SME Cement, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 763 (N.L.R.B. 1983)

SME CEMENT, INC.
SME Cement, Inc. and David Crowder and Robert
G. Meadows. Cases 8-CA-15577(E) and 8-
CA- 15577-2(E)
26 August 1983
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
On 28 March 1983 Administrative Law Judge
William A. Gershuny issued the attached Decision
in this proceeding. Thereafter, the Applicant, SME
Cement, Inc., filed exceptions and a supporting
brief, and the General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
I The Administrative Law Judge correctly stated, citing Enerhaul.
Inc., 263 NLRB 890 (1982). that, in actions to collect attorneys fees and
expenses pursuant to the Equal Access to Justice Act, if the General
Counsel's position in the underlying case was substantially justified, it is
immaterial that the General Counsel may not have established a prima
facie case of a violation. We note, however, that for the General Coun-
sel's position to be substantially justified within the meaning of Sec.
102.144(a) of the Board's Rules and Regulations, Series 8, as amended,
the General Counsel must present evidence which, if credited by the fact-
finder, would constitute a prima facie case of unlawful conduct by the
respondent.
In this case, if the Administrative Law Judge had credited the testimo-
ny of Bill Crowder, he could have concluded that Crowder and his
fellow employees had indicated to Respondent that they only refused to
work overtime for one weekend, and therefore were not engaged in a
partial or intermittent strike. Thus, the General Counsel would have es-
tablished a prima facie case that Respondent's discharge of the employees
violated the Act. Polytech. Inc., 195 NLRB 695 (1972); First National
Bank of Omaha, 171 NLRB 1145 (1968), enfd. 413 F.2d 921 (8th Cir.
1969). Additionally, if the Administrative Law Judge had credited testi-
mony indicating that Respondent's president, Carlow, had stated that he
planned to discharge Robert Meadows, Jr., because of his union activi-
ties, there would have been a prima facie case that Respondent's failure to
recall Meadows from layoff was unlawful Accordingly, we agree with
ORDER
It is hereby ordered that the application of the
Applicant, SME Cement, Inc., Middlebranch,
Ohio, for an award under the Equal Access to Jus-
tice Act be, and it hereby is, dismissed.
the Administrative Law Judge that the General Counsel's position with
respect to both of these issues was substantially justified.
DECISION AND ORDER
Applicant, pursuant to the Equal Access to Justice
Act, 5 U.S.C. 504, and the Board's implementing regula-
tions, 29 CFR Part 102, seeks $15,611 in fees and ex-
penses for its defense of unfair labor practice complaints
alleging the unlawful discharge of four employees and
the failure to recall another. After 2 days of hearing, a
decision was issued on January 7, 1983, dismissing each
of the complaints. No exceptions were filed and, by
Order of the Board dated February 8, 1983, the recom-
mendated Order of Dismissal became final.
Counsel for the General Counsel has moved to dismiss
essentially on two grounds: one, that the applicant re-
veals a net worth in excess of $5 million; the other that
General Counsel's position throughout was substantially
justified.
The financial statement reflects a negative net worth in
excess of $5 million, using the accepted accounting prac-
tice of indicating a negative value through the use of pa-
rentheses.
As to the second ground, however, the motion is well
founded. Each of the cases turned ultimately on credibil-
ity issues, properly submitted by the General Counsel to
an administrative law judge for determination. Even
where, as here, there is a fundamental conflict in the tes-
timony of the General Counsel's witnesses, it is uniquely
the function of the factfinder, and not the General Coun-
sel, to resolve those conflicts. Once that conflict was re-
solved, the cases came to an end. Where, as here, the
General Counsel's position was substantially justified, it
is immaterial that a prima facie case may not have been
established. Enerhaul. Inc., 263 NLRB 890 (1982).
It is therefore ordered that the Application for fees
and expenses be, and the same hereby is, dismissed.
267 NLRB No. 129
763