Macdonald Miller Co.

National Labor Relations Board - Board Decisions

Apr 21, 1987

283 N.L.R.B. 676 (N.L.R.B. 1987)

676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
MacDonald Miller Company and United Association
of Journeymen and Apprentices of the Plumbing
and Pipe Fitting , Industry of the United States
and Canada, Local No. 32.- Case 19-CA-
16489(E)
21 April 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 19 May 1986- Administrative Law Judge
James M. Kennedy issued the attached supplemen-
tal decision. The General Counsel filed exceptions
and a supporting brief, and the- Applicant filed an
answering brief in response to the General Coun-
sel's exceptions. -
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.
The complaint in the underlying proceeding al-
leged that the Applicant violated, Section 8(a)(3)
and (1) of the Act by discharging Raymond Atkin-
son and Kenneth Dulaney because they were the
subject of a grievance filed by the Union on their
behalf and because of their union and other pro-
tected activities.
On 25 November 1985 the Board' adopted the
judge's findings that Atkinson was a supervisor and
that the General Counsel did not prove that the
Respondent violated Section 8(a)(3) and (1) by dis-
charging Atkinson and Dulaney. The judge based
his finding that Atkinson was a supervisor on the
fact that he was a foreman, received a premium
wage, attended supervisory meetings, and inde-
pendently assigned work to other employees. Even
assuming Atkinson was not a supervisor, the judge
also found that the General Counsel was unsuccess-
ful in proving either that the Respondent unlawful-
ly discharged Atkinson and Dulaney because of
their participation in union and other protected ac-
tivities or that their discharges were inherently de-
structive of their Section 7 rights. The Board
adopted the judge's recommended Order and dis-
missed the complaint.
In his supplemental decision the judge correctly
noted that under Section 504(a)(1) of the Equal
1 277 NLRB 701 (1985)
'Access to Justice Act (EAJA)2 a prevailing- party
may receive an award for fees incurred in connec-
tion with an adversary adjudication - involving an
administrative agency -unless the agency was "sub-
stantially justified." He -further noted that Congress
clarified that phrase as meaning "more than merely
reasonable,"3 observing, however, that EAJA is
not - designed to deter the Government from ad-
vancing in good faith close questions of law or
fact.4 The judge concluded that in the face of ob-
jective factors, i.e., title, wage, and duties, the Gen-
eral Counsel at all times should have known that
Atkinson was a supervisor. The judge also found
that the General Counsel should have realized that
established Board law rejects the application of the
"inherently destructive" theory to nonanimus job
loss and that -as to the application of the traditional
theories for an unlawful discharge allegation she
was missing vital elements in proving a violation.
The judge therefore concluded that the General
Counsel was not substantially justified in proceed-
ing with the case and awarded the Applicant
$16,489.34 plus any additions and expenses it may
incur in pursuing this EAJA claim if the General
Counsel filed exceptions to the judge's supplemen-
tal decision.
In 'her exceptions the General Counsel contends
that she was substantially justified in -bringing this
case to the Board because the case turned on credi-
bility issues5 and inferences to be drawn from the
facts. 6 The General Counsel argues that-the judge
erred in equating what he believed to be easily re-
solved credibility issues with the absence of such
issues 7 and failing to draw reasonable inference
from the General Counsel's evidence. We agree.
The facts in the underlying case are as follows.
The Applicant does construction and maintenance
work in the Seattle, Washington area. The Appli-
cant's construction department employees (pipefit-
ters) install heating and air-conditioning equipment
in buildings under construction while the refrigera-
tion department employees (refrigeration mechan-
ics) do service and maintenance. Some new con-
struction employees' work had been assigned, how-
ever, to the refrigeration department employees.
Approximately 90 percent of this work was as-
signed to Atkinson and Dulaney.
2 S. Rep. No. 96-253, 96th Cong, 1st Sess. 6 and 14 (1979); H.R. Rep
No. 96-1418, 96th Cong., 2d Sess. 10 (1980).
8 H.R. Rep No. 99-120, 99th Cong., 1st Sess. 9 (1985). See also Penco,
Inc, 278 NLRB 1095 (1986)
4 Shellmaker, Inc., 267 NLRB 20, 21 (1983).
5 See, e.g, Natchez Coca-Cola Bottling Co, 269 NLRB 877, 878 (1984).
5 See Bosk Paint & Sandblast Co, 270 NLRB 514 (1984); Iowa Parcel
Service, 266 NLRB 392 (1983), enfd sub nom. Iowa Express Distribution v.
NLRB, 739 F.2d 1305 (8th Car. 1984), cert. demed 105 S.Ct 595, and 105
S.Ct. 1385 (1984).
7 See University of New Haven, 279 NLRB 294, 295 fn. 10 (1986).
283 NLRB No. 98
MACDONALD MILLER CO.
United Association of Journeymen and' Appren-
tices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local No. 32 (the
Union), separately represents the refrigeration me-
chanics and the pipefitters and had a collective-bar-
gaining contract for each department. The Union's
refrigeration department contract expired in 1982
and was not renegotiated . The Applicant also had a
collective-bargaining contract (the National Agree-
merit) with the Union's parent International Orga-
nization. In the absence of a contract with the re-
frigeration mechanics, the. Applicant invoked what
it assumed were its rights under, the National
Agreement to assign new construction work to re-
frigeration department employees at the refrigera-
tion mechanics' pay scale. 8 The Union believed
that new construction work was subject to its con-
tract with the Applicant covering the pipefitters
and that refrigeration mechanics doing new con-
struction work should be paid the pipefitters' wage
scale (an additional $1.57 per hour) for this work.
On 18 July 19839 the Union mailed a memoran-
dum to its members in the refrigeration department
asking them to keep track of the time spent doing
construction work so that the Union could be sure
that they were being paid the correct amount. At-
kinson was then shop steward, but did not keep
records or report problems to the Union. Sometime
in August, Dulaney complained to Union Business
Representative John Fitzgerald that he was not
getting the higher pay for the construction work
he was doing. When the, situation continued into
mid-November, Union Business Manager Floyd
Sexton asked ,the Applicant for a step 2 grievance
meeting in accord with the pipefitters' contract. He
asserted that the Applicant- had violated the con-
tract by not paying the proper wages and fringe
benefits on new construction work. The grievance
did not name the affected employees. It also
skipped step 1 that required direct discussion be-
tween the aggrieved employee and his immediate
supervisor. Virgil` Timmerman, the Applicant's vice
president, was confused by the grievance since he
did not consider the new construction work as-
signed to the refrigeration mechanics to be pipefit-
ters' work.1 ° Timmerman also insisted that, to be
valid, the grievance must start at step 1. He and
Sexton could not agree on this point. They had
many -conversations in 1983 and January 1984
about the new- construction work, with Sexton in-
sisting that the pipefitters' wage rate applied and
The refrigeration department contract permitted the Applicant to
assign new construction work to the refrigeration mechanics.
Unless otherwise stated all dates are in 1983 or January 1984.
10 The grievance did not describe the work involved.
677
Timmerman remaining adamant that the refrigera-
tion mechanics' wage rate was applicable.
In early January Foreman Lyle Schramm, sus-
pecting that the new construction work might be
transferred to the pipefitters, made some notes
about the desirability of retaining Atkinson if this
occurred . His notes included a list of Atkinson's
shortcomings and the observation that. Atkinson
"makes comments to his fellow employees that [the
Applicant] is anti-union implying mistrust by using
negative comments to induce mistrust:" During this
time the Applicant hired four refrigeration mechan-
ics. In late January Timmerman decided to assign
the new construction work to the pipefitters.1' On
January he issued a memorandum announcing the
change, citing his inability to resolve the new work
construction grievance as the reason. That after-
noon the Applicant decided to discharge Atkinson
and Dulaney.12
Schramm met with them individually and gave
each of them a copy of the Timmerman memoran-
dum and a termination slip along with their final
checks. During his interview Schramm told Atkin-
son that there was, nothing wrong with his work
but answered, "no" in response to Atkinso n's ques-
tion whether he could do service work. The "for
cause" box was checked on Atkinson's termination
slip. Dulaney had a similar interview with
Schramm. Dulaney asked Schramm if the dis-
charge was permanent or until the grievance was
resolved. Schramm replied it was permanent.
Schramm also refused to discuss the quality of Du-
laney's work, but agreed that Dulaney was a, "good
mechanic." Dulaney's termination slip, like Atkin-
son's, had the "for cause" box checked. Dulaney
asked Schramm for an explanation . In response,
Schramm wrote in the explanation section of the
slip: "per grievance from Local 32."13
1. ATKINSON'S SUPERVISORY STATUS
In his supplemental decision the judge,found that
the only credibility question to be decided "was
when, not if, Atkinson became the new construc-
tion foreman." The judge further found that the
General Counsel was not reasonable in taking the
position that Atkinson was not a supervisor, citing
Atkinson's title, premium' wage, duties, and Fitz;
gerald's' admonition to Atkinson that under the
contract he could not simultaneously hold the posi-
11 In a memorandum written at the time, he observed that if the new,
construction work was assigned to the pipefitters then the refrigeration
mechanics doing this work would have to be let go
12 Schramm testified that it was he who had "suggested" that Atkin-
son and Dulaney be fired.
is The explanation portion of the slip is preceded by the printed state-
ment, "If not eligible for rehire state reason."
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions of foreman and steward. The judge noted that
Atkinson denied having had supervisory status but
concluded that "in the face of the foregoing objec-
tive factors his denial should not have been given
controlling weight."
-Atkinson was hired by the Applicant in May
1978. He was hired as a service mechanic in the re-
frigeration department but was paid the foreman
rate. The Applicant paid the higher rate to selected
service mechanics in order to keep them from leav-
ing. Atkinson began performing new construction
work in 1982. In March 1983 Atkinson learned that
he had been made foreman. About this time the
Applicant discontinued the premium rate to service
mechanics who were not foremen.
As foreman, Atkinson attended meetings of the
construction department where he reported on the
status of refrigeration work on construction
projects and was advised of new projects that
would involve new construction work. Atkinson
did not assign work. Rather, assignments were
made by the dispatcher. However, in February
1983, he did recommend that Dulaney be given the
Bellevue Square job. In late November 1983 Atkin-
son was told by Union Business Representative
Fitzgerald that he could not be both foreman and
union steward and that the Union must elect a new
steward. An election was held shortly thereafter
with Dulaney selected as steward.
The General Counsel concedes that Atkinson
held the title of 'foreman at the time he was dis-
charged but contends that his supervisory status
and not his job classification was the issue to be re-
solved by the judge's credibility findings. She fur-
ther contends that the judge erred in finding that
the General Counsel acted' unreasonably in failing
to recognize that "objective factors" nullified At-
kinson's denial that he was a supervisor, the appli-
cability of the factors being dependent on the
judge's discrediting Atkinson's testimony and his
adverse interpretation of the General Counsel's evi-
dence. We agree.
In an EAJA case the judge does not resolve con-
flicting testimony in determining whether the Gen-
eral Counsel had substantial justification in issuing
a complaint. This determination is made on the
basis of the General Counsel's evidence alone.14
Contrary to the judge, we find that the "objective
factors" covering Atkinson's status on which he
relied do not negate a finding that the General
Counsel was reasonable in relying on Atkinson's
denial that he was a supervisor to overcome Atkin-
son's testimony that he was not a supervisor.
14 See, e .g., Carmel Furniture Corp., 277 NLRB 1105 (1985), Western
Publishing Co, 276 NLRB 1566 (1985), Der,ckson Co., 270 NLRB 516
(1984).
Atkinson testified that except for attending con-
struction department. meetings, there was no
change in his duties and authority after the Compa-
ny made him a foreman in March 1983. The judge
asserted that Atkinson's testimony was patently un-
believable in light of his title, premium wage,
duties, and Union Representative Fitzgerald's state-
ment that the Union's, contract with the Company
precluded Atkinson from holding both the posi-
tions of foreman and steward. There is no question
but that the fact that Atkinson held the title of
"foreman" does not, standing alone, 'establish that
he was a supervisor.15 Nor did his "premium
wage," especially because this was not an increase
over what he had received before becoming fore-
man and the Applicant had a history of paying a
higher wage rate to keep skilled employees. Simi-
larly misplaced was the judge's reliance on Atkin-
son's supervision of Dulaney on the Bellevue
Square project. Atkinson's testified that, at the Ap-
plicant's behest, he recommended Dulaney'for the
Bellevue Square job. He further asserted that he
did-not supervise Dulaney on the job but only peri-
odically checked to see how the work was pro-
gressing . Moreover, Dulaney began work at the
Bellevue Square project in February 1983 before
Atkinson was made a foreman. Finally, Fitzgerald's
conclusion that Atkinson could not be a "foreman"
and a steward does no more than suggest the possi-
bility that the Union's business representative
thought Atkinson might be a supervisor. Thus, we
do not agree that the objective evidence was such
that the General Counsel should have rejected At-
kinson's assertion that the change in his title in
March 1983 did not result in any-change in his, re-
sponsibilities such that he became a supervisor. _ Ac-
cordingly, we find that the General Counsel was
substantially justified in accepting Atkinson's denial
of supervisory status.
II. THE TRADITIONAL THEORIES
In issuing the complaint the General Counsel
employed traditional theories for litigating an
8(a)(3) discharge , namely, that the Employer dis-
charged the employee because of his union activi-
ties. In the underlying decision the judge found
that the General Counsel failed to prove employer
knowledge and animus, two essential components
for an 8(a)(3) discharge allegation under the tradi-
tional theories. He found that there was no , evi-
dence that the Company knew that Atkinson and
Dulaney had engaged in union •activity or that it
had animus against them for engaging in such ac-
tivity.
1 5 See, e.g, Magnolia Nursing Home, 260 NLRB 377, 385 (1982).
MACDONALD MILLER CO.
In his supplemental decision the judge found that
the General Counsel knew at the time the hearing
in this case began that the Applicant was unaware
that Atkinson and Dulaney had voiced complaints
to the Union about being underpaid . He observed
that although the Applicant knew that Atkinson
and Dulaney would be the individuals discharged
when the new construction work was transferred
to the pipef tters, this was not the same as its
knowing that they were engaged in union activity.
As to the General Counsel 's failure to prove
animus, the judge noted that the collective -bargain-
ing relationship between the Union and the Appli-
cant had existed over a long period of-time and
that it continues to exist.
The judge further noted that the General Coun-
sel does not contend that Applicant unlawfully
breached the terms of its collective -bargaining con-
tracts with the Union and concedes that the Appli-
cant's -decision to transfer the new construction
work from the refrigeration mechanics to the pipe-
fitters was lawful. He concludes that it was patent-
ly illogical for the General Counsel to find the
transfer of work to be lawful and then to find un-
lawful the discharges of Atkinson and Dulaney that
resulted from the transfer of that work. This incon-
sistent position, he maintained, was tantamount to
an admission by the General Counsel that the dis-
charges were not discriminatory and that she could
not prove animus . The judge further found no
merit in the General Counsel 's contention that
proof of animus could be sustained on the grounds
that Atkinson and Dulaney had been union stew-
ards; the Applicant had hired four refrigerator me-
chanics shortly before discharging Atkinson and
Dulaney; and Schramm's testimony that Atkinson's
accusation that the Applicant' was- antiunion had
been ' considered by Schramm when he suggested
that Atkinson be discharged . As to Schramm's note
concerning Atkinson's accusation , the judge sur-
mised that Schramm probably considered Atkinson
to be a supervisor whose accusations could have
had a disruptive effect on employees who believed
him, but the judge concluded that in -any event
Schramm's belief was obviously a non sequitur and
could not, be a basis for concluding that the Appli-
cant harbored animus . For, reasons set forth below,
we find that the General Counsel was substantially
justified in alleging that the Applicant knew that
Atkinson and Dulaney were engaged in union ac-
tivities and had animus towards them for engaging
these activities.
The judge erred in not considering the reasona-
ble inferences that could have been drawn from the
General Counsel's evidence . With' respect to
knowledge, the Applicant knew that Atkinson was
679
the steward at the time the grievance originated
and that Dulaney became the steward close to
when the grievance was filed.16 The Applicant's
knowledge, combined with its awareness that At-
kinson and Dulaney would be the employees most
affected by a resolution of the grievance favorable
to the Union, could have led the General Counsel
to reasonably infer that the Applicant had conclud-
ed that Atkinson and Dulaney had complained -to
the Union about their wage rates and that they
were instrumental in having the Union bring the
grievance.
As to animus, we find that the jjudge also erred
by failing to consider reasonable inferences from
the General Counsel's evidence. Having concluded
that the Applicant suspected that Atkinson and Du-
laney had prompted the Union to file the griev-
ance, it was reasonable for the General Counsel to
infer that the Applicant blamed them for the hostil-
ity between it and the Union which the grievance
generated. Moreover, Schramm admitted that At-
kinson's accusation that the Applicant was antiun-
ion was a consideration in having him discharged.
Given this admission, it was reasonable for the
General Counsel to infer that Schramm believe
that Atkinson was a troublemaker, and that the Ap-
plicant's labor relations would be smoother without
Atkinson and Dulaney, another bothersome stew-
ard. Finally, the Applicant had hired four refrigera-
tor mechanics shortly before it discharged Atkin-
son and Dulaney, suggesting that refrigeration
work was available. Its discharge of Atkinson and
Dulaney rather than assigning them refrigeration
work reasonably suggests that the Respondent was
retaliating against them as a result of the Union's
pursuit of the grievance.
III. THE INHERENTLY DESTRUCTIVE THEORY
Normally, to sustain a finding that an employer
has committed an unfair labor practice in discharg-
ing an employee, the General Counsel has the
burden of proving that the employer's decision was
motivated by either a desire to discourage union
membership or to interfere with the exercise of
protected rights . In NLRB v. Great Dane Trailers,
388 U .S. 26 (1967), the Supreme Court recognized
an exception to the requirement of proving unlaw-
ful motivation where the employer 's conduct is
"inherently destructive" of the employees' right to
strike or engage in collective bargaining . Such con-
duct carries with it "`unavoidable consequences
which the employer not only foresaw but which he
16 Schramm testified that he was present at the meeting in late Novem-
ber or early December when Atkinson stepped down and Dulaney
became the steward.
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
must have intended' and thus bears `its own indicia
of intent."' 17
The General Counsel alleged that discharging
Atkinson and Dulaney because they were involved
with and were the subject of the grievance brought
by the Union was inherently destructive and violat-
ed Section 8(a)(3). The judge in his underlying de-
cision found no merit in this assertion. Citing Mon-
arch Machine Tool Co., 227 NLRB 1880 (1977), and
P. W. Supermarkets, 269 NLRB 839 (1984), he
found that the Board has rejected this theory in the
context of a nonanimus job loss related to a griev-
ance. The judge further found that even assuming
for purpose of argument that the inherently de-
structive theory was applicable to the discharges of
Atkinson and Dulaney, the Respondent effectively
rebutted the presumption of illegality by showing
under the test set forth in Fleetwood"' that the dis-
charges had a substantial and legitimate business
purpose. -
In his EAJA decision the judge found that the
General Counsel was not substantially justified in
advancing this theory to sustain the allegation in
the complaint, and that she should have recognized
the similarity between Monarch Machine Tool Co.
and P. W. Supermarkets and the instant case and
withdrawn the "inherently destructive" portions of
the complaint. The judge found that the General
Counsel failed to consider whether the Applicant's
compliance with the grievance constituted a sub-
stantial business justification within the meaning of
Fleetwood Trailer Co. and, as such, rebutted the
General Counsel's allegation that its act of dis-
charging Atkinson and Dulaney was "inherently
destructive."
Monarch Machine- Tool Co. and P. W. Supermar-
kets are factually distinguishable from the case at
bar.19 In those cases the grievance resulted in eco-
nomic losses to the employers who thus had a sub-
stantial business justification for laying off or dis-
charging the employees in question. Such was not
the situation here. The Union did not grieve that
the new construction work be performed solely by
pipefitters, but rather insisted that the employees
who were assigned this work be paid the pipefit-
ters" and not the refrigerators mechanics' wage
scale. Hence, arguably the Company had no sub-
stantial business justification for discharging Atkin-
17 NLRB v. Great Dane Trailers, supra at 33.
's NLRB v. Fleetwood Trailer Co, 389 US 375 (1967).
19 While it would have been desirable for the General Counsel in the
underlying case to have included in its brief a comparison of Monarch
Machine Tool Co. and P. W. Supermarkets and the instant proceeding, as
well as a consideration of the Applicant's alleged substantial business jus-
tification defense to the "inherently destructive" allegation , we find that
her failure to do so does not affect our conclusion that the General
Counsel was substantially justified in relying on the "inherently destruc-
tive" doctrine in issuing the complaint.
son and Dulaney because the cost to the Company
was the same if the work was done by them or by
the pipefitters . Accordingly, we find ' that the Gen-
eral Counsel was substantially justified in contend-
ing that the Applicant 's discharge of Atkinson and
Dulaney was "inherently destructive."
We find, therefore , that the General Counsel's
case had a substantial basis in fact and law. Based
on evidence that she had at the time and inferences
that could be drawn from the evidence, it was
"more than merely reasonable" for her to proceed
with the case . Further, the fact that the General
Counsel 's evidence - was ultimately found insuffi-
cient to prove the allegations against the Applicant
does not lead automatically to a conclusion that the
General Counsel was not substantially justified in
proceeding against the Applicant. Accordingly, we
shall deny the application for fees and expenses.
ORDER
It is ordered that the application of the Appli-
cant, MacDonald Miller Company, Seattle, Wash-
ington, for an award under the Equal- Access to
Justice Act is denied.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
JAMES M. KENNEDY, Administrative Law Judge. ' On
November 25, 1985, the Board issued its Decision and
Order in the above case; adopting the conclusions and
recommendation for dismissal set forth in my decision of
August 16, 1985. Thereafter, pursuant to the Equal
Access to Justice Act (EAJA), 5 U.S.C. § 504, MacDon-
ald Miller Company (the Applicant), Respondent therein,
filed on December 19, 1985, an application for an award
of fees and other expenses of litigation, The Board trans-
ferred the application to' me for ruling on December 26,
1985 . On January 8, 1986, the General Counsel moved to
dismiss with respect to certain perceived shortcomings in
the Applicant's net worth statement and other eligibility
matters. On January' 15, 1986, I conducted a conference
call with the parties and subsequently the Applicant filed
a motion to amend its application. The proposed amend-
ment corrected the apparent deficiencies seen by the
General Counsel, dropped certain precomplaint reim-
bursement claims, and added a claim for fees incurred in
opposing the General Counsel's exceptions to my deci-
sion, and a claim for work in seeking reimbursement,
both of which it had previously omitted. As a result of
these corrections, I granted the Applicant's, motion to
amend its claim and denied the General Counsel' s motion
to dismiss on February 3, 1986. On March 3, 1986, the
General Counsel filed its answer to the application sup-
porting it by a memorandum. On March 14, 1986, the
' 277 NLRB 701
MACDONALD MILLER CO. 681
Applicant filed a reply. The matter is not ripe for deci-
sion.
1. FACTS ESTABLISHED BY THE PLEADINGS
The pleadings first establish that at the time the com-
plaint was issued the Applicant was a mechanical con-
tractor having a net worth of slightly more than $3 mil-
lion operating from two locations (Seattle and Anchor-
age) and having 137 employees in various stated job clas-
sifications . It had no affiliated businesses . The General
Counsel , therefore, admits that the Applicant meets the
EAJA eligibility standards, and I so find.
Second, the General Counsel admits that the Applicant
is a prevailing party within the meaning of EAJA insofar
as the complaint alleged that the Applicant had dis-
charged two employees in violation of Section 8(a)(1)
and (3) of the Act. Specifically, the General Counsel
admits that it failed to prove that Raymond Atkinson
was a statutory employee and also failed to prove that
Atkinson and Kenneth Dulaney were unlawfully dis-
charged.
H. SUBSTANTIAL JUSTIFICATION
Under Section 504(a)(1) of EAJA a party prevailing in
litigation before a Government agency is entitled to ,an
award of attorney's fees and expenses incurred in con-
nection with that litigation unless the Government can
show that its position was "substantially justified." In
1985, the Congress amended EAJA to clarify, but not
change, the definition of the phrase, "substantially justi-
fied." That phrase means "more than merely reasonable."
See H.R. Rep. 99-120 at 9 (1985). See also Penco, Inc.,
278 NLRB 1095 (1986). At the same time , however,
EAJA is not designed to deter the Government from ad-
vancing in good faith close questions of law or fact.
Shellmaker, Inc., 267 NLRB 20, 21 (1983).
The Applicant contends that the General Counsel was
not substantially justified in issuing the complaint; con-
trariwise, the General Counsel contends that it was.
After carefully analyzing the factual pattern presented
here, I conclude that the Applicant's position should be
sustained. The General Counsel approached this case
with three different theories. The first was a reliance on
the "inherently destructive" doctrine. The second and
third theories can be combined for our purposes as the
traditional unlawful discharge theory requiring the Gen-
eral Counsel to establish each of four elements to prove
her case: the employee engaged in protected conduct,
the employer's knowledge that the employee had en-
gaged in such conduct, animus against the employee for
doing so, all followed by a discharge. With respect to
Atkinson, however, 'an additional issue was 'raised,
whether he was an employee subject to the Act's protec-
tions or a supervisor unprotected by the Act.
The facts of this case were not in significant dispute.
The only credibility question that was decided was
when, not if, Atkinson became the new construction
foreman. Even that matter was, not particularly signifi-
cant to the decision as his discharge occurred at least 2
months after he had been made foreman under his ver-
sion . Contrary to his testimony, I found, however, that
he had become foreman some 9 months before.
In any event, Atkinson and Dulaney were simulta-
neously discharged on January 25, 1984, when the Appli-
cant transferred certain refrigeration construction work
from its refrigeration department to its construction de-
partment. The Union represented employees in both de-
partments; but in separate collective-bargaining units. At-
kinson and Dulaney were in the refrigeration depart-
ment. The Applicant had traditionally assigned new con-
struction refrigeration work to employees in that depart-
ment, particularly to those two individuals. Refrigeration
department employees had previously enjoyed benefits
paid under the so-called refrigeration contract. That con-
tract specifically permitted refrigeration department em-
ployees to perform the new construction refrigeration
work. When it was not renewed, for reasons not fully ex-
plained in the record, the Union asserted that individuals
who were assigned that work should be paid under the
construction contract. That would require a pay increase
of $1.57 per hour as the construction contract did not in-
corporate the lower refrigeration rate. In furtherance of
that aim, the Union filed on November 23, 1983, a step 2
grievance under the construction contract alleging that
the Applicant was not paying the construction rate to in-
dividuals performing new construction refrigeration
work. Neither Atkinson nor Dulaney was specifically
named in the grievance. Unable to persuade the Union
that it was privileged to assign the work as it always
had, the Applicant, on January 25, 1984, transferred the
work from the refrigeration department to the construc-
tion department,' simultaneously discharging those two
individuals. Each was given a copy of a company memo
that 'referred to the company president's inability to re-
solve the grievance in the Applicant's favor and directed
the work be transferred. When Dulaney asked for fur-
ther explanation, his supervisor wrote on his termination
slip that the discharge was "per grievance from Local
32."
The evidence also showed that Atkinson had been the
Union's steward in the refrigeration department until late
November or early December 1983 when the Union or-
dered 'him replaced. Atkinson, however, had never been
an active steward and had never advised any of the Ap-
plicant's officials regarding his view of the grievance.
After Dulaney's accession to stewardship, he did nothing
about it either, preferring to rely on the previously filed
institutional grievance. Both had, however, given the
union officials some information with respect to their
being assigned refrigeration construction work. Their co-
operation, however, was unknown to the Applicant.
The Inherently Destructive Theory: The General Coun-
sel's first theory was that because the Applicant admitted
that Atkinson and Dulaney were discharged because of
the Union's grievance, such an admission constituted a
"per se" violation of the Act. Her representatives point-
ed to a line of Supreme Court cases following the "in-
herently destructive" doctrine including NLRB v. Erie
Resistor Corp, 373 U.S. 221 (1963); NLRB v. Great Dane
Trailers, 388 U.S. 26 (1967); and NLRB v. Fleetwood
Trailer Co., 389 U.S. 375 (1967).
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel performed no analysis of the
doctrine or why it applied to the facts of this case. The
doctrine principally applies to an employer's treatment of
strikers. Moreover, the doctrine has respectably been de-
scribed as requiring evidence both bearing its own indi-
cia of.intent and having far-reaching effects, such as hin-
dering future bargaining or discriminating solely on the
basis of participation in strikes or union activity. Port-
land-Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th
Cir. 1976). Here there was no strike' and the union activi-
ty was minimal. Moreover,- the discharge on its face was
not based solely on that supposed activity; it had another
visible motive, compliance with a grievance. Finally, the
inherently destructive theory is not without limits. In
American Ship Building Co. v. NLRB, 380 U.S. 300, 309,
313 (1965), the Supreme Court had said that employees
who exercise Section 7 rights do not immunize them-
selves from economic disadvantage-"where the inten-
tion . . . is merely to bring about a settlement of a labor
dispute on favorable terms, no violation of Section
8(a)(3) is shown." Indeed, the Board has applied tradi-
tional analysis, not "inherently destructive" analysis, in a
nonanimus job loss arising in a similar grievance context.
Monarch Machine Tool-Co., 227 NLRB 1880 (1977). The
General Counsel seems to have been unaware of Mon-
arch at the time it issued this complaint. Yet, less than a
week after issuance, the Board decided P. W. Supermar-
kets, 269 NLRB-839 (1984), reaffirming Monarch and,re-
fusing to apply the "inherently destructive" doctrine to
yet another nonanimus job loss arising from, a grievance.
Had the General Counsel been acting reasonably, he
would have recognized the similarity between Monarch,
P. W. Supermarkets, and the instant case. At the time P.
W. Supermarkets was decided, 9 months still remained
before this hearing was to open. Her representatives
should have used that time to reflect on the similarities
of the cases and should have withdrawn the "inherently
destructive" portions of the complaint.
The Board, of course, agreed that the inherently de-
structive theory had no application to this fact pattern.
But assuming it did, Fleetwood holds that if the employer
can show a "substantial business justification" for its con-
duct,'-even that theory can be rebutted. Here there is no
evidence that the General Counsel ever considered
whether the Applicant's compliance with the Union's
grievance would constitute a "substantial business justifi-
cation" within the ' meaning of Fleetwood. Two of the
Board's panel members agreed `with me that it would.
Member' Babson said it was unnecessary to decide the
question for the matter did not fall into the inherently
destructive category in the first place. Yet, the point
here is that the General Counsel thought it did,- but
failed to consider the Applicant's obvious 'defense as
having any merit whatsoever.
Thus, on two fronts the General Counsel's representa-
tives failed to act reasonably in advancing this theory:
(1) they failed to recognize established law as rejecting
the theory in the context of a nonanimus job loss related
to ' a grievance, and (2) they failed even to consider a
self-evident defense.
The Traditional Theories: Yet, the General Counsel
must have recognized that the inherently destructive
theory might not succeed for her representatives includ-
ed two alternate, but traditional theories. They alleged
that Atkinson and Dulaney had been discharged because
of their union activities or because of their protected
concerted activities. As noted above, however, four ele-
ments of proof are required. The most significant ele-
ment is animus . Animus, of course, is established by evi-
dence suggesting that an employer has an unlawful
reason for the discharge-usually to discourage union or
other protected concerted activities. Here, the record is
remarkably devoid of any such evidence. First, the col-
lective-bargaining relationship, between the Applicant
and the Union is a mature one, having existed for -many
years and through many contracts in at least two bar-
gaining units . Although the refrigeration contract seems
now to have come to an end, the General Counsel has
not accused the Applicant of engaging in any unlawful
activity with respect to its demise. Simultaneously, , of
course, the Applicant continues to have an ordinary rela-
tionship with the Union with respect to its construction
bargaining unit. Second, there is no evidence of any in-
dependent 8(a)(1) conduct. Third, the Applicant has not
been accused of unlawfully breaching any term of a col-
lective-bargaining agreement. Fourth, and most signifi-
cant, the General Counsel has always conceded that the
Applicant's decision to transfer the work from the refrig-
eration department to the construction department to be
lawful. Frankly, I have never understood the General
Counsel's logic here. If the discharge of the two individ-
uals was unlawful, as she contends, and if the discharge
was the direct result of the transfer of work, why would
she not also have alleged that the work transfer itself
was unlawful? It, seems to me that the concession that
the transfer of work was lawful is tantamount to an ad-
mission that persons who lost employment as a result of
that transfer were not victims of discrimination. To me
the General Counsel's inconsistent position here is a
direct concession that no animus could be proven.
The General Counsel, nonetheless, has argued vigor-
ously that animus should be inferred from other facts.
Her representative notes that Atkinson and Dulaney
either were or had been union stewards; she notes that
four individuals had been hired shortly before their dis-
charge; and she makes a final observation, with respect to
the amount of nonconstruction work that these two indi-
viduals had performed, stating that similar amounts of
work remained to be performed.
Yet, it is well settled that, standing alone, the dis-
charge of a steward, is not evidence of union animus;2
neither is the, fact that .Respondent had recently hired
others. Likewise, the availability of other work does not
necessarily carry with it the suggestion of illegal motive.
Finally, the General Counsel points to a, rather .obscure
personal note, made by Supervisor Schramm regarding
Atkinson. Schramm said that he believed Atkinson was
accusing the company of being antiunion and weighed
that against Atkinson in deciding to let him go. Schramm
2 Mead Corp, 275 NLRB 323 (1985); Manville Forest Products, 269
NLRB 390, 391 (1984); Kaiser Aluminum Corp., 265 NLRB 541, 543
(1982); G & H Products; 261 NLRB 298, (1982); Freuhauf Corp., 255
NLRB 906, 910 (1981); Riviera Mfg. Co., 167 NLRB 772 (1967)
MACDONALD MILLER CO.
no doubt considered Atkinson to be a supervisor. That
being the case, he could see that Atkinson 's accusations
were inconsistent with his supervisory responsibilities
and might well have a disruptive effect on employees
who believed him . In any event, Schramm's belief was
obviously a non sequitur and cannot be a basis for con-
cluding that Respondent harbors animus.
Thus, it is clear that at all times the General Counsel
either knew or should have known that she did not have
in her possession any proof of the critical element of
animus to support a traditional violation of Section
8(a)(3).
In addition , however, the General Counsel also knew
that the Applicant was unaware that Atkinson and Du-
laney had ever voiced any complaints to the Union re-
garding the wage rates they were being paid . On the first
day of the hearing the General Counsel's representative
conceded that she could not prove the Applicant's
knowledge. Subsequently, her concession was borne out
for the General Counsel never did. That is not the same
as proving that the Applicant knew that Atkinson and
Dulaney would be the individuals who would be dis-
charged. Obviously, the Applicant knew that. But to
know who the dischargees were going to be is not the
same as saying that the Applicant also knew that they
had engaged in protected activity.
Thus, the General Counsel did not have evidence of
two of the four critical elements to support a traditional
violation of Section 8(a)(3) and (1). Even evidence of the
first element , union or protected activity, is scant.
Finally, had there been evidence of all four elements
with respect to Dulaney, the General Counsel was
unable to prove that Atkinson was a statutory employee.
The General Counsel knew that Atkinson had become a
foreman at least as late as November 1984 . It also knew
that the Applicant was contending that Atkinson had
been made foreman much earlier. Indeed, the General
Counsel knew that the Union considered Atkinson to be
a statutory supervisor for it had directed him in Novem-
ber 1984 to relinquish his stewardship duties in favor of
another. Moreover, Atkinson was paid the foreman wage
and could readily be seen as supervising Dulaney in his
work at the Bellevue Square project. Thus, it appears
that the General Counsel at all times had reason to think
that Atkinson was a statutory supervisor rather than an
employee, by virtue of his title, his wage, and his duties.
It is true that Atkinson denied his supervisory status but
in the face of the foregoing objective factors his denial
should not have been 'given controlling weight.
In conclusion, I find that the General Counsel acted
unreasonably in pursuing this complaint. Recently the
Board affirmed Administrative Law Judge Jerrold H.
Shapiro who found ' a lack of substantial justification in a
successorship case where the General Counsel proceeded
knowing that he was without proof of one of the ele-
ments constituting a violation , i.e., whether the union en-
joyed majority status of the successor's employees even
though some of those employees had not been on' the
payroll of the predecessor at the time of the transfer. Ev-
ergreen Lumber Co., 278 NLRB 656, 661 (1986). In Ever-
green the General Counsel, as here, failed properly to
assess the existing law as it applied to the theory of the
683
case . In some ways this case more strongly favors the
Applicant because here the law was against the General
Counsel on one theory , not just pregnantly silent as in
Evergreen. Accordingly, following the teaching of Ever-
green, I conclude that the General Counsel was not sub-
stantially justified in proceeding with this case . The law
was against her on one theory and she was missing the
elements of a violation in proceeding on the other. 3
The General Counsel has not argued that there are
special circumstances justifying the issuance of this com-
plaint and I am unable to perceive any. Neither does the
General Counsel argue that it was attempting to advance
the development of the law as suggested in S'hellmaker,
supra.
III. THE AWARD
In its application, as amended, the Applicant seeks re-
imbursement for attorneys' fees and expenses; incurred
after June 4, 1984, including fees and expenses for time
spent pursuing the EAJA application itself. In support of
its claim it has submitted itemized billings demonstrating
that its law firm expended 209.2 hours in both matters.
At the statutory rate of $75 per hour, the attorneys' fees
total $15,690. In addition, it claims expenses of $799.34
for a combined total of $16,489.34. The General Counsel
has not opposed these figures as unreasonable and I find
them to be proper.4
CONCLUSIONS OF LAW
1. The Applicant is a prevailing party within the
meaning of EAJA and meets the eligibility requirements
of EAJA.
2. The position of the General Counsel in issuing and
in prosecuting the complaint in this case was not substan-
tially justified nor were there special circumstances that
would make an award of attorneys' fees and expenses
unjust.
3. The Applicant is entitled to attorneys' fees and ex-
penses totaling $ 16,489 . 34, plus any additional fees and
expenses that it may incur in pursuing this E.AJA claim
in the event the General Counsel files exceptions to this
supplemental decision.
On these findings of fact and conclusions or law and
on the entire record, I issue the following recommend-
ed5
ORDER
It is recommended that the application of the Appli-
cant , MacDonald Miller Company, Seattle, Washington,
for an award under the Equal Access to Justice Act be
granted.
a See also the analysis of reasonableness set forth in De Bolt Transfer,
271 NLRB 299, 302-303 (1984).
4 Legal fees incurred in pursuing claims under EAJA are clearly re-
coverable. Evergreen Lumber Co., supra.
5 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
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that the Applicant be sponse to any exceptions that the General Counsel may
awarded the sum of $16,489.34, plus any fees and ex- ' choose to file.
penses that it may occur in pursuing its application in re-