Westerman, Inc.

National Labor Relations Board - Board Decisions

May 12, 1983

266 N.L.R.B. 799 (N.L.R.B. 1983)

WESTERMAN, INC.
Westerman, Inc. and United Steelworkers of Amer-
Ica, AFL-CIO. Case 9-CA-15889(E)
May 12, 1983
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND ZIMMERMAN
On January 20, 1983, Administrative Law Judge
Claude R. Wolfe issued the attached Supplemental
Decision in this proceeding. Thereafter, the Appli-
cant filed exceptions and a supporting 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 Supplemental Decision in light of the ex-
ceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge as modified herein' and to
adopt his recommended Order.
ORDER
It is hereby ordered that the application of the
Applicant, Westerman, Inc., Bremen, Ohio, for an
award under the Equal Access to Justice Act be,
and it hereby is, denied.
I The Administrative Law Judge stated that the General Counsel pre-
sented no evidence in the underlying unfair labor practice case in support
of the complaint allegation that the Applicant, through its supervisor,
Robert Knight, created an impression among its employees that their
union activities were under surveillance by the Applicant. We note, how-
ever, that in the Administrative Law Judge's Decision in the underlying
unfair labor practice case (not published in the Board's bound volumes),
he did not find that the General Counsel presented no evidence in sup-
port of this allegation, but rather that "[t]he evidence does not ... show,
as the complaint alleges, that Knight created an impression of surveil-
lance of employee union activities" (emphasis supplied). In dismissing the
impression-of-surveillance allegation, the Administrative Law Judge
relied on the fact that it was an employee who broached the subject of
how Knight would know who was at the union meeting, and that all
Knight did was give a noncommittal answer.
In any event, we agree with the Administrative Law Judge, for the
reasons he sets forth, that the impression-of-surveillance allegation was
not, under the circumstances, a "significant" portion of the unfair labor
practice proceeding, and that the Applicant is therefore not eligible to
apply for an award of fees and other expenses incurred in responding to
that allegation.
SUPPLEMENTAL DECISION
CLAUDE R. WOLFE, Administrative Law Judge: On
June 10, 1982, the Board, in the absence of any excep-
tions filed, issued its unpublished Order adopting the
findings and conclusions in my Decision issued May 3,
1982, finding that Respondent had committed certain
violations of Section 8(a)(1) of the Act, but dismissing
complaint allegations of 13 discharges in violation of
Section 8(a)(3) of the Act and an allegation that Re-
266 NLRB No. 141
spondent had created an impression of surveillance of
employee union activities in violation of Section 8(aXl)
of the Act.
On July 9, 1982, Westerman, Inc., hereinafter called
Applicant, filed an application for attorney fees and ex-
penses under the Equal Access to Justice Act' together
with a motion to withhold confidential financial informa-
tion from public disclosure.
On July 23, 1982, the General Counsel filed a motion
to dismiss the application because (1) fees and expenses
incurred prior to October 1, 1981, the effective date of
the Equal Access to Justice Act, are not recoverable; (2)
the General Counsel's litigation position was reasonable
in law and fact; and (3) Applicant did not prevail on a
discrete substantive portion of the proceeding. By order
of August 23, 1982, I denied the General Counsel's
motion as incorrect on points I and 3, and deferred deal-
ing with the issue of the General Counsel's reasonable-
ness until the General Counsel submitted his answer to
the application together with his supporting evidence
and argument. By the same order, I granted Applicant's
unopposed motion to withhold confidential financial in-
formation from public disclosure.
The General Counsel repeated the same three grounds
in his answer filed September 20, 1982, and further con-
tends that fees and expenses incurred before a complaint
issues or incurred in the proceeding to recover fees and
expenses are not recoverable. The General Counsel also
challenges the adequacy of the application with respect
to fee documentation, description of the employee com-
plement, and net worth statement.
Applicant then filed, on October 13, 1982, motions for
an oral hearing and oral argument, a date certain for sub-
mission of fee data, and a reply brief to the General
Counsel's answer. Applicant's motions for hearing, oral
argument, and date for submission of fee data are denied.
Its reply brief has been carefully considered.
Upon the entire record, including the official report of
proceedings in the unfair labor practice case, the follow-
ing findings and conclusions are appropriate.
The General Counsel contends that Applicant did not
prevail on a discrete substantive portion of the proceed-
ing. I do not agree. To conclude, as the General Counsel
argues, that the layoff of 13 employees is not a discrete
portion because the threats of termination of plant clo-
sure "shared a close and intimate relationship with the
allegations of unlawful layoff" would be an ingenious ex-
ercise at best. The layoffs were specifically alleged as
violations of Section 8(aX3) and, derivatively, (1) of the
Act. The threats were alleged and found to be independ-
ent violations of Section 8(aXl). Apart from the obvious
fact that the 8(aXl) violations may be evidence support-
ing the 8(a)3) allegations, the two classes of violations
are plainly distinct and separately litigable. There is no
need to further belabor the point in view of the General
Counsel's limited argument described above, and I find
the Applicant did prevail on a "significant and discrete
substantive portion" of the unfair labor practice proceed-
' P.L. 96-481, 94 Stat. 2325, and see Sec. 102.143 of the Board's Rules
and Regulations.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, as defined in the Board's Rules and Regulations,2
when the 8(aX3) allegations were dismissed.
The General Counsel presented no evidence in support
of the complaint allegation that Applicant violated Sec-
tion 8(aXl) of the Act by creating an impression of sur-
veillance of employee union activities. Whether this alle-
gation standing alone is a "discrete substantive portion"
of the proceeding or not, it was not a "significant" por-
tion. All of the violations alleged in the complaint other
than the layoffs were therein ascribed to Supervisor
Robert Knight. The impression of surveillance allegation
was one of five specifications, as amended, of Knight's
alleged unlawful behavior. Given the complaint attribu-
tion of all unlawful statements to Knight, I find it most
probable that Applicant's able counsel queried Knight
about his entire course of conduct with respect to em-
ployee union activity in the normal course of hearing
preparation, and I cannot believe that investigating
whether Knight said or did anything likely to convey an
impression of surveillance to employees consumed more
than a minimal amount of the time required to discuss his
alleged transgressions with him. Bearing in mind that the
13 allegedly unlawful layoffs are described by Applicant
as "the gravamen of the entire case," and considering
Applicant's claim that it would have settled the case if
the complaint had only alleged violations of Section
8(aXl), I am persuaded that the impression of surveil-
lance allegation was not a matter of great concern to
Applicant except to the extent that it might be evidence
supportive of the 8(a)(3) allegations. On the whole, it
seems to me that this single allegation of an 8(a)(l) viola-
tion by Knight, who was charged with several other
8(aXI) violations, was neither a "significant portion" of
the proceeding on the face of the amended complaint
nor a cause of measurable additional legal expense to Ap-
plicant. Accordingly, the issue of whether this allegation
was substantially justified need not be resolved.
The various challenges of the General Counsel to the
form and content of the net worth exhibit, description of
employee complement, and fee document are easily re-
medied by simple amendment, which Applicant has ex-
pressed a willingness to do, and the General Counsel has
not yet identified any fatal defect in the application. The
computation of any fees and expenses due only becomes
relevant after a finding of liability therefor. There is no
need to venture into these areas because I am persuaded
for the following reasons that the General Counsel was
substantially justified in proceeding to hearing on the al-
legations of unlawful layoff.
The General Counsel's failure to win raises no pre-
sumption that he was not substantially justified in press-
ing the allegation that the layoffs were unlawful.3 More-
over, the General Counsel is not required to establish
that his decision to litigate the issue was based on a sub-
stantial probability of prevailing,4 nor does a failure of
2 Secs. 102.143(b) and 102.144.
S Tyler Business Services v. NLRB, I11 LRRM 3001, 3002 (4th Cir.
1982); Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir. 1982); S d H
Riggers and Erectors v. O.SH.R.C., 672 F.2d 426 (5th Cir. 1982); Wyan-
dotte Savings Bank v. NLRB, 110 LRRM 2929, 2930 (6th Cir. 1982).
' Tyler. supra at fn. 3; Heydt, supra at fn. 3; S d H Riggers. supra at fn.
3.
the General Counsel to establish a prima facie case neces-
sarily require a finding that his position was not substan-
tially justified.5 The applicable test is whether the Gen-
eral Counsel's litigation position had a reasonable basis in
law and fact.6
In assessing reasonable one must be reasonable. It is
the position of the General Counsel before my contrary
decision issued which must be examined.
Preliminary to this examination, Applicant's reference
to the General Counsel's amendment of the complaint on
the first day of the hearing to add six laid-off employees
to the seven already alleged should be dealt with. My
Decision noted that the General Counsel was aware of
the layoff of the added six quite some time before the
hearing, but also pointed out the delay did not defeat the
amendment and Applicant's defense was not thereby in-
jured because he was granted a 2-month continuance to
prepare. Applicant filed no exception to this finding, and
whether or not this delay in amending occasioned delay
in the hearing it is not relevant to the issue of whether
the General Counsel had a reasonable basis upon which
to prosecute these layoffs or the other seven.
The General Counsel proved union activity, company
knowledge of that activity, expressions by a supervisor
of Respondent hostility to such activity accompanied by
threats of lost jobs as a result of such activity, and a
closely following layoff. The evidence of the timing of
Respondent's first knowledge was ambiguous, and my
conclusion that this knowledge came into being after Re-
spondent decided to have a layoff was not something, in
view of the evidence presented on the point, that the
General Counsel could necessarily have forecast. Not-
withstanding that I adhere to my decision it cannot fairly
be said that reasonable men might not have differed on
this point. Similarly, my finding that Knight's statements
should not, in the circumstances, be treated as an accu-
rate reflection of Respondent's attitudes and intentions is
not entirely beyond dispute.7 Had the General Counsel
prevailed on these two points he would have established
a very strong case in favor of finding the entire layoff to
be unlawful. Although it cannot now be reasonably
maintained, in view of my Decision and the absence of
exceptions thereto, that the General Counsel was correct
in his position, neither can it be said that his position was
frivolous, bereft of reason, or not substantially justified.
To the contrary, the General Counsel's position had a
reasonable basis in fact and law, and met the statutory
requirement of substantial justification.
Accordingly, I find Westerman, Inc., is not entitled to
an award under the Equal Access to Justice Act, and
issue the following recommended:
a Enerhaul, 263 NLRB 890, fn. 3 (1982).
yler., supra at fn. 3; Wyandotte, supra at fn. 3; Operating Engineers
Local 3 v. Bohn, 541 F.Supp. 486 (D. Utah 1982); Alspach v. District Direc-
tor of Internal Revenue, 527 F. Supp. 225 (D. Md. 1981); EnerhauL supra
at fn. 5.
' See e.g., American Art Clay Ca, 148 NLRB 1209, 1218-19, fn. 16
(1964); Drico Industrial Corp., 115 NLRB 931 (1956).
800
WESTERMAN, INC. 801
ORDER
It is hereby ordered that the application of Westerman,
Inc., for an award under the Equal Access to Justice Act
be, and hereby is, denied.