Henry Bierce Co.

National Labor Relations Board - Board Decisions

May 18, 1993

311 N.L.R.B. 63 (N.L.R.B. 1993)

63
311 NLRB No. 12
HENRY BIERCE CO.
1 Included is a motion to withhold financial information on the
grounds that disclosure of the information contained in its balance
sheet would adversely affect its ongoing operations by making con-
fidential information available to its competitors. The submission
was made pursuant to the Equal Access to Justice Act (EAJA), 5
U.S.C. Subsection 504 and Sections 102.143 et seq. of the Board’s
Rules and Regulations.
2 This conclusion was based on the fact that a number of material
items in the Union’s draft contract submitted to the Respondent for
signature were different than what was discussed and understood
during the involved negotiations and, therefore, there was no meet-
ing of the minds between the parties.
3 This represents 263.75 attorney hours $75 an hour.
4 That case dealt with fee awards in civil actions where the United
States is a party vis-a-vis adversary administrative adjudications.
Nonetheless, this definition has been applied to Board proceedings.
The Henry Bierce Company and Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local
Union No. 348 a/w International Brotherhood
of Teamsters, AFL–CIO. Cases 8–CA–21471(E)
and 8–CA–21995(E)
May 18, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1992, Administrative Law Judge
John H. West issued the attached supplemental deci-
sion. The Applicant filed exceptions and a supporting
memorandum, and the General Counsel filed cross-ex-
ceptions and a brief in answer to the Applicant’s ex-
ceptions.
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, cross-excep-
tions, memorandum, and brief and has decided to af-
firm 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 of the Applicant,
The Henry Bierce Company, Akron, Ohio, for attor-
ney’s fees and expenses under the Equal Access to
Justice Act is denied.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
JOHN H. WEST, Administrative Law Judge. By order en-
tered June 24, 1992, pursuant to Section 102.148(b) of the
Rules and Regulations of the National Labor Relations Board
(Board), Respondent’s Application for Award of Attorney
Fees and Expenses1 in the above-entitled matter was referred
to me for appropriate action.
My February 6, 1991 decision herein, which concluded
that Respondent violated the National Labor Relations Act
(Act) by conducting an unlawful poll of its employees for the
purpose of determining their desire for continued representa-
tion by the Union, by failing to provide the Union with rea-
sonable advance notice of the time and place of the poll, by
withdrawing recognition from the Union, and by dealing di-
rectly with an employee, but did not violate the Act by refus-
ing to execute a purported collective-bargaining agreement,2
was adopted by the Board by Decision and Order dated May
20. 1992.
The above-described application, filed June 19, 1992,
seeks attorney fees and expenses in the amount of $21,4223
and $1,640, respectively.
In its memorandum in support of its application, Respond-
ent points out that the aforementioned regulations provide
that:
An eligible applicant may receive an award for fees
and expenses incurred in connection with an adversary
adjudication or in connection with the significant and
discrete substantive portion of that proceeding unless
the position of the General Counsel over which the ap-
plicant has prevailed was substantially justified. The
burden of proof that an award should not be made
through an eligible applicant is on the General Counsel,
who may avoid an award by showing that the General
Counsel’s position in the proceeding was substantially
justified.
Respondent also points out that the Supreme Court in Pierce
v. Underwood, 487 U.S. 552 (1988), defined ‘‘substantially
justified’’ to mean justified to a degree that could satisfy a
reasonable person or, in other words, that has a reasonable
basis both in law and fact.4 It is contended by Respondent
that the position taken by General Counsel that the Respond-
ent and the Union reached a meeting of the minds is unrea-
sonable in fact and was not substantially justified; that Gen-
eral Counsel persisted in ignoring the simple facts of this
case as confirmed by the testimony of one of his own wit-
nesses, which testimony indicates that there was no meeting
of the minds in light of the myriad of altered terms; that the
position taken by General Counsel lacks any reasonable basis
in law; that Board precedent requires that there be a meeting
of the minds before a party will be compelled to execute a
written agreement and, therefore, it is impossible for the
General Counsel to justify his position, particularly in light
of the fact that he concedes that there were several alter-
ations contained in the agreement which was submitted for
execution by the Respondent; that the facts and law relied on
in determining this case were within the exclusive control of
the General Counsel given the absence of formal or informal
discovery; that the testimony of one of General Counsel’s
witnesses, Union Representative Robert DeStefano, alone—
completely discounting any evidence submitted by Respond-
ent—supported the dismissal of this particular charge; and
that there was no conflicting evidence with regard to the ob-
vious existence of the material alterations, nor was I required
to make any credibility determinations in deciding this aspect
of the case.
In his motion to dismiss the application, General Counsel
argues that in Pierce v. Underwood, supra, the Court con-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 It is pointed out that special circumstances includes a situation
where the Government advances in good faith a close question of
law and fact.
6 One who is seeking to avoid going to hearing would not nor-
mally exclude a determinative argument from a position statement
for tactical reasons, and if one engaged in such conduct, should his
later assertion that he should not have been forced to go to hearing
be heeded when all the while he himself held the means for avoiding
it?
cluded that ‘‘a position can be justified even though it is not
correct, and we believe it can be substantially (i.e., for the
most part) justified if a reasonable person could think it cor-
rect, that is, if it has a reasonable basis in law and fact’’;
that Congress emphasized that no adverse inferences were to
be drawn from the fact that the Government did not prevail
in the adversary adjudication; that EAJA provides that the
Government should not be held liable where ‘‘special cir-
cumstances make an award unjust’’;5 that EAJA entitles a
private party who prevails against a federal agency in whole
or in a significant and discrete substantive portion of the pro-
ceeding to recover its fees and expenses, unless the General
Counsel was substantially justified; that Webster’s New Col-
legiate Dictionary defines discrete as ‘‘1. constituting a sepa-
rate entity: individually distinct; 2 a: consisting of distinct or
unconnected elements’’; that even if one were to find that the
General Counsel was not substantially justified in alleging
that Respondent violated the Act by failing to execute an
agreed-upon contract, which the General Counsel does not
concede, an award would not be justified because the evi-
dence presented at the hearing was so intertwined and coex-
tensive with that involving the unlawful conduct found to
have been engaged in by the Respondent, that an award for
legal expenses would not be justified; that since the Re-
spondent argued that an allegation of direct dealing cannot
lie where an employer legally refused to execute a purported
agreement and lawfully polls its work force and withdraws
recognition, General Counsel was required to show that the
Union was and continued to be the representative of Re-
spondent’s employees; that Respondent in its position state-
ment to the Board, Appendix B to my decision, maintained
that it was not required to sign the contract because it law-
fully polled its employees; that in both its answers to the
original complaint and the amended complaint, Respondent
set forth the affirmative defense that the Union, in fact, did
not represent a majority of its employees in an appropriate
unit; that in view of the fact that the evidence relating to Re-
spondent’s failure to sign the contract also relates directly to
or were the reasons why Respondent engaged in conduct
found to be unlawful, these matters would have been liti-
gated and the evidence presented regardless of whether or
not the complaint also alleged a failure to execute the con-
tract; that during the investigation of the involved charge Re-
spondent took the position, as demonstrated by its position
statement to the Board, that it refused to execute the contract
because it had a good-faith doubt as to the Union’s majority
status and there was no meeting of the minds with respect
to the issues of wages; that during the investigation Respond-
ent never raised any issue with regard to any other clauses
in the contract and such issue was not raised until the union
witness had testified at the hearing herein; that when review-
ing DeStefano’s affidavit to the Board, a copy of which is
attached to General Counsel’s motion, which affidavit indi-
cates that the parties had reached agreement, coupled with
Respondent’s position statement, the only issue to be re-
solved at the hearing was a credibility issue, namely, did the
parties reach agreement on the wage issue; that the issue as
to the clauses was never advanced to the Union as a reason
for the Respondent’s failure to sign the contract nor did Re-
spondent’s counsel indicate to the Regional Office during the
investigation that these were concerns of the Respondent nor
were they raised as an affirmative defense by the Respondent
in its answer to the complaint; and that even assuming that
some fees are recoverable, certain of the fees and expenses
sought are not recoverable.
And in its reply to General Counsel’s motion to dismiss,
Respondent argues that Respondent prevailed on a significant
and discrete substantive portion of the hearing in that while
it was arguably necessary for General Counsel to litigate the
withdrawal of recognition issues in tandem with the direct
dealing claim, the refusal to execute allegation was com-
pletely independent; that counsel for the Respondent was a
bit reluctant to provide General Counsel with prehearing,
unilateral discovery via a position statement detailing each
and every conceivable defense surely does not serve to strip
the Company of its EAJA rights; that General Counsel also
has a duty to thoroughly investigate the dispositive law argu-
ably supportive of the dismissed 8(a)(5) charge; and that
General Counsel’s suggestion that the decision rested on
credibility resolutions is bogus.
With respect to the last above-described assertion of Re-
spondent in its reply to General Counsel’s motion to dismiss,
General Counsel does not suggest that the decision rested on
credibility resolutions. Rather, General Counsel argues that
when reviewing DeStefano’s affidavit, which asserts that the
parties had reached agreement, with Respondent’s position
statement, the only issue to be resolved at the hearing was
the credibility issue of whether the parties had reached agree-
ment on the wage issue. In other words, General Counsel ar-
gues that the Union contended that there was a contract ex-
cept for the fact that it was not signed by Respondent. Re-
spondent voluntarily submitted a position an 11-page position
statement. In it, Respondent did not argue that there was
never a ‘‘meeting of the minds’’ because the contract ten-
dered by the Union for Respondent’s signature contained ma-
terial clauses which were different from what was discussed
and understood during negotiations. Respondent now appears
to take the position that General Counsel should not have re-
lied on the position statement that Respondent submitted to
the Board; that General Counsel had an obligation to dis-
count the positions taken by Respondent in its position state-
ment, investigate further and consider other possible de-
fenses. Respondent seems to be asserting that that which was
not obvious enough to it to be included in its position state-
ment should, nonetheless have been obvious to the General
Counsel.6 Respondent does not deny General Counsel’s as-
sertion that Respondent did not assert that there was no
meeting of the minds because of these material alterations as
an affirmative defense in its answers to the complaint or the
amended complaint. While General Counsel has a duty to in-
vestigate, in my opinion, under the circumstances existing
here it acted reasonably. On the one hand, General Counsel
had the Union asserting that there was a contract. On the
other hand, General Counsel had the Respondent, in its posi-
65HENRY BIERCE CO.
7 In view of this determination, there is no need to treat other ar-
guments made by General Counsel in his motion.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
tion statement, asserting a number of arguments, none of
which touched on the fact that there was no meeting of the
minds because of the material alterations. It was reasonable
for the General Counsel to conclude going into the hearing
that it had come down to who was telling the truth about the
question of wages. Although this was not the basis of my
conclusions on this aspect of the case, in my opinion, Gen-
eral Counsel was substantially justified in filing the com-
plaint, proceeding to hearing and testing my conclusions on
this aspect of the involved case.7
ORDER8
IT IS ORDERED that the application be, and it is hereby,
dismissed.