New York Newspaper Printing Pressmen's Union 2 (New York Times Co.)

National Labor Relations Board - Board Decisions

May 9, 2008

352 N.L.R.B. 444 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 63
444
New York Newspaper Printing Pressmen’s Union No.
2 and New York Times Company. Case 2–CB–
20454–E
May 9, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 1, 2007, Chief Administrative Law Judge
Robert A. Giannasi issued the attached Order granting
the General Counsel’s motion to dismiss the application
for fees under the Equal Access to Justice Act (EAJA).
The Applicant, New York Newspaper Printing Press-
men’s Union No. 2, filed exceptions with a brief in sup-
port and the General Counsel filed an answering brief.
The National Labor Relations Board1 has considered
the judge’s Order and the record in light of the excep-
tions2 and briefs and has decided to affirm the judge’s
findings3 and conclusions4 and to adopt the recom-
mended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the application of the Applicant,
New York Newspaper Printing Pressmen’s Union No. 2,
New York, New York, for attorney’s fees and expenses
under the Equal Access to Justice Act is denied.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 We deny as lacking in merit the General Counsel’s request to dis-
miss the Applicant’s exceptions on the ground that they are “proce-
durally deficient.”
3 In adopting the judge’s recommended Order, we do not rely on his
discussion of BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).
4 We agree with the judge that the Applicant is not a “prevailing
party” either under Buckhannon Board & Care Home, Inc. v. West
Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001), or
under Board precedent prior to Buckhannon (see, e.g., Carthage Heat-
ing Co., 273 NLRB 120 (1984)), and it is on this basis that we adopt the
judge’s recommended Order and dismiss the EAJA application.
In dismissing the application, Chairman Schaumber also relies on
the judge’s finding that the Applicant did not meet its burden of estab-
lishing that it was financially eligible for an EAJA award. In reaching
this conclusion, Chairman Schaumber agrees with the judge that the
Applicant did not present sufficient evidence to establish that it is not
controlled by its parent and affiliates and that therefore aggregation of
assets would not be appropriate.
Member Liebman does not rely on this finding.
ORDER GRANTING MOTION TO DISMISS
APPLICATION FOR FEES
1. Background
On July 6, 2007, the Board referred to me the Respondent’s
application for reimbursement of fees under the Equal Access
to Justice Act (EAJA) and the General Counsel’s motion to
dismiss that application. On July 23, 2007, I ordered the Re-
spondent to show cause why its application should not be de-
nied and gave both parties the opportunity to file further state-
ments of position. The parties subsequently filed further sub-
missions. Based on those submissions and the entire record in
this case, including the exhibits attached to the submissions of
the parties, I grant the General Counsel’s motion to dismiss the
Respondent’s application for fees.
Unlike in most EAJA matters, the underlying case here never
came to trial and neither an administrative law judge nor the
Board issued a decision. The case began with a charge filed by
the Employer (New York Times Company) on June 13, 2005,
alleging that the Respondent, which represents a unit of the
Employer’s printing employees, violated the Act by attempting
to cause the Employer to discriminate against employees based
on union status. The Employer’s charge was spawned by a June
10, 2005 letter from Respondent’s then counsel to the contract
arbitrator advising him of a dispute between Respondent and
the Employer, under the applicable collective-bargaining
agreement, regarding the Employer’s “intention to hire indi-
viduals to serve as working foremen that are not members of
Local 2 or any other GCIU affiliate.” The letter also claimed
that “with over 600 candidates within Local 2, and approxi-
mately 100,000 potential candidates within all of the GCIU
affiliates nationwide, there is no legitimate basis for the New
York Times to hire non-union employees as foremen.” It also
accused the Employer of engaging in an “ongoing campaign of
anti-union tactics.”
After the charge was filed, Respondent’s counsel wrote an-
other letter to the arbitrator, dated August 10, 2005, requesting
an expedited arbitration and clarifying Respondent’s position as
follows: “[T]he Union’s grievance concerning this matter re-
quests that you resolve whether under the collective bargaining
agreement and based upon more than 50 years of established
practice, the New York Times has agreed to limit the foreman’s
position to individuals that are members of the bargaining unit,
and whether the Company, having agreed to limit foremen’s
positions to unit members, has waived any right to hire from
the outside.”
Notwithstanding counsel’s clarification as set forth in the
August 10 letter to the arbitrator, the General Counsel alleges
that Respondent’s president, John Heffernan, continued to insist
that the Employer hire only union members for the foreman
positions. This allegation is supported by exhibits attached to
the motion to dismiss, which are not contested by Respondent.
The exhibits show that Heffernan testified at an arbitration
hearing in late August 2005, to the effect that the Union did not
object to nonunit promotions as long as those promoted were
members of Respondent. The exhibits also show that, in Sep-
tember 2005, Heffernan advised members in a newsletter that
the “Times does not have the right to hire nonunion foremen
NEW YORK NEWSPAPER PRINTING PRESSMEN’S UNION 2 (NEW YORK TIMES) 445
and try to force the union into accepting them into the local.”
The General Counsel also notes that the only provision in the
collective-bargaining agreement that addresses the hiring of
foremen is Section 5, which provides that the Employer is
“privileged to select any member of the Union in good standing
as foreman and assistant foreman.”
The investigation of the charge resulted in the issuance of a
formal complaint on June 30, 2006, which alleged that the Re-
spondent, violated the Act by demanding, through President
Heffernan, that the Employer hire only individuals who are
members of the Respondent for the position of assistant fore-
man, and also by requesting expedited arbitration under the
applicable collective-bargaining agreement in support of that
demand. The complaint further alleged that such conduct inter-
fered with employee rights under the Act and caused or at-
tempted to cause the Employer to discriminate against its em-
ployees by conditioning eligibility for promotion upon mem-
bership in Respondent, in violation of Section 8(a)(3) of the
Act, all in violation of Section 8(b)(1)(A) and (2) of the Act.
The answer to the complaint denied the substantive allegations
in the complaint, stating, as an affirmative defense, that the
Respondent was simply seeking to have the Employer hire
assistant foremen from the bargaining unit and not hire only
union members for those positions. The answer also alleged
that the matter should be deferred to the grievance-arbitration
provisions of the collective-bargaining agreement and that the
allegations were inconsistent with the Supreme Court’s deci-
sion in BE & K Construction Co. v. NLRB, 536 U.S. 516
(2002). In response to a further provision in the answer alleg-
ing that the complaint allegation regarding the supervisory
status of the assistant foreman was not relevant to the issues
raised in the charge and the complaint, and after unsuccessful
attempts at settlement, the Regional Director issued an
amended complaint on August 17, 2006, essentially dropping
the supervisory allegation of the original complaint.
On October 23, 2006, 2 days before the scheduled hearing on
the amended complaint, the General Counsel filed a motion
with Associate Chief Judge Joel Biblowitz to postpone the
hearing because a related pending arbitration hearing was
scheduled for November 29, 2006, which would provide the
Union the opportunity to present its interpretation of section 5
of the collective-bargaining agreement, the focus of at least part
of the amended complaint. According to the motion, a stay of
the unfair labor practice case was appropriate so that the Gen-
eral Counsel could evaluate whether the Union’s grievance is
without reasonable basis or for an unlawful object, citing BE &
K, supra, and Bill Johnson’s Restaurant, 461 U.S. 731 (1983).
Noting no opposition to the motion by the Employer or the
Respondent, Judge Biblowitz granted the motion on October
24, 2006.
On January 17, 2007, counsel for Respondent filed a motion
to dismiss the amended complaint on the ground that “[t]he
continued prosecution of this case is not consistent with BE &
K which requires the dismissal of the charge if the lawsuit is
reasonably based.” The Regional Director denied the motion
on February 2, 2007, stating that the pending unfair labor prac-
tice allegations were broader than the subject matter being arbi-
trated by the parties. She also stated that the pending arbitra-
tion award might impact the issue of whether section 5 of the
contract was unlawful.
On February 10, 2007, the arbitrator issued an award deny-
ing the Respondent’s grievance in the arbitration referred to
above. He described the parties’ positions as follows: The
Respondent’s position was that section 5 required the Employer
to select foremen and assistant foremen only from the bargain-
ing unit. The Employer’s position was that the applicable lan-
guage in section 5 required the Employer to select only from
Respondent’s membership and that would violate the National
Labor Relations Act. Noting that the Respondent conceded that
if the contract were interpreted to allow the Employer to hire
only a union member would render it unlawful under the Act,
the arbitrator gave effect to the maxim that “a contract interpre-
tation is preferred that would make an agreement valid over one
that makes it unlawful.” Applying that maxim and analyzing
the language of section 5, the entire agreement, and its history,
the arbitrator found that, in order to render section 5 of the
agreement valid, it was necessary to construe the contract in a
way to permit the Employer to “select individuals for positions
of Foremen and Assistant Foremen who are not from the New
York Times collective bargaining unit represented by [Respon-
dent].”
On May 1, 2007, Employer’s counsel wrote a letter to the
Regional Director, informing her of the arbitrator’s decision—
“that The Times had the right to hire any individual as a press
room foreman, regardless of the candidate’s union or bargain-
ing unit status”—and notifying her that the Employer had de-
cided to withdraw the charge in this case.
Two days later, on May 3, 2007, the Regional Director is-
sued an order dismissing the charge and withdrawing the com-
plaint and notice of hearing, citing the Employer’s May 1 re-
quest that the charge be withdrawn. It is this determination that
the Respondent alleges warrants a grant of fees on its behalf.
2. Discussion and analysis
Under the Board’s Rules and Regulations applicable to
EAJA cases, an otherwise eligible respondent in an adversary
adjudication “who prevails in that proceeding” may recover
allowable fees and expenses connected with that proceeding.
Section 102.143(b). In this case, the General Counsel submits
that the Respondent is not eligible for fees because, when its
assets are aggregated with those of its parent and affiliates, its
net worth is greater than the threshold amount for eligibility.
The General Counsel also contends that, in any event, the Re-
spondent is not entitled to fees because the Respondent did not
prevail in the underlying proceeding and because the General
Counsel was substantially justified in bringing the case. The
Respondent disputes all of these allegations. If the General
Counsel succeeds on any of its contentions, the application
must be dismissed. For the reasons set forth below, I agree
with the position of the General Counsel on the first two issues.
I therefore grant the motion to dismiss the Respondent’s appli-
cation for fees.1

1 Even though the General Counsel contended, in the motion to dis-
miss, that the General Counsel was substantially justified in issuing the
complaint, neither of the General Counsel’s submissions specifically
discussed this issue and indeed the General Counsel reserved the right
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD446
The Respondent gave short shrift to the requirement, under
Section 102.143(c)(2) and (g) of the Board’s Rules, that it
prove that its net worth was under $7 million; that it employed
less than 500 employees; and that its assets and employees
should not be aggregated with its parent international union or
other affiliates. Its application simply made conclusory state-
ments to that effect. After my order to show cause, which spe-
cifically asked Respondent to address this issue, the Respon-
dent supplied an affidavit from its president stating that the
Respondent was completely independent from its parent; that it
received “no funds from the GCU and the IBT”; and that those
entities, with which the Respondent is affiliated, provide no
funds or administrative support to Respondent and do not par-
ticipate in Respondent’s grievance handling or negotiations.
Nor, according to the affidavit, does Respondent even consult
with those entities in negotiations or grievance handling. The
Respondent also attached its most recent LM-2 statement,
which clearly states that its net worth is under $7 million and
lists the salaries of several employees, which inferentially sup-
ports the contention that it has less than 500 employees. But no
other evidence was submitted with respect to the relationship
between Respondent and its parent and affiliates. Respondent’s
discussion of the aggregation issue is limited to a conclusory
paragraph that references the affidavit. The General Counsel
contends that Respondent’s submission on aggregation of net
worth is inadequate under Section 102.143(g) of the Board’s
Rules and applicable Board law. As the General Counsel
points out, affiliation is found and aggregation is appropriate
where one entity “directly or indirectly controls” another entity,
and the applicant bears the burden to show that control is lack-
ing and aggregation is inappropriate. See Teamsters Local 741
(A.B.F. Freight), 321 NLRB 886, 889, 893 (1996); and Pacific
Coast District Council (Foss Shipyard), 295 NLRB 156, 157
(1989).
I do not believe that the evidence submitted by the Respon-
dent meets its burden to show that it is not controlled by its
parent and affiliates. Respondent did not discuss the structure
of its parent and affiliates, their sources of income, or how they
relate to Respondent. The affidavit simply states what the par-
ent and affiliates do not do, but says nothing about what they do
do that makes them a parent or affiliate. Nor did Respondent
fully comply with the Board’s Rules in this matter. Section
102.147(f) of the Board’s Rules requires the submission of
sufficient information about the net worth not only of the appli-
cant, but also of the parent or affiliates, from which the Board
may make a determination of eligibility. Such information was
not provided about the parent or affiliates. The Respondent has
thus failed to provide sufficient information for me to deter-
mine whether it is controlled directly or indirectly by its parent
or affiliates. This is not a hypothetical requirement. In the
initial letter of June 10, 2005, requesting arbitration, Respon-
dent noted that among the candidates who should be considered

“to amplify in [an] answer” reasons why the General Counsel was
substantially justified in issuing the complaint. Accordingly, I do not
reach that issue here, although my discussion of the prevailing party
issue casts considerable doubt on the Respondent’s claim that the Gen-
eral Counsel was not substantially justified in issuing the complaint.
for the open positions were “100,000 potential candidates
within all of the GCIU affiliates nationwide.” Thus, in this
very case, Respondent was insisting on a position that would
open jobs for members of all unions affiliated with it through-
out the country. In these circumstances, I find that the Respon-
dent has not met its burden of proving that it is not directly or
indirectly controlled by its parent or affiliates for the purposes
of considering its assets and employees separately from those
other entities.
Even assuming, however, that Respondent is deemed not to
be controlled by its parent or affiliates, the Respondent would
not be entitled to fees and expenses because it did not prevail in
the underlying Board proceeding. The evidence submitted by
the General Counsel, which is not contested by the Respondent,
clearly shows that Respondent and its agents sought to force the
Employer to hire only union members for foreman positions.
Thus, in addition to the June letter seeking arbitration, Respon-
dent’s president made statements, including one to the member-
ship, suggesting that Respondent was seeking to fill foreman
positions with union members. That was the gravamen of the
complaint. Such conduct was unlawful. See New York Typo-
graphical Union (New York Times), 237 NLRB 1241, 1244
(1978), and cases there cited.
Nothing in the record shows that either the arbitrator or the
Regional Director ruled in a way that would make permissible
either the request for arbitration or the Respondent’s president’s
statements, insofar as to they sought to have the Employer dis-
criminate in favor of union membership. Although, in a subse-
quent letter and in its answer to the complaint, Respondent
sought to ameliorate its position in the arbitration and reframe
the issue as one addressed to requiring the Employer to hire
only unit members, its earlier attempts to have the Employer
discriminate in favor of union members were not somehow
expunged. Nor did it notify its members that it would not ad-
here to its earlier position. Indeed, in September 2005, after
Respondent’s second letter to the arbitrator ameliorating its
earlier position, Respondent’s president notified its membership
that it was insisting on forcing the Employer to fill the open
foremen positions with union members. And even at the arbi-
tration hearing, in November 2006, Respondent’s president
made statements that indicated he was still seeking to have the
Employer hire only union members. A clear disavowal of
unlawful conduct and a notification of such disavowal to the
Respondent’s membership would have been part of a Board
remedy for the unlawful conduct alleged in the complaint. But
nothing in the record shows that Respondent took these steps
that might have expunged the effects of its unlawful actions.
See Passavant Memorial Area Hospital, 237 NLRB 138
(1978).
When the Regional Director withdrew the complaint at the
request of the Employer, she did not—indeed, she could not—
approve the Respondent’s attempts to require the Employer to
hire only union members. Instead, she acknowledged what the
Employer properly viewed as an arbitration award that obviated
any further Board proceedings. The arbitrator interpreted the
contract contrary to the Respondent’s position in the arbitration
and in favor of the Employer’s position: The Employer was not
limited to hiring only unit members for the vacant foreman’s
NEW YORK NEWSPAPER PRINTING PRESSMEN’S UNION 2 (NEW YORK TIMES) 447
position. That interpretation not only avoided an unlawful
interpretation, but ruled out Respondent’s earlier insistence on
an unlawful interpretation: Since the Employer need not hire a
unit member, perforce, the Employer need not hire a union
member. Respondent did not win either the arbitration or the
underlying NLRB case, which, of course, never resulted in a
finding in favor of the Respondent on the merits. Thus, the
withdrawal of the complaint in no way reflected a “material
alteration of the legal relationship of the parties” to the benefit
of Respondent. Indeed, if anything, the relationship was altered
to the detriment of Respondent. Nor was there a “judicial im-
primatur on the change.” See Buckhannon Board. v. West Vir-
ginia Department of Health & Human Resources, 532 U.S.
598, 604–605 (2001).
Board law clearly supports the view that Respondent was not
a prevailing party. The withdrawal of a complaint allegation by
the Regional Director pursuant to a voluntary settlement does
not make the charged party a “prevailing party.” See Carthage
Heating Co., 273 NLRB 120 (1984). The withdrawal of the
complaint herein, pursuant to the parties’ agreement to submit
the matter to arbitration is similar in substance to the situation
in Carthage Heating. Contrary to Respondent, Shrewsbury
Motors, Inc., 281 NLRB 486, 487–488 (1986), does not support
its position. In that case, the Board distinguished Cartage
Heating because, when the Regional Director withdrew the
complaint, the charged party, the EAJA applicant, was “placed
in exactly the same position as if the complaint allegations had
been dismissed on their merits following a hearing.” This is
not the situation here, and the instant case is more akin to Car-
thage Heating than it is to Shrewsbury Motors.
It is difficult to discern from its submissions why Respon-
dent thinks that it prevailed before the Board. In its response to
the order to show cause, Respondent seems to contend that the
matter should have been litigated rather than to have been
withdrawn after a contract resolution that went against the Re-
spondent. That position is not only counterintuitive, but does
not address whether the Respondent prevailed. Nor did the
complaint force Respondent to go to arbitration, as Respondent
seems to contend. Indeed, the Regional Director acted only
after the Respondent sought arbitration to enforce an illegal
interpretation of the contract. The fact that the Respondent
eventually ameliorated its position and the arbitrator avoided
the illegal interpretation originally sought by Respondent does
not mean that the Respondent somehow prevailed either before
the arbitrator or the Board. For the Respondent to have pre-
vailed in the underlying proceeding, the Board would have to
have acknowledged that the complaint allegations that Respon-
dent sought to have the Employer hire only union members
were somehow without merit. That did not happen and I do not
understand Respondent to say that the Board did acknowledge
as much.
The Respondent concentrates on its position in the arbitra-
tion proceeding. But the complaint focuses on its position be-
fore the arbitration proceeding. Moreover, as indicated above,
even apart from the letter seeking arbitration, Respondent’s
president allegedly made statements that sought discrimination
by the Employer, based on union membership. Nothing in the
arbitration or anything else in the record of this case could even
arguably show that Respondent prevailed on that part of the
complaint. Respondent’s overall position—seeking to have the
Employer discriminate on the basis of union membership—
cannot be subdivided into discrete portions of the complaint for
EAJA purposes, one for the request for arbitration and the other
for statements by the Respondent’s president. Nor has Respon-
dent made that contention.
Indeed, even if one considers the request for arbitration in
isolation, Respondent is not a prevailing party. Contrary to
Respondent, the Supreme Court’s BE & K decision, cited
above, does not support its position. It is unclear whether
BE & K applies to arbitrations, which are agreed upon methods
of resolving disputes, but it clearly applies to completed law-
suits, which may, in certain circumstances, amount to unfair
labor practices. 536 U.S. at 530–531. The Court disagreed
with the Board’s position that a reasonably based lawsuit could
be an unfair labor practice simply because it was unsuccessful
or retaliatory. 536 U.S. at 534–537. But the complaint allega-
tion herein did not deal with a completed lawsuit or a com-
pleted arbitration as such; it dealt with an illegal interpretation
of the contract. Moreover, nothing in the BE & K decision
deals with the notion of a prevailing party. To the extent that
the Respondent claims that its position on contract interpreta-
tion before the arbitrator was benign or reasonable and thus that
his recognition of that position made it the prevailing party
before the arbitrator, it misses the point. Although the arbitra-
tor stated that Respondent’s ameliorated position—that fore-
men had to be selected from the “unit” rather than the “un-
ion”—was plausible, he clearly eschewed the unlawful inter-
pretation that spawned the complaint—that the foreman appli-
cants had to be union members.
Accordingly, it is ordered that the motion to dismiss is
granted.