Laborers International Union Of North America, Local 270

National Labor Relations Board - Board Decisions

Oct 25, 1988

291 N.L.R.B. 432 (N.L.R.B. 1988)

432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America,
Local 270 and Office and Professional Employ
ees Union Local 29, Office and Professional
Employees International Union Case 32-CA-
8185(E)
October 25 1988
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 26 1988 Administrative Law Judge
Jay R Pollack issued the attached supplemental de
cision The General Counsel filed exceptions and a
supporting brief and the Applicant filed an an
swering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the supplemental deci
Sion and the record in light of the exceptions and
briefs and has decided to affirm the judge s rulings
findings and conclusions only to the extent consist
ent with this Supplemental Decision and Order
In the underlying decision the judge found that
Frances Incardona was a statutory supervisor and
therefore recommended dismissal of the complaint
allegations that alleged that the Respondent Appli
cant violated Section 8(a)(1) and (3) of the Act by
interrogating Incardona isolating her from contact
with employees changing her work hours and dis
charging her for union activities The General
Counsel filed no exceptions to the judge s dismissal
of the complaint allegations related to Incardona i
In his supplemental decision the judge conclud
ed that the evidence in the General Counsel s pos
session at the time the complaint issued could not
establish a prima facie case that Incardona s dis
charge violated the Act because Incardona s pre
complaint affidavit established her supervisory
status Accordingly the judge found that the Gen
eral Counsel was not substantially justified in issu
ing and proceeding on the complaint allegations
concerning Incardona and awarded Equal Access
to Justice Act (EAJA)2 fees and expenses 3
i The General Counsel filed exceptions to the judge s dismissal of the
complaint allegations related to employee Jill Smith We adopted the
Judges dismissal Laborers Local 270 285 NLRB 1026 (1987)
2 5 U S C § 504 (1982 ) as amended by Pub L 99-80 99 Stat 183
(1985)
8 The judge found that because Laborers International Union of North
America Local 270 (Local 270) filed separate annual reports for purposes
of the Labor Management Reporting and Disclosure Act of 1959 its net
worth should not be aggregated with its International for EAJA eligibil
ity purposes citing H R Conf Rep No 99-120 (1985) which criticized
the Board s decision in Carpenters Local 1361 (Atchinson Foundation) 272
NLRB 1118 (1984) The General Counsel excepts Because we reverse
the judge and find the General Counsel was substantially justified in issu
In her exceptions the General Counsel contends
that she was substantially justified in issuing the
complaint The General Counsel argues that the
judge erred in equating what he believed to be
easily resolved credibility issues with the absence
of such issues and failing to draw reasonable infer
ences from the General Counsels evidence We
agree
During the General Counsels investigation of
the charge Incardona gave an affidavit to a Board
agent stating I did not have the authority to hire
and fire employees however I could make effec
tive recommendations that someone be hired or
fired The affidavit set out two instances where
Incardona interviewed prospective employees and
recommended to Valdez that they be hired They
were hired after they were interviewed by Valdez
The judge relying on these statements reasoned
that no prima facie case of unlawful discharge
could be established because at the time the Gener
al Counsel issued the complaint she knew that In
cardona was a supervisor
We find the judge erred by failing to look
beyond what is essentially a legal conclusion in the
affidavit The affidavit as a whole and the file
memoranda4 outlining subsequent telephone con
versations with Incardona established a factually
close question concerning Incardonas supervisory
status
First Incardonas affidavit established that she
was a close friend of Leo Valdez the Respondent s
business manager and thus the General Counsel
could have reasoned that her opinion of prospec
tive employees was sought based on her close rela
tionship with Valdez rather than because of her
status as a supervisor Second Incardona s affidavit
established that she was paid considerably less than
other clerical employees and received the same
benefits Third in her affidavit Incardona denied
that she assigned work or overtime to clerical em
ployees 5 Fourth in a telephone conversation with
mg and proceeding on the complaint we find it unnecessary to address
the judge s discussion of whether the Local s net worth can be aggregat
ed with the net worth of its International for purposes of qualifying for
an award of fees
4 H R Conf Rep No 99-120 at 13 makes clear that because the sub
stantial justification determination is to be made on the basis of the ad
ministrative record made during the underlying case EAJA proceedings
will not involve additional evidentiary proceedings or additional discov
ery of agency files solely for EAJA purposes Nonetheless the General
Counsel may decide to disclose agency files in order to meet her burden
of proving that the actions in the underlying case were substantially justi
fled
s In the underlying case the judge found it unnecessary to resolve the
conflicting evidence regarding Incardona s authonty to assign work or
overtime because he found the credible evidence established that Incar
dona effectively recommended the hire and discharge of office employ
ees The judge did not however rely solely on the affidavit in making
this determination He also relied on testimony of the Respondents wit
nesses that Incardona recommended the hiring of five office clericals and
the firing of two employees
291 NLRB No 72
LABORERS LOCAL 270 433
a Board agent Incardona denied that she was a su
pervisor and related an incident in which she was
told she was not the boss and was reprimanded for
trying to delegate her work
Under the Supreme Court s recent decision in
Pierce v Underwood 6 the General Counsel is sub
stantially justified if its position was reasonable in
both law and fact In view of the above facts 7 we
believe that it was reasonable for the General
Counsel to infer that Incardona was an employee
and not a supervisor We therefore conclude that
the General Counsel was substantially justified in
issuing the complaint continuing to litigate the
case to the close of hearing and filing a posttrial
brief with the judge Accordingly we shall deny
the Applicants application for an EAJA award
substantially justified and that the application seeks an
award in excess of reasonably compensable expenses
On consideration of the entire record in this supple
mental proceeding including the record in the underly
ing unfair labor practice case I make the following find
ings and conclusions
I THE APPLICANT S ELIGIBILITY
Section 203(a)(1) of EAJA (5 U S C § 504(a)(1)) pro
vides for an award of attorneys fees to a party pre
vailing in an adversary adjudication before a Federal
agency unless it is shown that the Governments position
was substantially justified of that special circum
stances make an award of attorney fees unjust In defin
ing a party entitled to recover expenses incurred in an
administrative proceeding 5 US C § 605(b)(1)(B)
which is the applicable subsection of EAJA reads in rel
evant part
ORDER
It is ordered that the application of the Appli
cant Laborers International Union of North Amer
ica Local 270 San Jose California for an award
under the Equal Access to Justice Act is denied
B 56 USLW 4806 (June 27 1988) The Supreme Court held that the
phrase substantially justified means justified to a degree that could sates
fy a reasonable person or reasonable basis both in law and fact The
Court found that a sentence in the 1985 House Committee Report H R
Conf Rep No 99-120 (1985) which defined substantial justification as
more than mere reasonableness was not an authoritative interpretation
of what the 1980 statute meant or of what the 1985 Congress intended
We also observe that the burden is on the party alleging supervisory
status to prove that it in fact exists Commercial Movers 240
NLRI3 288 290 ( 1979) Here the Respondent did not allege Incardona s
supervisory status as a defense until the hearing
Barbara D Davison Esq for the General Counsel
Paul D Supton Esq (Van Bourg Weinberg Roger & Ro
senfeld) of San Francisco California for the Appli
cant
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R POLLACK Administrative Law Judge On Sep
tember 27 1987 the Board issued its decision in the
above captioned case in which it adopted my findings
and conclusions and dismissed the complaint in its entire
ty (285 NLRB 1026) On October 22 1987 Laborers
International Union of North America Local 270 (the
Applicant or the Union) filed the instant application for
fees and expenses pursuant to the Equal Access to Jus
tice Act Pub L 96-481 94 Stat 2325 (EAJA) and Sec
tion 102 143 of the Board s Rules and Regulations On
October 23 the Board referred this matter to me for ap
propriate action The Applicant seeks legal fees and ex
penes in the amount of $9232 as of October 1987 The
General Counsel contends in substance that the Appli
cant is not eligible under EAJA because its assets must
be aggregated with the assets of the Laborers Interns
tional Union of North America that the complaint was
Party means a party as defined in 5 U S C 551(3)
who is (ii) any owner of an unincorporated
business or any partnership corporation associa
tion unit of local government or organization the
net worth of which did not exceed $7 000 000 at the
time the adversary adjudication was initiated and
which had not more than 500 employees at the time
the adversary adjudication was initiated except that
an organization described in section 501(c)(3) of the
Internal Revenue Code of 1954 (26 U S C
501(c)(3)) exempt from taxation under section 501(a)
of such Code or a cooperative association as de
fined in section 15(a) of the Agricultural Marketing
Act (12 U S C 11410)(a)) may be a party regard
less of the net worth of such organization or coop
erative association
The Applicants records indicate that at the time of the
issuance of the instant complaint August 29 1987 it em
ployed less than 25 employees and had a net worth of
less than $7 million The General Counsel does not dis
pute these facts However the General Counsel contends
that the assets of the Laborers International Union the
Applicants parent organization should be aggregated
with those of the Applicant and thereby cause the apple
cant to fail to qualify under EAJA
In Pacific Coast Metal Trades Council (Foss Launch)
271 NLRB 1165 (1981) relied on by the General Court
sel the Board held that aggregation of the net worth of
an applicant and another entity is mandated by the
Board s Rules whenever an entity is either directly or in
directly controlled by or in control of the applicant
See also Carpenters Local 1361 (Atchinson Foundation)
272 NLRB 1118 (1984) remanding case to the adminis
trative law judge for determination of whether the net
worth of a local union should be aggregated with the net
worth of its international union In making the 1985
EAJA amendments the House Committee on the Judici
ary specifically criticized the Carpenters 1361 case and
stated It is the Committees intent that if the local
union is considered to be a separate labor organization
for the purposes of the Labor Management Reporting
and Disclosure Act of 1959 it should be considered to
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be a separate organization for purposes of EAJA as well
and the local s entitlement of fees should be determined
without regard to the assets and/or employees of the
International with which it is affiliated H R Report
No 120 99th Cong 1st Sess 17 (1985) See also 99
Cong Rec H R 2378 (June 24 1985) (remarks of Rep
Kastenmeier)
The Applicant files a separate annual report with the
Department of Labor under the Labor Management Re
porting and Disclosure Act (LMRDA) of 1959 and is a
separate labor organization for purposes of LMRDA
Accordingly the clear legislative intent of EAJA is that
the Applicant be treated as a separate entity from its
parent organization I therefore find that the Applicant
is an eligible party under EAJA
II PREVAILING PARTY
Under Section 102 143(b) of the Board s Rules a pre
vailing party is a respondent in an unfair labor practice
case who prevails in that proceeding or in a significant
and discrete substantive portion of that proceeding and
who otherwise meets the eligibility requirements for an
award under EAJA
The complaint alleged that the Applicant violated Sec
tion 8(a)(1) of the Act by interrogating Frances Incar
dona about her union activities and those of other em
ployees ' Further the General Counsel alleged that the
Applicant violated Section 8(a)(3) and (1) of the Act by
isolating Incardona from contact with other employees
changing the work hours of its employees and by dis
charging Incardona and Smith because of their union ac
tivities Finally the complaint sought a bargaining order
to remedy the alleged unfair labor practices The Appli
cant denied all such allegations It further contended that
Incardona was a supervisor within the meaning of the
Act and therefore excluded from coverage under the
Act Finally the Union contended that no bargaining
order could issue based on the union authorization cards
obtained by Incardona a statutory supervisor I found in
favor of the Union on all its contentions and recom
mended that the complaint be dismissed in its entirety
The Board affirmed my rulings findings and conclu
sions and adopted my recommended Order dismissing
the complaint
The General Counsel concedes that the Union is a pre
vailing party but contends that the issuance of the com
plaint was substantially justified
III SUBSTANTIAL JUSTIFICATION
EAJA provides that an administrative agency award
to a prevailing party certain expenses incurred in connec
tion with an adversary adjudication unless the agency
finds the position of the Government is substantially
justified The Board has held that the test is one of rea
sonableness Where the Government can show that its
' At the trial I dismissed an allegation that the Applicant violated Sec
8(a)(1) through Dolores Valdez the wife of the Union s business manag
er Leo Valdez by interrogating Jill Smith about her union activities and
those of other employees This allegation was dismissed at the trial be
cause the General Counsel had failed to establish that D Valdez was an
agent of the Applicant or that the Union was liable for her conduct
case had a reasonable basic both in law and fact no
award will be made Enerhaul Inc 263 NLRB 890
(1982) revd 710 F 2d 748 (11th Cir 1983) Shellmaker
Inc 267 NLRB 20 (1983) After the 1985 amendments to
EAJA the Board had held that substantially justified
means more than mere reasonableness See e g Lee
ward Auto Wreckers 283 NLRB 574 (1987) Painters
Local 277 (Polls Wallcovermg) 281 NLRB 890 (1986)
In the instant case the General Counsel argues that
the issues of whether Incardona was a supervisor and
whether Incardona and Smith were discharged by the
Union because of their union activities in violation of
Section 8(a)(3) of the Act clearly turned on credibility
resolutions and inferences drawn from the credible evi
dence The Board has held that the General Counsel is
substantially justified when evidences if credited by the
trier of fact would constitute a prima facie case of un
lawful conduct See SME Cement 267 NLRB 763
(1983) Charles H McCauley Associates 269 NLRB 791
793 (1984) In Leeward Auto Wreckers supra at 575 the
Board held that the fact that the General Counsels wit
ness could not be expected to be credited was irrelevant
since it is the trier of fact and not the General Counsel
which must determine whether a particular witness testa
mony is worthy of belief or should be discounted
The Applicant correctly argues that the Regional Di
rector knew at the time that he issued the complaint that
Incardona was a statutory supervisor and therefore that
her discharge could not be violative of the Act During
the investigation of the unfair labor practice case Incar
dona gave an affidavit to an agent of the Regional Direc
tor which stated inter alia
I did not have the authority to hire and fire em
ployees however I could make effective recommen
dations that someone be hired or fired
The affidavit further revealed two examples of employ
ees hired on Incardona s recommendation At trial the
Applicants attorney was able to establish with use of the
affidavit that Incardona recommended for hire five office
clericals and recommended the discharge of two office
clericals Thus on the basis of Incardona s testimony it
was established that she was a supervisor within the
meaning of the Act and therefore her discharge could
not be a violation regardless of whether she was fired for
union activities See e g Parker Robb Chevrolet 262
NLRB 402 (1982) Accordingly the General Counsel
could not establish a prima facie case regarding Incar
dona s discharge based on the evidence in the Govern
ment s possession at the time of the issuance of the com
plaint
The General Counsel argues that I must view Incar
dona s testimony in isolation apart from the proffered
defense in order to determine whether the General
Counsel was substantially justified in issuing the com
plaint Assuming arguendo that the General Counsel is
correct I still conclude that Incardona s own affidavit
established her supervisory status2 and the basis for dis
2 The possession of any one of the authorities specifid in Sec 2(11) is
sufficient to place an employee in the supervisory class See e g Ohio
Continued
LABORERS LOCAL 270 435
missal of the complaint allegations regarding her dis
charge
The Applicant did not allege that the General Counsel
was not substantially justified concerning the complaint
allegations regarding Smith The General Counsel estab
lished a strong prima facie case regarding Smiths dis
charge That case was overcome by the Applicants de
fense apparently not available to the General Counsel
before trial that Smith would have been discharged even
in the absence of her union activities The Unions suc
cess in this defense was in part attributable to my credit
mg the testimony of its witnesses particularly Leo
Valdez the agent who discharged Smith Accordingly I
find that the allegations concerning Smith s discharge
were substantially justified
IV THE APPORTIONMENT OF REASONABLE FEES AND
EXPENSES
An applicant may not be compensated under EAJA
for fees and expenses incurred in litigating matters in
which the Government s position was substantially justi
fled as it would contravene the purposes of EAJA to re
quire the Government to bear the expense of defending
its reasonable positions Matthews v US 713 F 2d 677
684 (11th Cir 1983) Atlas Reporting Service v Aboritz
698 F 2d 193 197 (3d Cir 1983) The Government
should only be charged with that portion of the expenses
attributable to its unjustifiable positions
In the instant case the Applicant seeks fees and ex
penses for defending the entire case However as the al
legations concerning Smith were substantially justified I
shall apportion the reasonable expenses accordingly Ap
Power Co v NLRB 176 F 2d 385 387 (6th Cir 1949) Fair Lady 211
NLRB 189 (1974)
proximately 75 percent of the record transcript pages are
devoted to issues concerning Incardona and only 25 per
cent concern Smith Similarly only 25 percent of the
Union s brief to the judge concerned Smith and 75 per
cent concerned Incardona Accordingly I shall reduce
the award to reflect that only 75 percent of the hours
claimed by the Applicants attorney are compensable
I reject the General Counsels contention that the
proper apportionment of fees should be 50 percent The
General Counsels argument fails to take into account the
allegations of the complaint that failed as a matter of law
because Incardona was a supervisor Further the Gener
al Counsel had no justification for the complaint allega
tions regarding the wife of the Union s business manager
In any event precision in this matter is not possible and
doubts must be resolved against the wrongdoer responsi
ble for the existence of the uncertainty The General
Counsel correctly argues that no fees should be allowed
for the Unions brief answering the General Counsels ex
ceptions because the General Counsel only filed excep
tions to the dismissal of Smith s case The award has
been reduced accordingly
The Applicant seeks attorneys fees at the rate of $135
per hour Section 102 145(b) of the Board s Rules and
Regulations sets a maximum of $75 per hour Thus al
though I find the rate claimed by the Union s attorney to
be reasonable for such services in this community and in
this case I am constrained to limit the award to $75 per
hour pursuant to Section 102 145(b) See Brandeis School
287 NLRB 836 (1987)
Based on the findings and conclusions I shall recom
mend that the Applicant be awarded fees and expenses
including time spent pursuing its application under
EAJA See Tyler Business Services v NLRB 695 F 2d 73
(4th Cir 1982) DeBolt Transfer 271 NLRB 299 (1984)
[Recommended Order omitted from publication ]