Western Newspaper Publishing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1985

276 N.L.R.B. 1566 (N.L.R.B. 1985)

1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Newspaper Publishing Co., Inc. and Print-
ing and Graphic Communications Union No. 17,
International Printing and Graphic Communica-
tions Union, AFL-CIO. Cases 25-CA-
13309(E) and 25-CA-13621(E)
29 October 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 18 September 1984 Administrative Law
Judge Thomas A. Ricci, issued the attached supple-
mental decision. The Applicant filed exceptions
and a supporting brief, 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 supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge' s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the application of the Re-
spondent, Western Newspaper Publishing Co., Inc.,
Indianapolis, Indiana, for attorney's fees and ex-
penses under the Equal Access to Justice Act is
denied.
i The Applicant has excepted to the judge's suggestion that the Gener-
al Counsel was substantially justified in issuing the complaint in this case
because the issues involved required credibility resolutions . In finding the
complaint was substantially justified, however, the judge did not rely on
the existence of credibility disputes . Rather, the judge found that the de-
cision in this case turned on certain factual inferences which he was only
able to draw after hearing lengthy testimony subject to cross-examina-
tion. Further, we note that the Board did resolve a credibility dispute as
to a crucial issue when it credited the Respondent 's assertion that its in-
clusion of a proposal to delete bindery work from the contract with its
March 1981 proposals was merely an oversight.
The Applicant has also excepted to the judge's finding that the General
Counsel was substantially justified in issuing this complaint because the
Board decision took a different view of the facts than the judge did. The
Board did not reverse the judge's findings or conclusions , however; it
merely amplified his findings. Therefore, we do not rely on this finding in
adopting the judge's supplemental decision.
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, 99 Stat. 183
(1985), did not alter but merely clarified the definition of "substantially
justified." "Substantially justified" means more than "mere reasonable-
ness " H.R. Rep. 99-120 at 9 (1985).
Sharon Bailin, Esq., for the General Counsel.
Herbert C Snyder, Jr, Esq. (Barnes, Hickam, Fantzer &
Boyd), of Indianapolis, Indiana, for the Respondent.
Frederick W. Dennerline, Esq. (Fillenwarth , Dennerline,
Graoth & McCracken), of Indianapolis , Indiana, for the
Charging Party.
SUPPLEMENTAL DECISION
Application for Attorney's Fees and Expenses
Under the Equal Access to Justice Act
THOMAS A. Ricci, Administrative Law Judge. On
September 14, 1983, I issued a decision in which I found
that the record as a whole did not suffice to prove that
the Respondent, Western Newspaper Publishing Co.,
Inc., had violated Section 8(a)(5) of the National Labor
Relations Act, as alleged in the complaint, and I also
found that the Respondent had committed an unfair
labor practice in violation of Section 8(a)(1), but because
that was a relatively minor offense, I recommended dis-
missal of the complaint in its entirety. Exceptions having
been filed, the case was considered by a three-member
panel of the Board. On March 26, 1984, the Board issued
its Decision and Order, in which it agreed with the con-
clusion that the 8(a)(5) allegation had not been proved,
but issued a remedial order with respect to the 8(a)(1)
violation found to have been committed. While agreeing
with my recommendation to dismiss the 8 (a)(5) aspect of
the case, a majority of the Board panel took a different
view of the case, saw the facts in a different light, and
explicated its view in an extended statement of facts and
rationale. One Board member, while also agreeing with
the ultimate conclusion, found it "unnecessary" to adopt
his colleagues' decision "in its entirety."
On April 25, 1984, the Respondent filed an application
for an award of attorney's fees and expenses, with sup-
porting documents, pursuant to the Equal Access to Jus-
tice Act (EAJA), 5 U.S.C § 504 et seq. (1982), which
was referred to me for appropriate action by order of the
Board dated April 26, 1984.1
The General Counsel filed an answer to the applica-
tion of the Respondent on May 24, 1984, also with a sup-
porting memorandum, in which she moved for dismissal
of the entire request for attorney's fees and expenses.
The General Counsel urges dismissal of the application
on a number of grounds, the principal one of which is
that prosecution of the alleged unfair labor practice in
this case was "substantially justified." Therefore, she
argues, pursuant to Section 504(a)(2) of the EAJA and
Section 102.44(a) of the Board's Rules and Regulations,
the Respondent is not entitled to recover fees or ex-
penses. Because I find merit in that contention, I deem it
unnecessary to consider the merits of other contentions
made in the motion to dismiss.
However it be phrased, the test of whether a respond-
ent is entitled to counsel fees after a Board proceeding is
whether or not the General Counsel acted reasonably in
issuing the complaint, and whether or not there was sub-
stantial justification for going ahead with the case.2
i The Respondent also filed a simultaneous motion, also referred to me
by the Board, to withhold information from public disclosure. That
motion is granted.
2 From Sec. 102.144(x) of the Board's Rules with respect to the EAJA:
Continued
276 NLRB No. 173
WESTERN PUBLISHING CO. 1567
These are not tests that can be made with mathematical
precision, when the answer is dictated by objective con-
siderations in all cases. When potential witnesses are
interviewed separately and by diverse investigators, a
certain impression is formed. If the statements are not
self-contradicting, or otherwise inherently incredible, it is
not unreasonable for the General Counsel to rely on
them. When, later, at a formal hearing, the various wit-
nesses are questioned and cross-examined exhaustively,
the outsider who hears the case may form a different
opinion of what really happened, or what was said by
the participants. Experience has demonstrated that the
most reliable way to learn the true facts surrounding an
event is from live testimony subject to cross-examination.
It must also be remembered that when the administra-
tive law judge decides which way he or she will decide
the case, he or she sets out reporting the facts in the
most persuasive way possible, in order to assure affirm-
ance in case of appeal. This does not mean that the other
view, which the judge rejects, lacks a reasonable basis.
In fact, this very case well illustrates the point, because
the two members of the Board panel, which ultimately
considered the record, took still a third view of the facts,
not only different from that of the General Counsel
when issuing the complaint, but also different from that
of the judge. If there can be three views of the same
case, it can hardly be said that any one of them was "un-
reasonable," or not "substantially justified."
What in my opinion most clearly justified the General
Counsel's decision to go ahead with this case is the
second part of her legal appraisal of the question present-
ed. The first was that because there was no impasse
reached in the bargaining process, the Respondent was
not justified in taking unilateral action by changing con-
ditions of employment without agreement by the Union.
The second is that even if the parties were at an impasse,
it was because the Respondent was insisting on a con-
tract provision outside the proper scope of collective
bargaining. Were she correct on this latter contention,
the complaint would have been sustained. And it is pre-
cisely on this point that I believe the record in its entire-
ty warrants the conclusion that she was "substantially
justified" in issuing the complaint.
In their testimony the witnesses played with words
and were ambiguous and confused in their conflicting
contentions. The problem started with the wording of
the contract in effect when the bargaining began. Unlike
the usual collective-bargaining agreement, this one did
not describe the bargaining unit in conventional terms-
by listing precise occupations. Instead, it set out count-
less functions in the greatest variety of machines used in
the printing industry. Where the contract recognized the
Union as bargaining agent for "all employees working in
An eligible applicant may receive an award for fees and expenses in-
curred in connection with an adversary adjudication or in connec-
tion with a significant and discrete substantive portion of that pro-
ceeding, unless the position of the General Counsel over which the
applicant has prevailed was substantially justified. The burden of
proof . . . is on the General Counsel, who may avoid an award by
showing that his position was reasonable in law and fact.
Again, sec. 504(a)(2) of the EAJA reads that recovery is allowed
"where the adjudicative officer finds that the position of the agency
as the party to the proceeding was substantially justified ... .
the classifications covered by this contract," it embodied
all the functions previously described elsewhere in the
contract. The Company's proposal to change the con-
tract-the demand in which it insisted upon to impasse-
was to give it freedom to use any other employees it
chose to.do part of the work listed in the contract. The
Union called this a change in the "jurisdiction" of the
Union; the General Counsel called it a change in the
"bargaining unit." If the General Counsel's position had
prevailed after all the testimony was appraised, she
would have won the case.
Apart from this confusion which could only be re-
solved by a formal hearing and careful analysis of the
facts as given by both sides, there is another relevant re-
ality which, in my judgment, absolutely justified the
General Counsel in proceeding. As reported in my deci-
sion: "At the time of the events, the second half of 1980,
the Company had 28 employees, 7 represented under
contract by Local 17 of the International Printing and
Graphic Communications Union (previously known as
the Pressmen's Union), the Charging Party here, 4 repre-
sented by the International Typographical Union (ITU),
which did not participate in the hearing, 12 shop work-
ers not represented by any union, 2 office clericals and 1
janitor."
A critical proposal by the Company was removal from
the contract coverage of all bindery work as detailed
among many other operations, in article 43 of the expir-
ing contract. On the Union's objections, this was a major
issue leading to the impasse. With 15 of the total of 28
employees not represented by any union, can the Gener-
al Counsel be faulted for believing that the Respondent
was insisting on altering the bargaining unit, or being
free to use employees outside the contract bargaining
unit to do the work-however described-covered by
the union contract? She produced witnesses who quoted
the management agents as stating unequivocally that the
Company wished to be free, when necessary, to have
some of the work falling within the scope of the Local
17 contract, by its employees who were covered by the
ITU contract. It is true that other testimony received at
the hearing tended to explain away this direct evidence,
but the General Counsel had a right to believe her wit-
nesses in the circumstances . Restated, in terms of the
new law, was she acting "reasonably," was she "substan-
tially justified" in issuing the complaint? I think yes.
As it happened, and is often the case, when the total
record was considered, including many other related
facts that came to light with the detailed examination
and cross-examination of witnesses, I saw reason for dis-
missing this major allegation . But, again to quote author-
ity:
The standard, however, should not be read to raise
a presumption that the government position was not
substantially justified , simply because it lost the
case. Nor, in fact, does the standard require the
government to establish that its decision to litigate
was based on a substantial probability of prevail-
ing.3
' S. Rep. 96-253 at 7; H ,R. Rep . 96-1418 at 11.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER4
It is ordered that the Application for Attorney's Fees
and Expenses filed by the Respondent pursuant to the
Equal Access to Justice Act and Section 102 . 143 et seq.
of the Board 's Rules and Regulations is denied.
4 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.