National Fire Protection, Inc. And Mutual Sprinkler Contractors And Engineers, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1986

281 N.L.R.B. 624 (N.L.R.B. 1986)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Fire Protection , Inc. and Mutual Sprinkler
Contractors and Engineers, Inc. and Road
Sprinkler Fitters Local Union No . 669, U.A.,
AFL-CIO. Case 4-CA-13814(E)
29 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 23 January 1986 Administrative Law Judge
James L. Rose issued the attached supplemental de-
cision . The Applicant filed exceptions and a sup-
porting brief, and the General Counsel filed cross-
exceptions and brief in support of the cross-excep-
tions and in answer to the Applicant'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,2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the application of the Appli-
cant, National Fire Protection, Inc., and Mutual
Sprinkler Contractors and Engineers , Inc., Phila-
delphia, Pennsylvania, for an award under the
Equal Access to Justice Act be dismissed.
i In adopting the judge's decision denying the Applicant 's application
for attorney fees and expenses , we find in agreement with the judge that
the General Counsel was substantially justified in litigating the matter,
and, therefore, it is unnecessary to reach the issue of the Applicant's
timely filing
We find no merit in the Applicant 's contention that because the judge
in his original decision (JD-76-85) made credibility resolutions contrary
to those proposed by the General Counsel those rulings diminish her jus-
tification The record shows that credibility was a factor in union knowl-
edge concerning the relationship between National and Mutual and when
the Union learned about that relationship in allowing the application of
Sec 10(b) of the Act Where, as here, a credibility conflict cannot be re-
solved administratively through documentary evidence , Board practice
and procedure requires that such credibility issues be resolved at a hear-
ing before an administrative law judge
With respect to the judge 's statement that "[d]ismissal of the instant
complaint did not require making credibility resolutions adverse to the
General Counsel," the judge's comments immediately following the state-
ment indicate that he meant only to say, and emphasize , that credibility
was not a sine qua non-a requirement-for his deciding the 10(b) issue,
and not, as a more literal reading might suggest , that he did not make any
credibility findings in doing so
2 We believe that Congress, in revising the Equal Access to Justice
Act, 5 U S C § 504 (1982), as amended by Pub L 99-80, 99 Stat. 183
(1985), did not alter, but merely clarified the definition of "substantially
justified " "Substantially justified" means more than "mere reasonable-
ness " H R Conf Rep 99-120 at 9 (1985) We find that this standard has
been met in this case
Margarita Navarro-Rivera Esq., for the General Counsel.
Edward T Bresnan, Esq., of Blue Bell, Pennsylvania, for
Respondent National Fire Protection, Inc.
Jean B. Green, Esq., of Norristown, Pennsylvania, for
Respondent Mutual Sprinkler Contractors and Engi-
neers, Inc.
Patrick B. Shaw, Esq., of Washington, D.C., for the
Charging Party.
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
JAMES L. RosE, Administrative Law Judge. On 14
March 1985 ,1 I issued a decision recommending dismissal
of the General Counsel's complaint which alleges that
the Respondents had violated Sections 8(a)(5) and 8(d) of
the National Labor Relations Act. I concluded that the
substantive allegations were barred by Section 10(b) of
the Act.
In brief, the General Counsel had alleged that Mutual
Sprinkler Contractors and Engineers , Inc. (Mutual) was
the alter ego of, and a joint employer with, National Fire
Protection, Inc. (National) and that in certain material
respects Mutual had abrogated the collective-bargaining
agreement existing between National and Road Sprinkler
Fitters Local Union No. 669, U.A., AFL-CIO (the
Union).
The charge on which the complaint issued was filed
by the Union on 30 June 1983. Following a lengthy hear-
ing, which included evidence on the 10(b) defense as
well as on alter ego/single-employer status of the two
Companies , I concluded that the matter was time-barred.
On testimony of witnesses called by the General Coun-
sel, as well as a letter from the Union to National of 22
December 1982, I concluded that more than 6 months
prior to 30 June 1983 the Union had sufficient informa-
tion to require it to file the charge. I further concluded
that absent reliance on facts preceding the 6-month limi-
tation period, there could be no fording of a violation
within that period.
No exceptions were taken to my decision and the
Board issued an Order adopting it on 16 April 1985.
On 10 April (prior to the Board's Order), National
filed an application for counsel fees pursuant to the
Equal Access to Justice Act (EAJA). On 16 May it filed
an amended application, which the General Counsel as-
serts was received by the Board on 17 May, and was
therefore untimely as having been filed on the 31st day
following the Board's final order. The 30-day period is
jurisdictional and cannot be extended by the Board. B. J.
Heating & Air Conditioning, 268 NLRB 643 (1984). Thus,
if the 10 April application is not considered, then dismis-
sal for untimeliness would seem required. Whether the
10 April application satisfies the time requirement can be
persuasively argued either way, as counsel do. However,
since I conclude that the application should be denied
because the General Counsel was substantially justified
in litigating the matter, the issue of timely filing need not
be decided.
I All dates herein are in 1985 unless otherwise indicated
281 NLRB No. 100
NATIONAL FIRE PROTECTION
The General Counsel 's opposition to the Respondents'
amended application was treated by me as a motion to
dismiss . It was denied with leave granted to file an
answer. The General Counsel moved for special permis-
sion to appeal this decision , which was denied by direc-
tion of the Board on 17 October . On 16 October the
General Counsel filed an answer to the amended applica-
tion and a supporting brief. Thus, the matter is at issue
on National's application, as amended , for counsel fees
and the General Counsel's answer.
Although the answer raises several technical objec-
tions, the principal contention is that the General Coun-
sel was "substantially justified" in issuing the complaint
and litigating this matter . I agree and conclude that the
Respondents' application for counsel fees ought to be
denied for this reason . Thus, I deem it unnecessary to re-
solve the other contentions raised by the General Coun-
sel.
In forming its rules with respect to EAJA, the Board
stated in Section 102.144(a):
An eligible applicant may receive an award for fees
and expenses incurred in connection with an adver-
sary adjudication, or in connection with a signifi-
cant and discrete substantive portion of that pro-
ceeding, unless the position of the General Counsel
over which the applicant has prevailed was substan-
tially justified . The burden of proof ... is on the
General Counsel , who may avoid an award by
showing that his position in the proceeding was rea-
sonable in law and in fact.
In material part, Section 504(a)(2) of the EAJA, states
that recovery is not allowed "where the adjudicative of-
ficer finds that the position of the agency as the party to
the proceeding was substantially justified . . . ."
The legislative history of EAJA demonstrates that the
"[t]est of whether a Government action is substantially
justified would be essentially one of reasonableness.
Where the Government can show that its case had a rea-
sonable basis, both in law and in fact , no award would
be made ." H. R. 96th Cong., 2d Sess., No. 96-1005, Part.
1, p. 10 (1980). And in Union Carbide Building Co., 276
NLRB 1410 fn. 5 (1985), the Board stated, "We believe
that Congress , in revising the Equal Access to Justice
Act, 5 U.S.C. § 504 (1982), as amended by Pub. L. 99-
80, 99 Stat . 183 (1985), did not alter but merely clarified
the definition of 'substantially justified.' 'Substantially
justified ' means more than 'mere reasonableness,' H.R.
Rept. 99-120 at 9 (1985)."
Thus, it is necessary for an agency to show more than
simply lack of bad faith, or that it did not exercise arbi-
trary authority in pursuing an unmeritorious claim. Nev-
ertheless , an award of attorney fees is not automatic to
the prevailing party. See Spencer v NLRB, 548 F.Supp.
256 (D.C. Cir. 1982). Indeed , an award of fees is not
automatic even when the General Counsel fails to estab-
lish a prima facie case . Jim's Big M, 266 NLRB 665
(1983).
In East Tennessee Packing Co., 277 NLRB 1433 (1985),
the principal substantive issue was whether an employer
was the alter ego of its predecessor who had a bargain-
625
ing obligation with the charging party union . The com-
plaint was dismissed on a finding of no alter ego status.
The respondent's application for counsel fees was denied
by the Board, concluding that on the facts presented in
the underlying adjudication, the contrary inference was
reasonable. Which inferences were in fact drawn was not
dispositive . The issue is whether that evidence could rea-
sonably have supported the contrary finding. That, I be-
lieve, is the situation here.
Dismissal of the instant complaint did not require
making credibility resolutions adverse to the General
Counsel. Indeed , my conclusion that the Charging Party
had sufficient knowledge of what was going on between
the two named Respondents to require it to file a charge
was based on testimony from the General Counsel's wit-
nesses, and inferences drawn therefrom, as well as a
letter from counsel for the Union.
But the question is not what inferences were drawn
from the evidence presented. The question is whether
the evidence could reasonably have supported the con-
trary finding-either that the 10(b) period did not com-
mence running because the Union had insufficient knowl-
edge of the Respondents' activity, or there were 8(aX5)
violations arising out of the Respondents' conduct within
the 10(b) period. Although I concluded that Section
10(b) was a bar to the complaint herein, and that no in-
dependent violations could have been established within
the 10(b) period without relying on prior acts , I did so
because the issue was before me and the evidence pre-
ponderated in favor of that decision ; This does not mean
that the contrary position was unreasonable.
As the Court of Appeals for the Third Circuit pointed
out in NLRB v. Al Bryant, Inc., 711 F.d 543 (3d Cir.
1983), "there does not appear to be any clear precedent
on when the Section 10(b) period begins to run with re-
spect to section 8(aX5) charges growing out of double
breasted operations ." In that case the court affirmed the
Board's ruling that Section 10(b) was not a bar. Al
Bryant, Inc., 260 NLRB 128 (1982).
As the Third Circuit recognized , in this area of ongo-
ing relationships between business enterprises and one or
more of them with a labor organization, whether Section
10(b) bars a refusal-to-bargain complaint is difficult and
hazy and turns on an analysis of many facts . And so it
was here. Ruling that Section 10(b) barred the instant
matter was based on an analysis of what appears to be
the Board 's position in like cases, along with numerous
facts adduced at the hearing . Some different facts may
very well have suggested a different result . In any event,
I conclude that the General Counsel's contention con-
cerning Section 10(b) was not unreasonable , and in liti-
gating this complaint the General Counsel was substan-
tially justified. Further, although the alter ego and refus-
al-to-bargain issues were not reached , suffice it that there
was enough evidence adduced on these allegations to
find the General Counsel substantially justified in litigat-
ing the matter . I therefore conclude that the General
Counsel has refuted the predicate for an award under the
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equal Access to Justice Act, and I shall recommend the ORDER
following2
2 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.
It is ordered that the application, as amended , for at-
torney fees and expenses, filed by National pursuant to
the Equal Access to Justice Act and Section 102.143, et
seq., of the Board 's Rules and Regulations , be denied.