Wolock & Lott Transmission Co.

National Labor Relations Board - Board Decisions

Mar 17, 1992

306 N.L.R.B. 710 (N.L.R.B. 1992)

710
306 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Wolock & Lott Transmission Company and Law-
rence C. Spiegel. Case 22–CA–17235(E)
March 17, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 16, 1991, Administrative Law Judge
Eleanor MacDonald issued the attached supplemental
decision. The Applicant filed exceptions and a sup-
porting brief, and the General Counsel filed an answer-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record and the at-
tached supplemental decision in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the application of the Applicant,
Wolock & Lott Transmission Company, Somerville,
New Jersey, for attorneys’ fees and expenses under the
Equal Access to Justice Act is denied.
Dorothy Karlebach, Esq., for the General Counsel.
Stephen E. Klausner, Esq. (Klausner, Hunter & Cige), of
Somerville, New Jersey, for the Respondent.
Randi Doner, Esq. (Balk, Oxfeld, Mandell & Cohen), of
Newark, New Jersey, for the Charging Party.
SUPPLEMENTAL DECISION
ELEANOR MACDONALD, Administrative Law Judge. On
June 13, 1991, I issued my decision in this case holding that
Wolock & Lott Transmission Company had not violated the
Act by discharging its employee Lawrence C. Spiegel be-
cause he engaged in concerted activity. No exceptions were
filed and on July 23, 1991, the Board adopted my decision
dismissing the complaint.
On August 20, 1991, Wolock & Lott filed its application
for award of fees and other expenses. The General Counsel
filed a motion to dismiss on September 20, 1991, and coun-
sel for the Charging Party submitted a statement on Sep-
tember 27, 1991.
Although the jurisdictional and other issues raised by the
General Counsel and the Charging Party are interesting and
may have merit, their resolution would be an empty exercise.
This application may be decided most expeditiously by a
brief discussion of the issue of substantial justification.
The position of Wolock & Lott is that ‘‘from the outset
of the investigation, Wolock & Lott took the position that
there was absolutely no justification, let alone substantial jus-
tification, for the Board proceeding to Complaint and hear-
ing. Mr. Spiegel’s story was incredile, changing from day to
day. Counsel for the General Counsel knew, or should have
known, this to be true from her investigation.’’
In the underlying case, I discredited Spiegel’s testimony
and other testimony in his support, and I credited the testi-
mony of Mohl and Fornadel who testified on behalf of
Wolock & Lott. Had I decided the credibility issues dif-
ferently, I would have found that Spiegel had been dis-
charged for engaging in concerted activities in violation of
the Act. Indeed, I noted in my decision that credibility find-
ings were necessary to a decision of the issues in the case.
I also noted that the issues of credibility were ‘‘not easy to
resolve’’ and I continued with a substantial and lengthy dis-
cussion of the factors involved in deciding the credibility of
the witnesses and finding the facts.
The evidence presented by the General Counsel, if I had
credited it, would have been sufficient to establish a prima
facie case of unlawful conduct. Accordingly, under the cir-
cumstances of this case, the General Counsel was substan-
tially justified in pursuing the litigation. Carpenters Local
2848 (Dallas Corp.), 291 NLRB 787 (1988).
Wolock & Lott has requested that its net worth exhibit be
withheld from public disclosure. I shall grant this request.
CONCLUSION OF LAW
The General Counsel’s position in litigating the underlying
proceeding was substantially justified.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The application is dismissed.
IT IS FURTHER ORDERED that Wolock & Lott’s net worth
exhibit shall not be included in the public record, shall be
withheld from public disclosure, and shall remain sealed.