Hess Mechanical Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1996

320 N.L.R.B. 1014 (N.L.R.B. 1996)

1014
320 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates which appear in this decision were in 1994 unless oth-
erwise indicated.
2 In the absence of objection, the Applicant’s request to withhold
its net worth exhibit from public disclosure is granted, and the ex-
hibit will be sealed.
Hess Mechanical Corporation and Sheet Metal
Workers International Association, Local 100,
AFL–CIO. Case 5–CA–24162(E)
March 22, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 16, 1995, Administrative Law Judge
David S. Davidson issued the attached supplemental
decision. The Applicant filed exceptions and a support-
ing brief, the General Counsel filed an answering brief,
and the Applicant filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the application of the Applicant,
Hess Mechanical Corporation, Upper Marlboro, Mary-
land, for attorney’s fees and expenses under the Equal
Access to Justice Act is denied.
MEMBER COHEN, concurring.
I agree with my colleagues’ denial of the Employ-
er’s application under the Equal Access to Justice Act
(EAJA). The judge found that material issues of credi-
bility required resolution in the underlying unfair labor
practice proceeding, and that the General Counsel was
substantially justified in proceeding to trial.
For me, this case is a close one and nearly warrants
the granting of an award under EAJA. In the underly-
ing unfair labor practice case, the judge concluded that
employee Darr had been discharged because of low
productivity. During the precomplaint investigation of
that case, Darr gave an affidavit to the Regional Of-
fice. In that affidavit, Darr failed to mention the fact
that he had received, and acknowledged, a written
warning for poor productivity about 3 weeks prior to
his discharge. Subsequently, the Employer submitted to
the Regional Office a copy of the written warning. So
far as the record shows, the Regional Office did not
then go back to Darr and obtain a supplemental affida-
vit about the warning.
In these circumstances, it seems to me that
prosecutionial discretion might well have been exer-
cised against issuance of complaint. However, that is
not the issue. Under Section 3(d), prosecutionial dis-
cretion is correctly vested in the General Counsel. Fur-
ther, EAJA does not take that discretion away. It sim-
ply imposes a monetary price if the complaint is not
substantially justified. As noted above, the instant case
comes perilously close to that line. I am willing to say,
in this case, that the line was not crossed. The Region
did not know, to a certainty, that the warning had been
issued. However, it is somewhat troublesome that the
Region apparently did not obtain a supplemental affi-
davit from Darr in an effort to resolve the factual issue
concerning the warning.
In these times of severe budgetary restraints on the
Board, I hope that the General Counsel will be vigilant
to ensure that the cases which are brought are indeed
worthy of prosecution. Doing so will ensure the wise
use of our resources and not having to expend those
resources on EAJA awards.
Steven L. Sokolow, Esq., for the General Counsel.
Maurice Baskin, Esq., for the Respondent.
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Chief Administrative Law Judge.
The charge in this case was filed on January 18, 1994,1 and
the complaint issued on March 8. On October 26 after a trial,
Administrative Law Judge Bruce C. Nasdor issued his deci-
sion finding that the allegations of the complaint had not
been established and recommending that the complaint be
dismissed. On December 16, in the absence of exceptions,
the Board issued its Order, affirming the judge’s decision
and dismissing the complaint.
On January 4, 1995, the Respondent filed an application
of prevailing party for attorneys’ fees and costs pursuant to
the Equal Access to Justice Act (EAJA), including an objec-
tion to public disclosure of its net worth exhibit.2 Thereafter,
counsel for the General Counsel filed a motion to dismiss the
application for the reason that the position of the General
Counsel throughout the litigation of the unfair labor practice
charges was substantially justified. Respondent filed a re-
sponse thereto. On March 31, 1995, I denied the motion to
dismiss without prejudice to renewal of the General Coun-
sel’s contentions in the answer.
Thereafter, counsel for the General Counsel filed an an-
swer to the application, and Applicant filed its reply.
The answer raises two issues: whether the position of the
General Counsel was substantially justified throughout the
proceedings and whether the application is sufficient to de-
termine the Applicant’s eligibility under EAJA and the
Board’s Rules.
1015HESS MECHANICAL CORP.
3 In his affidavit, Darr referred to his foreman as John Brown, an
evident error on his part.
4 John Bragg and Rilley.
I. FINDINGS AND CONCLUSION
A. Eligibility
Section 102.147(a) of the Board’s Rules and Regulations
provides that an application shall ‘‘state the number, cat-
egory, and work location of employees of the applicant and
its affiliates and describe briefly the type and purpose of its
organization or business.’’ Counsel for the General Counsel
contends that the application fails to establish the Applicant’s
eligibility for an award and should be dismissed because it
fails to state the number, category, and work locations of its
employees and to state whether there are affiliates and sub-
sidiaries of the Employer. In its reply, the Applicant states
that Hess has no affiliates and that Hess has approximately
100 people performing plumbing, pipefitting, and sheet metal
work in the Washington, D.C. metropolitan area. The Appli-
cant asks to amend its application to state that Hess and its
nonexistent affiliates employ a total of fewer than 500 em-
ployees, in addition to having a net worth of less than $7
million. I find that the omission of the additional information
from the initial application was not fatal and grant the re-
quest to amend the application. I find further that the appli-
cation as amended is sufficient to establish the Applicant’s
eligibility to apply for an award of fees and other expenses
under Section 102.143(c) of the Board’s Rules and Regula-
tions.
B. Substantial Justification
The complaint alleged that Respondent violated Section
8(a)(1) of the Act when a supervisor told an employee that
he didn’t want him talking about the Union during working
hours, that he didn’t want him talking about the Union any-
more, that he had been warned about talking to employees
about the Union, and that he didn’t like him talking about
the Union. The complaint also alleged that Respondent dis-
charged Richard Darr because of his union and concerted ac-
tivities.
In an affidavit given on January 31 before the complaint
issued, Darr stated that he was hired to work on a construc-
tion site, that he was a member of the Sheet Metal Workers
Union, that about 2 weeks after he started on the job in late
November 1993, he began to talk to other employees about
the Union throughout the workday, and that thereafter he
tried to get some employees to sign union cards and gave
cards to several workers. He also stated that John Blotner,3
the job foreman, approached him while he was sitting in the
work area and told him that he did not want him distributing
cards or talking Union during working hours. He stated that
he believed that two other named employees4 were present
and that they may have been talking about the Union when
the foreman approached him. He stated that despite the warn-
ing he continued to talk to other employees about the Union
when he had a chance and that about a week later with no
one else present the foreman told him that he did not want
him to talk about the Union anymore. He stated that he was
not aware of any company policy concerning solicitation or
distribution rules on company premises or during working
hours. He stated that about a month later, after he had been
talking to three other employees about the Union in their
work area, the foreman came to him alone and said that he
had told him that he did not want him talking to the other
employees about the Union and that Job Superintendent
Long wanted to talk to him. He went to the office where
Long told Darr that the foreman had told him that he did not
want him talking to the other employees about the Union
during the day and that he was going to have to let him go.
Darr stated that he told Long that most of the time he talked
to other employees during breaks and not during working
time, and Long said that he didn’t care and didn’t want him
talking Union to them.
The statements in Darr’s affidavit supported the allegations
of the complaint and were sufficient to establish a prima
facie case.
After taking Darr’s statement, the field examiner contacted
the Applicant’s counsel and asked to meet with and take affi-
davits from Foreman Blotner and Superintendent Long. The
Applicant denied the request but made Blotner and Long
available for oral interview by telephone while both were to-
gether. The record does not show what they said, but it can
be inferred from the uncontested assertions in the pleadings
and their testimony at the hearing that they denied the state-
ments attributed to them by Darr and stated that Darr had
been discharged because of his job performance. The Appli-
cant also sent the field examiner a copy of a warning report
concerning Darr dated December 17, 1993, and signed by
Long. The report stated that Blotner and Long had previously
spoken to Darr on more than one occasion about his produc-
tivity, that Long had received complaints about Darr from
lead mechanics about the problem, and that substandard work
would not be tolerated. Below Long’s signature on the warn-
ing report form was a place for Darr to check whether he
agreed or disagreed with the superintendent’s statement and
for him to write an explanation if he disagreed. There was
a check mark in the box indicating that Darr agreed with the
statement and what appeared to be Darr’s signature below it.
On February 15 the field examiner sent the Applicant’s
counsel a letter asking, among other things, for documenta-
tion to show employees’ daily output, if it existed, from No-
vember 1, 1993, to date and asking whether the Applicant
had terminated any other employee during the past year for
the same or similar reasons. The letter also renewed the re-
quest to take affidavits from Long and Blotner and stated:
‘‘Please take note that your client, by denying my request for
Board affidavits, is not cooperating fully in our investigation.
The General Counsel of the Board does not consider any-
thing less than a Board affidavit, to be full and complete co-
operation.’’
Thereafter, the Applicant’s counsel submitted affidavits
from five employees which in essence denied that Darr en-
gaged in union activity on the job and stated that Darr’s
work performance had been poor. A Board agent took addi-
tional affidavits from them. One of them, De
´
Reck Tingle
stated that he had heard from another employee that Darr
was from the Union and asked Darr to tell him a little about
it. He stated further that the conversation was private and
that he never saw Darr pass out union cards. However, he
also stated that he thought that he heard him talk to a former
employee about the Union. Another, John Bragg, stated that
Darr never talked to him about the Union but that on one
occasion when working with Darr, Bragg told him that he
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The affidavits of Tingle and Bragg.
6 C.I. Whitten Transfer Co., 312 NLRB 28 (1993); Leeward Auto
Wreckers, 283 NLRB 574 (1987), reversed in part and remanded
841 F.2d 1143 (D.C. Cir. 1988).
7 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.
didn’t believe that he was with the Union, and Darr took out
his union card and showed it to him. He also stated that al-
though Darr did not talk to him about the Union, he heard
him talk to other employees about it and that Darr spoke
loudly about it. He saw him show other employees some-
thing which may have been a card.
The General Counsel contends that the position of the
General Counsel throughout the litigation was substantially
justified because it rested on the affidavit and testimony of
Richard Darr which, if credited, would have established the
violations alleged in the complaint, because the Applicant re-
fused to allow its supervisors to give sworn statements dur-
ing the investigation to support its defenses, and because the
judge’s decision dismissing the complaint was based entirely
on credibility resolutions.
In denying the motion to dismiss I noted that:
[I]t is unclear how much of the information on which
the trial judge relied relating to Darr’s performance on
the job and the warnings to him was presented to the
Regional Director before the complaint issued, in what
form it was presented, and to what extent, if any, the
evidence offered by the Respondent prompted further
investigation as to those matters which were not cov-
ered in the affidavit Darr gave on January 31, in par-
ticular, the December 17 written warning, the check
mark on that warning indicating that Darr agreed with
the company statement, and the additional evidence as
to Darr’s job performance and complaints about it. The
possibility remains that the Regional Director either
should have known that Respondent had a valid defense
to the allegation that Darr was discriminatorily dis-
charged or should have investigated further to deter-
mine whether it did. See DeBolt Transfer, 271 NLRB
299, 303 fn. 7 (1984); American Pacific Concrete Pipe
Co., 290 NLRB 134 (1988).
While the warning report supports the Applicant’s claim
that it was dissatisfied with Darr’s performance, it was issued
some 2 weeks before his termination and of itself could not
establish the cause of Darr’s discharge. On further reflection,
I am of the view that while obviously important, further in-
vestigation of it would have left credibility issues for resolu-
tion at a hearing.
Before the hearing, Darr’s was the only sworn version of
his conversations with Blotner and Long before the Regional
Director, and contrary to the Applicant’s contention, there
was some corroboration for Darr’s version of his union activ-
ity on the job.5 There was no credibility issue yet presented
by sworn statements over what Blotner and Long said to
Darr before and at the time of his termination. One may
speculate over whether the Regional Director would have re-
solved that credibility issue without a hearing even if the Ap-
plicant had made its two supervisors available to give affida-
vits during the investigation, but in the absence of sworn
statements from them, the Regional Director was not re-
quired to discredit Darr and dismiss the charge.6
At the hearing, Darr did not concede that his job perform-
ance was mentioned at the time of his termination and he
sought to minimize the warning and the reasons for it. By
the end of the hearing, no material aspect of Darr’s testi-
mony remained uncontradicted, but it remained necessary to
resolve the conflicts, particularly as to who was present and
what was said at the termination interview, in order to decide
the case. Although, as the Applicant contends, there were
substantial reasons to discredit Darr, there were also plau-
sible arguments for discrediting testimony presented by the
Applicant in support of its defense, as counsel for the Gen-
eral Counsel argued in his brief to the trial judge. As a gen-
eral rule, the General Counsel is found to be substantially
justified in issuing and pursuing a complaint where credibil-
ity conflicts exist which can only be resolved after a hearing.
National Fire Protection, 281 NLRB 624 (1986); Leeward
Auto Wreckers, supra. The Applicant has cited no case, and
I am aware of none, in which issuance and trial of a com-
plaint has been found to lack substantial justification where
credibility issues remained which had to be resolved to reach
a disposition of the case, no matter how compelling the case
for resolving them in the applicant’s favor.
Accordingly, I conclude that resolution of the issues in this
case required resolution of the credibility issues raised at the
hearing and that the Regional Director was substantially jus-
tified in proceeding to the point of the judge’s decision in
this case. I shall recommend that the application be dis-
missed.
On these findings and conclusions and on the entire
record, I issue the following recommended7
ORDER
The application for attorney’s fees and expenses is dis-
missed.