Trans Tech Electric, Inc

National Labor Relations Board - Board Decisions

Apr 19, 1989

293 N.L.R.B. 711 (N.L.R.B. 1989)

TRANS TECH ELECTRIC
Trans Tech Electric , Inc and Ralph H Lingo Case
25-CA-16412(E)
April 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 5, 1989, Administrative Law Judge
James J O'Meara Jr issued the attached supple-
mental decision The Applicant filed exceptions
and a supporting beef, and the General Counsel
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, i and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the application of the Ap-
plicant, Trans Tech Electric, Inc, South Bend, In
' In agreeing with the judge s findings that the General Counsel was
substantially justified in seeking backpay for discnmmatee Lingo for both
the Angola and LaGrange projects we note that the Board s Decision
and Order in this case did not limit the backpay due to the Angola
project Trans Tech Electric 274 NLRB 632 (1985) Accordingly the
Board did not foreclose the possibility that backpay was due for the La
Grange project
Further the Board s finding in the underlying case that there was no
evidence that the Union referred Lingo to the LaGrange project did not
preclude the General Counsel from seeking backpay for that project if it
could be established that Lingo could have worked at LaGrange in the
absence of a referral In this regard we note that the parties agreed
during the backpay proceedings that when an employee is laid off from a
project for less than a week the Employer can bring him back to that
project or transfer him to another project without going through the
Union for a referral The dispositive issue is therefore whether the Gen
eral Counsel was substantially justified in contending that Lingo would
have been transferred from Angola to LaGrange in light of the nearly 3
month period between his discriminatory layoff at Angola and the Appli
cant s first request for a referral to the LaGrange project The General
Counsel argued in the backpay proceedings that a comparison of the
work at the two projects indicated that the Applicant would have re
quired a second worker at the early stages of LaGrange in addition to its
permanent employee but that the Applicant purposely altered its work
procedures to utilize only one employee so as to avoid transferring Lingo
to the second position Given the Applicant s apparent willingness to un
derman the Angola project pursuant to Lingo s discriminatory layoff and
Lingo s testimony that he was told by the Applicant s supervisor at
Angola that he might be used on the LaGrange project id at 636 we
conclude that the General Counsel was substantially justified in contend
ing that Lingo would have been transferred to LaGrange in the absence
of his discriminatory layoff The General Counsel s failure to so convince
the Board does not preclude a finding of substantial justification Shell
maker Inc 267 NLRB 20 (1983)
In adopting the judges decision we do not rely on Haberman Con
struction Co 236 NLRB 79 (1978) enf denied in part 641 F 2d 351 (5th
Cir 1981) Instead we rely on Dean General Contractors 285 NLRB 573
(1987) for the proposition that the question of whether backpay is due a
discnmmatee for additional projects as in this case is appropriately re
solved during the compliance process
711
diana , for attorney's fees and expenses under the
Equal Access to Justice Act is denied
Ralph R Tremain Esq and Cornele A Overstreet Esq
for the General Counsel
S Douglas Triolson Esq (Lowe Gray Steele & Hoffman),
for the Respondent
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
JAMES J 0 MEARA JR, Administrative Law Judge
On 28 February 1985 the Board issued its Decision and
Order in this case Basically affirming Administrative
Law Judge William A Pope II, the Board found that
Respondent Trans Tech Electric Inc had violated Sec
tion 8(a)(1) and (3) of the National Labor Relations Act
by laying off its employee Ralph H Lingo The Board
ordered Respondent to offer Lingo immediate and full
reinstatement to his former job or, if that job no longer
existed, to a substantially equivalent position The Board
also ordered that Lingo be made whole for any loss of
earnings he might have suffered and that records of his
unlawful layoff be removed from Respondents files
Following the Board s Order, the parties were unable
to agree on the amount of backpay owed Lingo The Re
gional Director for Region 25 thereupon issued a back
pay specification and on 9 June 1987, I issued a supple
mental decision finding Ralph Lingo to be entitled to
backpay in the sum of $4 392 36 together with welfare
and pension payments with appropriate interest for the
first three quarters of 1984 Respondent filed exceptions
to my supplemental decision
On 16 December 1987 the Board issued its Supplemen
tal Decision and Order The Board reduced the amount
owed Lingo to $415 20 net backpay plus interest and di
rected Respondent to pay $30 to the welfare plan and
$21 60 to the pension plan plus interest
On 14 January 1988 the Respondent filed with the
Board in Washington, D C an application for fees and
expenses pursuant to the Equal Access to Justice Act,
Pub L 96-481 94 Stat 2325 and Section 102 143 of the
Board s Rules and Regulations On 19 January 1988 pur
suant to Section 102 148(b) of the Board s Rules and
Regulations the Board, through its Deputy Executive
Secretary ordered that Respondents application be re
ferred to the administrative law judge for appropriate
action
On 18 February 1988 counsel for the General Court
sell' filed with the chief administrative law judge a
motion to dismiss application for attorney s fees and ex
penses under the Equal Access to Justice Act
' Hereafter designated as the General Counsel
293 NLRB No 86
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I CONTENTIONS OF THE PARTIES
A Respondent
Respondent notes that the complaint in the underlying
C case issued in June 1984 Prior to the issuance of the
complaint, Respondent asserts that it made numerous
and substantial efforts' to settle the case The issue that
divided the parties was the amount of backpay owed
Charging Party Ralph Lingo That issue arose in the fol
lowing way Respondent is a construction industry em
ployer At the time of his discriminatory layoff, Lingo
was working at Respondents Angola project Respond
ent offered backpay based exclusively on Lingo s Angola
employment The General Counsel took a broader view
of the matter In his opinion, Lingo was due backpay not
only for the Angola project but also for a LaGrange
project2 to which the General Counsel insisted Lingo
would have been referred in the normal course of events
The difference was not small Restricting backpay to the
Angola project implied some $466 80 total liability,3
based on work at both Angola and LaGrange, I found
backpay to exceed $4,392 36 in my supplemental backpay
decision of 9 June 1987 The General Counsel does not
essentially dispute these facts See the General Counsel s
motion to dismiss, page 6 No settlement agreement was
had and the parties proceeded to litigation
When the Board issued its 28 February 1985 decision
on the underlying merits of the controversy, it made no
explicit finding concerning the length of Lingo s backpay
period The remedial portions of its Order and its notice
contained the conventional direction that Lingo be made
whole for any loss of earnings and other benefits suf
fered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision 4
Respondent draws attention to the fact that In revers
ing an evidentiary finding of the Administrative Law
Judge the Board found that there was no evidence that
Lingo had ever been referred to the LaGrange project
and that the Respondents failure to employ him there
was consistent with its contractual obligations (Re
spondent s application p 2, par 4) Respondent's refer
ence is to 274 NLRB 632 and a portion of footnote 1 of
that decision
We do not rely on the judges statement in the
first sentence of fn 9 deeming it suspicious that
the Respondent did not offer employee Lingo a job
at LaGrange after it laid him off from the Angola
project Art III of the parties collective bargaining
agreement states that the Union is the sole and ex
clusive source of referral of applicants for employ
ment ' With limited exceptions not relevant here
employers covered by the agreement are prohibited
from directly hiring employees without first re
questing and obtaining a referral from the Union
2 Both these projects lay within the jurisdiction of Local 305 of the
IBEW whose hiring hall was their basic source of labor and to which
Lingo belonged
2 Based on the Board s 16 December 1987 supplemental decision
4 Trans Tech Electric 274 NLRB 632 (1985)
As there is no evidence the Union referred Lingo
for the LaGrange project, the Respondents failure
to offer him a job there was entirely consistent with
its obligations under the contract The judge s reli
ance on such conduct as evidence of the Respond
ent's discriminatory motive was therefore in error
Judge Popes footnote 9 to which the Board refers
states
But, it is suspicious that Martell chose to lay off
Lingo, assuming that he was no longer needed on
the Angola project, rather than offer him employ
ment on the LaGrange project, upon which work
was starting, and for which other Local Union 305
members were hired Possibly bearing on Respond
ent s decision not to continue to employ Lingo was
receipt of notification on March 10 from Local
Union 305 designating Lingo as steward on the La
Grange project, although it must also be said here
that while Lingo was not laid off until March 13
Respondent contends that the decision to lay him
off was actually made prior to March 10
The General Counsel continued to claim in the back
pay proceeding following the Board s initial determina
tion in the case that Lingo was entitled to backpay for
the LaGrange project In the interim, on 17 December
1985, the General Counsel petitioned the Circuit Court
of Appeals for the Seventh Circuit for enforcement of
the Board s Order on the ground that Respondent re
fused to pay full backpay Respondent petitioned for and
obtained a stay of the enforcement proceeding on 25
April 1986
As the Board has now issued its supplemental decision
on 16 December 1987 in the backpay case at 287 NLRB
623, Respondent notes that the Board has ruled that
Lingo is not entitled to backpay for the LaGrange
project In so doing the Board relied on its finding in its
original Decision and Order that there was no evidence
that Lingo was ever referred to the LaGrange project
and that Respondents failure to employ him there was
consistent with its contractual obligation (Application
p 3, par 8 )
Respondent contends that the General Counsel was
without substantial justification ab initio on the La
Grange contention and, further the General Counsel s
continued insistence on the LaGrange position in the
backpay portion of the case was also without substantial
justification (See application p 3 par 9) Respondent
seeks a total of $14,722 42 in legal fees and expenses for
having been (as it sees) forced into this multiple litiga
tion
The remainder of the application consists of itemized
legal bills and two balance sheets of Respondents dated
29 February 1984 and 28 February 1986 The balance
sheets reflect a net worth of less than $7 million on both
dates Respondent asserts at application page 4 para
graph 11, that it employed 25 employees in 1984 as its
South Bend Indiana location 70 in 1986, and, currently
80 employees
TRANS TECH ELECTRIC
B The General Counsel
The General Counsel claims first that Respondent has
not shown its eligibility for an award under EAJA
Noting that Respondents application fails to state wheth
er there are affiliates and subsidiaries of the Respondent,
the General Counsel relies on Section 102 147(f) of the
Board's Rules and Regulations that requires that an ap
plication for fees include a detailed statement of the net
worth of the applicant and any affiliates as of the time
when the adversary adjudicative proceeding was initiat
ed The General Counsel refers to Section 102 143(g)
that provides that the net worth and number of employ
ees of the applicant and all affiliates shall be aggregated
to determine eligibility The General Counsel points to
no evidence of hidden affiliates, his argument simply
states if there are no affiliates that fact must be stated in
order to evaluate eligibility for an award
The General Counsel next contends that attorney's
fees in excess of $75 per hour are not recoverable Re
spondent s account of its legal costs reflects a number of
instances in which sums in excess of $75 per hour are re
quested
In his third argument the General Counsel contends
that the application fails fully to document the requested
fees and expenses
Finally, the General Counsel contends that his back
pay position in the underlying unfair labor practice and
at the backpay hearing was substantially justified
II CONCLUSIONS
Respondents application, page 3, paragraph 9, states
that
General Counsels position throughout this proceed
ing that Lingo was entitled to backpay for the La
Grange project was without substantial justification
Respondent further contends that the General
Counsels continued insistence on backpay for the
LaGrange project in the face of the Board s specific
finding in its original Decision and Order is without
substantial justification
I interpret this portion of the application as a twofold re
quest made in the alternative The first is a request for
fees and expenses dating from the conclusion of the in
vestigation in the underlying C case and the start of the
settlement negotiations between the General Counsel and
Respondent to the end of the proceeding Respondent
impliedly takes the position that had its initial settlement
proposal been accepted, there would have been no subse
quent litigation The second is a request that dates from
the start of the compliance procedures in the underlying
C case to the end of the proceeding Respondent's ac
count of fees and expenses attached to its application
does not set out any fees for preparation of its EAJA re
quest nor does the application itself request such fees and
expenses
For the reasons set out below, I find that the General
Counsel was substantially justified at all stages of this
proceeding-the settlement negotiations prior to litiga
tion of the underlying C case and the compliance stage
negotiation and litigation-in his position that Lingo was
713
due backpay for both the Angola and LaGrange
projects 5
When negotiations for a settlement agreement com
menced, the General Counsel was in possession of evi
dence that, if believed, established that Lingo was dis
missed from the Angola project in violation of Section
8(a)(1) and (3) of the Act This evidence was of such
force and effect as to convince Administrative Law
Judge Pope and the Board at 274 NLRB 632 that a vio
lation had occurred The immediate question between
the parties, then was the extent of Lingo's backpay
remedy was it to be only for work on the Angola
project or should it be extended to work on the La
Grange project as well9 The relative amounts of backpay
involved (as seen by the General Counsel) were in about
the ratio of 22 to 1 Angola eventually yielded $466 80
while in the General Counsel's view an additional
amount of $10,400 was due from work at LaGrange that
the General Counsel contended Lingo would have
earned absent the discrimination against him As the
General Counsel comments in his motion to dismiss
(using the figures found by the Board and myself in the
supplemental decision)
It cannot be gainsaid that the difference between
the two figures is sufficient to make a decision not
to accept the former [$466 80] as a compromise of
the latter [$4 392 36], prima facie reasonable and that
thus the real question becomes the reasonableness of
the General Counsel seeking the higher figure [See
motion to dismiss, p 6 ]
I would disagree with the quoted language only to the
extent of saying that the real question is whether the
General Counsel was substantially justified on the basis
of evidence then known to him in seeking the higher
figure Substantial justification here must turn on the
nature of the evidence and reasonable inferences avail
able to the General Counsel to show that Lingo would
have, in the normal course of events, worked on the La
Grange project
The evidence and the inferences would at this stage of
proceeding, appear to have consisted of the following
(1) There was evidence that Respondents supervisor
Blosser, prior to the activity that triggered Lingo s dis
charge, commented that Lingo might likely be trans
ferred to the LaGrange project According to the Gener
al Counsel, this evidence appeared at page 74 of the tran
script of the underlying C case hearing It is mentioned
in passing by Judge Pope at 274 NLRB 632, 636
(2) Respondent, following Lingo s discriminatory dis
charge demonstrated a marked willingness to underman
the Angola project as part of a scheme to avoid recalling
Lingo This was done even at the risk of a $500 per day
penalty for every day the job went past its completion
date Respondent was as much as 2 months behind
schedule This evidence was presented by the General
Counsel in the underlying C case and is favorably com
5 In view of this finding I find it unnecessary to discuss the General
Counsels other asserted reasons for dismissing Respondents application
in toto or limiting the requested award of fees and expenses
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mented on by Judge Pope at 274 NLRB 632, 636 Grant
ed that Respondent would take such risks at Angola be
cause of its animus against Lingo ,6 it might well have
undermanned the LaGrange project for the same reason
I note that the LaGrange project started about 8 March
with but a single employee That state of affairs contin
ued until early June when a referral was requested from
Local 305 ° The General Counsel argues that if Angola
and LaGrange paralleled one another, LaGrange, as
Angola, would have needed at least two employees fol
lowing the 29 March completion of Angola See motion
to dismiss, page 7 Unlike Angola which first required a
single employee (Blosser) for about a month, LaGrange
retained single employee status for 2 months , i e , until
early June 8 There appears to be no evidence as regards
the different natures of the Angola and LaGrange
projects that would explain the manning differences out
lined above In light of the discrimination practiced
against Lingo, the General Counsel might well have
questioned the different manning patterns between the
two projects 9
(3) Respondent demonstrated a willingness to transfer
employees from Angola to LaGrange Thus, its supervi
sor, Blosser (and employee Steffan for a few days in
March), went to LaGrange to begin work
(4) On 9 March, the Union objected to the use of non
local individual Blosser on two jobs (Angola and La
Grange) within its jurisdiction Respondent might have
used local employee Lingo for that purpose to avoid the
conflict with the Union were it not for the discriminato
ry discharge Instead , Martell rejected the Union s coin
plaint in toto in his 12 March letter but, however trans
ferred in another outside employee to placate the
Union 10 (G C Exh 3 backpay hearing )
Based on the above, the General Counsel concluded
that had Lingo not been discriminatorily discharged in
early March he would have, in all likelihood, transferred
to LaGrange on the 29 March conclusion of the work at
Angola Accordingly the General Counsel felt himself
unable to accept the smaller sum of backpay proffered
by Respondent I find this position to be substantially
justified for a least two reasons First, whatever ambigui
ty attached to Lingo's potential transfer to LaGrange
was at least partially attributable to Respondents dis
criminatory discharge of him in early March The
burden of proof in such backpay matters falls on Re
spondent Atlantic Marine, 211 NLRB 230 (1974) Al
though I do not find that Respondent would have neces
sanly been unequal to that burden there is no real evi
dence that it carried the burden during the precomplaint
settlement negotiations We have here a litigable differ
ence of opinion on the extent of the remedy Second, the
6 It would have been difficult to hire another employee to replace
Lingo at Angola because Respondents asserted reason for letting him go
amounted to a claim of lack of work
' Trans Tech Electric 287 NLRB 623 (1987)
8 That Steffan may have been there for several days in March does not
vitiate the argument See 287 NLRB 624 at fn 6
8 The manning differences must be considered in light of the ,orre
spondence between Business Agent Smith and Respondent s official Mar
tell infra
10 Presumably either a local man (Lingo ) or a separate outside man
would have met the Union s objection
General Counsel would have had before him Haberman
Construction Co 236 NLRB 79 (1978) In Haberman (ad
mittedly not a hiring hall situation)" i the Board reversed
its administrative law judge and found there to be at
least a possibility that discnminatees in a construction
context might have been hired on later projects of the
Respondent Accordingly, it directed that the backpay
remedy take this possibility into account Significantly,
the Board took this step although describing the record
evidence on this issue as not conclusive 236 NLRB
79 fn 3 The General Counsel here was dealing not with
unrelated serial projects but near simultaneous projects
that were part of an overall scheme of improvements
The Board has interpreted the substantial justification
standard, as the General Counsel contends, in such a
way as not to interfere with the General Counsels vigor
ous enforcement of the Nation s labor laws Wyandotte
Savings Bank v NLRB, 682 F 2d 119, 120 (6th Cir 1982),
Shellmaker Inc, 267 NLRB 20 (1983) The General
Counsels ultimate failure to prevail, as here, raises no
presumption that he was not substantially justified in
pressing his position Wyandotte Savings Bank, supra
Turning to the litigation in the underlying C case, I
find no indication in the Board s and judge's decisions
that the remedial question of Lingo's backpay period,
i e, whether he would have gone to the LaGrange
project, was litigated per se, i 2 The question therefore
becomes the substantial justification of the General
Counsels position on the LaGrange matter in the back
pay proceeding Substantial justification there must, in
turn, be viewed in light of the Board s findings in the un
derlying C case at 274 NLRB 632
In my 9 June 1987 supplemental decision in the back
pay proceeding, I relied basically on two considerations
The first was Supervisor Blosser s comment that the
Company was considering taking Lingo to the LaGrange
project since his production had been good Supple
mental decision at 3, LL 10-15 The second was an ex
change of correspondence between the Union's business
agent, Smith, and Respondent's official, Martell In rele
vant part, Smith s 9 March letter announced that Lingo
`has been officially appointed union steward He will be
put on the job you have in LaGrange County on the
Toll Road when you start the project Martell s 12
March reply stated Pursuant [sic] to your letter of
March 9, this letter is to provide notification that Ralph
Lingo has not, and will not be working on the LaGrange
County Toll Road Project He will be laid off from our
firm this week when we reduce our work force at the
Angola project The layoff to which Martell refers is
the one found to be discriminatory by the Board As
contended by the General Counsel, I found significance
in Martell s making a connection between Lingo s (dis
criminatory) layoff and the announcement that he would
not work on the LaGrange project I found that it would
have been futile for the Union to refer Lingo in June
11 Although Respondent discharged its employees between projects
12 I note that the Board s remedial order and notice to employees
simply directed that Lingo be made whole for any loss of earnings There
was no attempt to define the length of the period for which backpay was
sought
TRANS TECH ELECTRIC 715
(when a request was made) in light of Martell s asserted
disinclination to employ him
In determining whether the General Counsel was sub
stantially justified in proceeding on the LaGrange con
tention I put no weight on the fact that his evidence and
argument convinced me to rule in his favor
Viewing the backpay matter as a whole, however I
find that the General Counsel was in possession of evi
dence that (1) indicated that a Respondent supervisor
had spoken favorably of Lingo s transfer to LaGrange
and (2) showed that Respondents responsible official,
Martell, had written a letter connecting Lingo s discrimi
natory layoff with the assertion that Lingo would not
work at LaGrange Putting to one side the portion
quoted above from the Board s footnote 1 in its original
decision at 274 NLRB 632, I would have no hesitation in
finding that the General counsel was substantially juste
feed in proceeding on the evidence he adduced before me
in the backpay proceeding
Respondent argues in its application at 2, paragraph 5,
that the Board's footnote 1 acted to bar the General
Counsel from proceeding with the LaGrange contention
in the backpay proceeding The General Counsel, in his
motion to dismiss at 9 argues it is clear that the Board
in that disavowal is addressing an evidentiary point bear
mg on the underlying unfair labor practice determina
tion, and is not addressing the issue of remedy I find
that the General Counsel's distinction is well taken
Whether Lingo s failure to work at LaGrange constitutes
evidence of Respondents discriminatory motive is not
necessarily a compliance question as viewed at the time
by the General Counsel Compliance traditionally ad
dresses itself to questions of what a discriminatee s earn
rags history would have been absent the discrimination
practiced against him See, e g Casehandling Manual
(Part Three) Compliance section 10530 Haberman Con
structon Co, supra, 236 NLRB 79 makes this distinction
clear The Board there took account of the compliance
possibility that discnminatees might be due backpay for
later projects The Board nowhere hints, however that
any failure to hire the discriminatees on those projects
constituted a separate unfair labor practice or evidence
supporting the unfair labor practices actually found
Here, the question, as viewed by the General Counsel
prior to the issuance of the Board's supplemental deci
sion at 287 NLRB 623, was not whether Respondent
honored its contractual obligations with the Union or
whether the failure to transfer Lingo to LaGrange was
evidence of Respondents discriminatory motive, but
rather what Lingo s employment history would have
been absent his discriminatory layoff The General Coun
sel was in possession of evidence that Lingo s employ
ment history would have included a stint at LaGrange
had he not fallen afoul of Respondents discrimination
That he was unsuccessful in convincing the Board of
that fact does not render his pursuit of the argument sub
stantially unjustified A contrary decision would, in my
belief, interfere with the General Counsel's vigorous en
forcement of the labor laws Shellmaker Inc, supra, 267
NLRB 20
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edi3
ORDER
The General Counsel's motion to dismiss application
for attorney's fees and expenses under the Equal Access
to Justice Act is granted and the request by applicant
for the award of fees and expenses is denied
13 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