The Setterlin Co.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 810 (N.L.R.B. 1987)

810 DECISIONS OF THE -NATIONAL LABOR RELATIONS BOARD
The Setterlin Company ` and Bricklayers Local Union
55 of the International Union of Bricklayers
and Allied ,` Craftsmen and Carpenters Capital
District Council of the United Brotherhood of
Carpenters and Joiners of America and Cement
Masons Local Union 536, Operative Plasterers'
and Cement Masons International ' Association
of the -United States and Canada and Laborers
Local Union
.
No. 433 , Laborers' International
Union of North America. Cases 9-CA-20915-
1(E), 9-CA-20915-2(E), 9-CA-20915-3(E),
and 9-CA-20915-4(E)
30 April 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 10 December '1986 Administrative Law
Judge William F. Jacobs issued the attached sup-
plemental decision. The General Counsel filed ex-
ceptions and a supporting brief, and the Setterlin
Company (the Applicant) filed an answering brief.
The National-Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the-judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.,
- ORDER
The,National Labor- Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Applicant, The Setterlin
Company, Columbus, Ohio, be awarded the sum of
$29,857.31, pursuant to its application for an award
under the Equal Access to Justice Act.
i In his supplemental decision , the judge states that the Respondent's
17 April 1985 Motion for Summary Judgment and the General Counsel's
response were sufficient to permit the Board to make a decision on the
merits at that point in time without the necessity of holding a hearing.
We disagree . Although in hindsight it is clear that the Respondent did
present all the relevant evidence to the Board in its Motion for Summary
Judgment, `the Board did not' know at that time that the General Counsel
would fail to produce at a hearing any additional evidence in support of
her position as alleged in her response
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 Stat 183 (1985),
did not alter but merely clarified the definition of "substantially Justified."
"Substantially - justified" means more than "mere reasonableness." H.R.
Conf. Rep. No. 99-120 at 9 (1985).
SUPPLEMENTAL DECISION
Equal Access to Justice Act '
WILLIAM F. JACOBS, Administrative Law Judge. My
decision in the above-cited consolidated cases issued' on
10 March 1986. No exceptions were filed. Thereafter, on
6 May 1986 the Board issued its final order adopting `the
conclusions and recommendations set forth in my deci-
sion. Pursuant to the Equal Access to Justice- Act
(EAJA), Public Law 96-481,'94 Stat. 2325 and Section
102.143 of 'the Board's Rules and Regulations, Respond-
ent on 22 May 1986 filed with the Board in Washington,
D.C. an application for fees and expenses with memoran-
dum and evidence in support thereof. On 23 May 1986
the Board referred this matter to me for appropriate
action. Subsequently, the General Counsel filed- an
answer to Respondent's application and Respondent filed
a reply, both with supporting memoranda. '
The application, answer; and reply raise the following
issues:
1. Whether the position of the General Counsel was
substantially justified in the underlying unfair labor prac-
tice proceeding.
2.' Whether Applicants' claim for 10.5 hours of legal
fees for David P. Hiller for 10 December 1985 is justified
in light of the fact that he appeared'on that date as wit-
ness for Respondent at the unfair labor practice trial and
did not make an appearance that date as legal, counsel on
Respondent's behalf.
The Substantial Justification Issue
On 18 May 19841 the charges in the instant case were
filed. Shortly thereafter the Region undertook a thor-
ough investigation of the charges. On 25 May Respond-
ent, through its attorney,' David P. Hiller, provided the
Region with a statement of position that was accompa-
nied by documentary evidence 'supporting its position.
The statement of position traced the history of bargain-
ing between the parties dating back to the date of Re-
spondent's withdrawal of 'its bargaining rights from the
AGC. The supporting documentary evidence consisted
of, for the most part, letters between the parties that re-
flected the record of bargaining or attempted bargaining.
The evidence that I relied on in determining that the
complaint lacked merit was congruent with the facts and
documentary evidence supplied to the Region by Re-
spondent prior to complaint. On 29_May'the Region fol-
lowed up Respondent's evidentiary submission with an
interview of Robert L. Jones, executive secretary of Car-
penters' District Council from whom an affidavit was ob-
tained. In his affidavit, Jones- described the sequence of
events that transpired during the bargaining period and
thereafter. The substance of Jones' affidavit was factually
in total agreement with the facts as presented by Re-
spondent in its 25 May documented statement of posi-
tion. A comparison of the two positions gave rise to no
factual discrepancies warranting credibility findings. The
facts discovered by the Region during its investigation
i Hereafter all dates are 1984 unless otherwise indicated.
283 NLRB No. 129
SETTERLIN CO.
are the same as those on which I later rendered my deci-
sion.
On 6 July the Regional Director issued the following
document in which he refused to issue complaint:
Gentlemen:
The 'above-captioned case charging a violation
under Section 8 of the National Labor Relations
Act, as amended , has been carefully investigated
and considered.
The investigation does not support the allegations
of the charges that the Employer failed to bargain
with the Union in violation of the Act as charged.
The evidence disclosed that representatives of the
Employer met with representatives of the four
Charging Party-Unions on several occasions during
April and May of 1984. In addition, the Employer
met jointly with all the Unions on April 30, 1984.
On May 11, 1984, the Employer gave the employ-
ees a "Status Report" in which it set forth its own
bargaining proposals . Moreover, the Employer
stated it would continue to work during a strike and
that although employees might be subject to fines
or membership suspension if they worked during a
strike, they had a right to work and the decision
was up to them . It was concluded that the report
was not unlawful but was encompassed by free
speech provisions of Section 8(c) of the Act. More-
over,- it did not constitute direct dealing or bargain-
ing with the employees with an object of unlawful-
ly undermining the Unions ' bargaining status. Final-
ly, it was concluded that the parties had reached an
impasse on June 1 , 1984 when the Employer imple-
mented its fringe benefit proposals which it had ear-
lier offered to- the Unions and to which they had
not objected . The implementation by the Employer
of its last offer, therefore, did not violate Section
8(a)(5) of the Act. See E.I. DuPont & Co., 268
NLRB 1075 (1984), and Taft Broadcasting Co.., 163
NLRB 475, 478 (1967).
Under these circumstances , it was concluded that
further proceedings in this matter were not warrant-
ed and I am refusing to issue a complaint.
Subsequent to the Regional Director's refusal to issue
complaint , Charging Parties appealed. On 21 December
the Office of Appeals sustained the appeal stating:
Dear Mr. Goodman:
Your appeal from the Regional Director's refusal
to issue complaint in the above-referenced case has
been fully considered.
The appeal is sustained. It was concluded that the
Employer's cessation of fringe benefits payments
and check-off and its presentation of a bargaining
offer directly to employees raised Section 8(a)(1)
and (5) issues warranting Board determination based
on record testimony developed at a hearing before
an Administrative Law Judge.
Accordingly, the case is remanded to the Region-
al Director with instructions to issue an appropriate
8(a)(1) and (5) complaint, absent settlement . All fur-
811
ther inquirils should be addressed to the Regional
Director.
This letter , couched in the usual boilerplate language, of-
fered no explanation as to precisely what Section 8(a)(1)
and (5) issues remained that might warrant the taking of
testimony at a hearing.
On 4 January 19852 Respondent , through its attorney,
filed with the Office of Appeals a motion for reconsider-
ation . Accompanying the motion was a 26 -page position
statement covering the entire course of bargaining , citing
appropriate cases and distinguishing cases cited by the
Charging Parties from the factual circumstances involved
in the instant case . Attached to the motion was the rele-
vant correspondence that had passed between the parties
the previous spring and since . Respondent placed before
the Office of Appeals its entire case . Virtually everything
that it eventually put into the record at the hearing Re-
spondent offered to the Office of Appeals for its consid-
eration in order to avoid having to go to hearing. On 18
January the Office of Appeals sent the following letter to
Respondent's attorney:
Dear Mr. Hiller:
This is in response to your Motion for Reconsid-
eration dated January 3 , 1985 and supplemental
letter dated January 9, 1985 , requesting ' oral argu-
ment and reconsideration of our decision on De-
cember 21 , 1984 sustaining the Charging Parties'
appeal.
We have carefully received the evidence present-
ed and adduced in the instant matter in light of the
contentions raised in your motion and have con-
cluded that no basis exists for a departure from our
initial determination . Accordingly , the motion is
denied.
Again, the Office of Appeals failed to explain to Re-
spondent why a hearing was necessary or what issues re-
mained to be litigated.
On 6 March, the Region, having been given no other
choice by the Office of Appeals, issued complaint despite
the fact that it had in its files the entire case ; the undis-
puted facts , relevant documents, and case citations con-
taining many of the legal findings on which dismissal of
the complaint eventually issued. The complaint con-
tained among its allegations paragraphs 10(a), (b), and
(c):
10. (a) On or about May 10, 1984, Respondent
ceased making payments on behalf of employees to
the respective health and welfare plans and pension
funds provided for in the collective-bargaining
agreements to which Respondent was a party with
the Bricklayers, Carpenters, Cement Masons and
Laborers as described above in paragraphs 6(a),
7(a), 8(a) and 9(a), respectively.
(b) About May 23 , 1984, Respondent imiplement-
ed its own health and , welfare benefits through a
plan with Builders Exchange and Phoenix Mutual
2 Hereafter all dates are in 1985 unless otherwise indicated.
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
'Life and its own pension benefits through the Set-
terlin Company Pension Plan.
(c) Respondent engaged in the acts and conduct
described above in paragraphs 10(a) and (b) without
having afforded the Bricklayers, Carpenters,
Cement Masons and/or Laborers an opportunity to
negotiate and bargain as the exclusive representative
of Respondent's employees with respect to such
acts and conduct and the effects thereof.
At the time the complaint issued the Region had- in its
possession documentary proof, supplied to it by Re-
spondent's counsel months before, that the allegations
were untrue. Indeed, in - an affidavit supplied to the
Region on 29 -May 1984 the executive secretary of the
Carpenters stateds that he did not know whether the Re-
spondent had implemented the new health and welfare
benefit program as of that date. Seven months later when
on 22 October 1985 the Region issued its amended con-
solidated complaint the errors contained, in the above-
quoted paragraphs remained unchanged and were not
corrected until the day of the hearing. On 20 March Re-
spondent filed its answer denying the commission of any
unfair labor practices and proffering affirmative defenses
to the allegations identical to those eventually, pursued at
the hearing.
On 17 April Respondent filed a Motion for Summary
Judgment with a 32-page memorandum in support there-
of. In, its memorandum Respondent once again reiterated
the entire history of bargaining between the parties and
argued that there were no factual issues in dispute that
warranted a hearing. Attached to the memorandum were
various supporting, documents most of which were even-
tually offered and received by stipulation into the record
at the hearing. In addition to a resume of the factual his-
tory, Respondent included in its memorandum argument
and case law. Several of the cases cited were ones on
which I relied in my decision dismissing the complaint.
- On 23 April the Associate Executive Secretary of the
Board issued an order transferring proceeding to the
Board and Notice to Show Cause. On 7 May the Gener-
al Counsel filed a response to the Notice to Show Cause
and Opposition to Respondent's Motion for Summary
Judgment. In the response the General Counsel request-
ed: "that Respondent's Motion for Summary Judgment
be_ denied because it raises factual matters which require
development and resolution at a hearing and because the
legal basis for Respondent's motion is not supported by
Board law or policy." After declaring these reasons as to
why a hearing was necessary, the General Counsel laid
out the facts that were expected to be adduced at the
hearing. The description of facts included in the re-
sponse, however, though perfectly true in its coverage,
totally failed to indicate or give consideration to Re-
spondent's fully documented fears and reasons for taking
the action it had. But this fact is of small consequence
because Respondent had already placed on record the
bases on which it had acted and this was well known to
the' Board through the contents of the file. Thus, the
General Counsel's response was sufficient, along with the
3 Par. 18.
information made available to the Board by Respondent,
to permit the Board to make a decision on the merits
(i.e., the facts), without the necessity of holding 'a hear-
ing.
Insofar as the legal argument is concerned, the Gener-
al Counsel, in her Response, argued that- Respondent's
position is not supported by Board law or policy. The
General Counsel, in her Response, conceded "that many
of the facts in this case are undisputed and are clearly es-
tablished by contemporaneous documentary, evidence."
She argued, however, that "Respondent has totally disre-
garded and failed to address . . . the unfair labor prac-
tice strike issue."
But the position of the General Counsel 'on this point
is untenable because if the record- is clear that there are
no unfair labor -practices, then the issue of whether or
not the strike that subsequently occurred is ' an unfair
labor practice strike never evolves as an issue . Though
the General Counsel's response offers a number of argu-
ments why Respondent' s actions should be considered
violative of the Act, it does not adequately present the
clearly defined reasons why Respondent took the action
it' did. The problem of assent was the key issue -in the
case and the, General Counsel, although -she mentioned it
briefly, did not adequately address the subject despite the
fact that her files contained -all of the correspondence en-
abling her to do so.
On 13 May Respondent filed a 17-page reply memo-
randum in which Respondent once again thoroughly re-
viewed the entire history of the case, presenting all of
the facts none of which were in dispute, and pointing out
the' General Counsel's failure to address" the assent issue
as well as the failure of the Charging Parties to request
bargaining about the health and welfare and pension im-
plementation, issues . Also, Respondent pointed out that
on 17 May and again on 29 May' it had written to the
Charging 'Parties advising them that the changes in the
health and welfare "and, pension plans had not yet been
implemented and that Respondent was still -willing to ne-
gotiate the subject matter. -
On 30 September the Board issued an Order Denying
Motion and Remanding Proceeding to Regional Direc-
tor. The Order contained no explanation' or reasons why
the motion was denied.
On 22 October the Region issued an order consolidat-
ing cases, amended consolidated complaint and order re-
scheduling hearing. On I November Respondent filed its
answer, which included the following affirmative de-
fenses:
FIRST AFFIRMATIVE DEFENSE
16. Both before and_ after the unfair labor prac-
tices charges were filed by charging parties, as well
as before, Respondent implemented its proposals
with respect to fringe benefits, Respondent offered
charging parties the opportunity to bargain with
regard to Respondent's proposals. -
17. Despite the opportunity to bargain afforded
by Respondent, the charging parties neither request-
ed bargaining nor pursued their bargaining opportu-
nities.
SETTERLIN CO.
18. The charges and the allegations of the com-
plaint are therefore barred by the doctrines of
waiver, acquiescence and estoppel.
SECOND AFFIRMATIVE DEFENSE
19. Respondent 's Status Report of May 11, 1984
was a protected , communication, encompassed by
the free speech provisions of Section 8(a) of the
Act.
WHEREFORE , Respondent demands that the
amended complaint be dismissed , in its entirety, and
that Respondent be awarded its costs and expenses
herein, including reasonable attorney fees.
Even a cursory inspection of the Region's file in this
case would reveal that the allegations contained in the
complaint were unsupported by the contents of the file
and that the affirmative defenses were wholly supported
by the evidence. Moreover ,, 'analysis of the Regional file
at the time, , of issuance of complaint would reveal no fac-
tual issues subject to' credibility determinations . Finally,
contained in the Regional file were copies of all of the
documents filed by Respondent either with the Region
or with the Board . These documents contain many of the
case citations that when applied to the facts as reflected
by the documentary evidence should have led to the
conclusion that complaint should not have issued.
I find that complaint should never have issued in this
case, that the General Counsel 's position was not sub-
stantially justified , and therefore shall recommend that a
proper EAJA award be made to the applicant in the
amount of $29,857.31.4
" This amount represents the $30 ,644.81 claimed (390.25 attorney hours
at $75 per hour equals $29,268.75 and expenses in the amount of
813
CONCLUSIONS OF LAW
1. The applicant is a prevailing party with respect to
the amended consolidated complaint and meets the eligi-
bility standards set forth in, the Equal Access to Justice
Act.
2. The General Counsel has failed to establish that the
issuance of the consolidated complaint or the amended
consolidated complaint and their , continued prosecution
were substantially justified.
3. The applicant is entitled to be reimbursed for rea-
sonable attorney's fees and expenses incurred in connec-
tion with the underlying unfair labor practice proceeding
and the fee application as set forth above.
On the foregoing findings of fact, conclusions of law,
and the record in this case , pursuant to Sec. 102.153, I
issue the following recommended"
ORDER
Applicant, The Setterlin Company, shall be awarded
$29,857.31 pursuant to its application under the Equal
Access to Justice Act.
$1376.06) minus $787.50 (10.5 attorney hours at $75 per hour) claimed for
work done on 10 December 1985 for "ULP trial before Judge: Jacobs" by
David Hiller . Hiller did not make an appearance on that date and ap-
peared only as a witness.
5 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions , and recommended Order herein shall, as provided in
Sec. 103.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.