gralla wanted the day
off to attend a wedding. He appealed Bach's denial
to Company president Hamel. Hamel, in also refus-
ing to grant [the] request, made clear to the em-
ployee: ". . . you're the instigator, the leader of the
Union . . . you should have thought about that
before you voted for the Union ... "- Hamel
"thought he knew who [Gralla] voted for." These
statements and conduct by the Company president
tend to interfere with employees Section 7 activities
and, in addition, establish here that Gralla was
being discriminated against with respect to his terms
and conditions of employment because of his sus-
pected Union activities, in violation of Section
8(a)(l) and (3) of the Act.
The credited evidence of record also shows here
that when the Union attempted to expand its orga-
nizational effort to the Employer's Vesper facility
on December 9, Company president Hamel con-
fronted Union representative Burnell at the drive-
Bach was called as a witness for the General Counsel at this pro-
ceeding. On direct examination, he again asserted that he had been
instructed by Flora to find an old "chart" with "dips." Bach identi-
fied G.C. Exh. 7(b) as the "graph that I changed .... " Bach insist-
ed that G.C. Exh. 7(b) was the bogus or fabricated chart. Later,
however, during extensive cross-examination, Bach acknowledged
that "right now I'm not really sure" whether or not G C. Exh. 7(b)
is or is not the "true chart" for January 4. Elsewhere, he acknowl-
edged that the so-called fabricated chart was in fact the "actual
graph." Further, Bach acknowledged giving false testimony before
the State unemployment compensation agency with respect to this
matter. And, Bach claimed that he had been fired improperly by
Flora during May 1982. Under the circumstances. I find Bach to be
an unreliable witness and do not rely upon any of his testimony.
way, where Burnell was attempting to handbill em-
ployees, and there made repeated vulgar and ob-
scene statements to Burnell. Hamel threatened Bur-
nell: "... I'll get you you fucking communist and
I'll get that fucking Suchomski if it's the last thing I
do." Hamel subsequently returned to the inside of
the Vesper plant and, then, on the intercom or
loudspeaker, continued to taunt and harass the
Union organizers. I find here that such statements
and conduct by Hamel were calculated to deter fur-
ther Union activities on the part of his Vesper em-
ployees; there were Vesper employees in the area
who could witness and observe this continuing
scenerio; and such statements and conduct tend to
interfere with employee Section 7 rights, in viola-
tion of Section 8(a)(1) of the Act.
There remains the question, whether or not Re-
spondent Employer, by suspending employee Su-
chomski on October 20 and by subsequently firing
him on January 4, violated Section 8(aXl) and (3)
of the Act. I find here that the Employer strongly
opposed the Union's representation of its employ-
ees. Company president Hamel's statements to em-
ployee Gralla and his later statements to Union rep-
resentative Burnell amply demonstrate this animus.
Moreover, this record shows that employee Su-
chomski was an open and active supporter and ad-
vocate of the Union among the nine or ten unit em-
ployees involved from the outset of the Union's
campaign. Suchomski serves the Union's observer at
the August 12 election. Management was clearly
aware of Suchomski's Union sympathies and efforts.
Consequently, the Employer's actions on October
20 and later on January 4, in suspending and firing
Suchomski, must be assessed in the context of this
strong anti-Union animus and president Hamel's
clear threat: ". . I'll get that fucking Suchomski if
it's the last thing I do." So viewed, I find that the
Employer's three-day suspension of Suchomski on
October 20 and his firing on January 4 were moti-
vated by an unlawful purpose, that is, Suchomski's
known Union activities. However, as discussed
below, I also find here that the Employer acted for
a lawful and legitimate reason in taking this discipli-
nary action, that is, Suchomski's inadequate and im-
proper performance of his assigned work duties. In
short, I am persuaded here that the Employer
would have suspended Suchomski on October 20
and would have fired him on January 4 for legiti-
mate or lawful reasons even in the absence of his
protected Union activities.
Discussion
The Board, in Enerhaul, Inc., 263 NLRB 890, 890
(1983), reversed 710 F.2d 748 (11th Cir. 1983), explained
that:
EAJA provides that an administrative agency
shall award to a prevailing party certain expenses
incurred in connection with an adversary adjudica-
tion, unless the agency finds that the position of the
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
government was "substantially justified." The legis-
lative history of EAJA characterized "substantially
justified" as a test of reasonableness, and further
clarified that, "[w]here the Government can show
that its case had a reasonable basis both in law and
fact, no award will be made."
Based on our review of this case, we conclude
that the position of the General Counsel was rea-
sonable in law and fact. In particular, we note the
Administrative Law Judge's finding in his original
Decision that the General Counsel established a
prima facie violation of the Act-a finding to which
no party excepted. We therefore agree with the Ad-
ministrative Law Judge's finding that the General
Counsel's position was substantially justified within
the meaning of EAJA. Consequently, the Appli-
cant's application shall be dismissed.
The Board further noted that (at fn. 3):
We do not, however, suggest that a finding that the
General Counsel established a prima facie case is a
prerequisite to finding the General Counsel's posi-
tion reasonable in law and fact. We shall continue
to analyze EAJA applications on a case-by-case
basis. 2
Later, in Jim's Big M, 266 NLRB 665 fn. 1 (1983), the
Board explained that:
[T]he presence or absence of a prima facie case is
not determinative of whether or not an applicant is
entitled to an EAJA award. Rather, the legislative
history of EAJA states that the standard "is essen-
tially one of reasonableness" and is not to be equat-
ed with "a substantial probability of prevailing." S.
Rep. F96-253 [96th Cong., Ist sess.] at 6-7 (1979);
H.R. Rep. 96-1418 [96th Cong., 2d sess.] at 10-11
2 The court, in reversing the Board in Enerhaul, noted, inter alia, that
"Because the NLRB's position in this case was unreasonable under the
law of this Circuit, we hold that the ALJ and the Board abused their
discretion by dismissing" the application. The instant case is plainly dis-
tinguishable in this respect.
(1980). Further, we have held that all EAJA appli-
cations shall be analyzed on a case-by-case basis.
Enerhaul, Inc., 263 NLRB 890 fn. 3 (1982). As dis-
cussed by the Administrative Law Judge, the Board
found that the evidence in the underlying case
failed to establish a prima facie case based, in large
part, on the absence of credited evidence of union
animus by the Applicants. The Administrative Law
Judge further pointed out, however, that if credited
Anthony Pento's testimony relating to statements
made by representatives of Applicant Big M that
the new store would not be operated on a union
basis would have been sufficient evidence of union
animus to support a prima facie case. In these cir-
ucmstances, we find that the position taken by the
General Counsel was reasonable.
Also see Spencer v. NLRB, 712 F.2d 539 (D.C. Cir.
1983); and Wyandotte Savings Bank v. NLRB, 110 LRRM
2929 (6th Cir. 1982).
Under all the circumstances, I find and conclude here
that the General Counsel's position with respect to the
disciplinary actions taken against employee Suchomski
was "substantially justified." The General Counsel has
shown that "its case had a reasonable basis both in law
and in fact . . ." (Ibid.) Indeed, the administrative law
judge, and the Board, found here, in effect, that the Gen-
eral Counsel had established a prima facie violation of
the Act with respect to employee Suchomski. In sum,
the General Counsel's position in this respect was sub-
stantially justified within the meaning of EAJA, and
therefore this application is denied.
ORDER
It is ordered that the application of Hamel Forest
Products, Inc., for an award under the Equal Access to
Justice Act is denied.3
I Applicant's motion that its net worth data be kept confidential under
Sec. 102.147(g)(1) of the Board's Rules and Regulations is granted. This
data, annexed to the application, should be withheld from disclosure.
1080