Woodview Rehabilitation Center

National Labor Relations Board - Board Decisions

Feb 28, 1989

268 N.L.R.B. 1239 (N.L.R.B. 1989)

WOODVIEW REHABILITATION CENTER
Woodview Rehabilitation Center and 1199 Indiana
of the National Union of Hospital and Health
Care Employees, Division of Retail, Wholesale
and Department Store Union, AFL-CIO. Cases
25-CA-13618(E) and 25-CA-13826(E)
28 February 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 29 March 1983 Administrative Law Judge
Robert W. Leiner issued the attached Supplemental
Decision. The Applicant filed exceptions and a sup-
porting brief and the General Counsel filed limited
cross-exceptions and a brief in support of both its
cross-exceptions and in support of the Supplemen-
tal Decision.
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
conclusions and to adopt the recommended Order.
ORDER
It is hereby ordered that the application of the
Applicant, Woodview Rehabilitation Center,
Michigan City, Indiana, for an award under the
Equal Access to Justice Act be dismissed.
Chairman Dotson did not participate in the underlying proceeding.
SUPPLEMENTAL DECISION AND ORDER
[Equal Access to Justice Act]
ROBERT W. LEINER, Administrative Law Judge: This
is a supplemental proceeding under the Equal Access to
Justice Act (EAJA) (P.L. 96-481; 94 Stat. 2325) and
Section 102.143 et seq. of the Board's Rules and Regula-
tions.
Woodview Rehabilitation Center (herein called the ap-
plicant) filed a timely application, dated January 11,
1983, for an award of fees and expenses under EAJA, to-
taling $9,575.69.
On February 8, 1983, the General Counsel pursuant to
Section 102.150(a), filed a motion to dismiss the applica-
tion, inter alia, on the grounds that (1) the application
failed to demonstrate eligibility under Section 102.147(f)
(i.e., failure to disclose net worth of applicant's affiliates);
and (2) pursuant to Section 102.144(a) of the Board
Rules and Regulations, the General Counsel's issuance of
complaint, trial of the case, and exceptions to my Deci-
sion and recommended Order demonstrated the General
Counsel's actions were "substantially justified" notwith-
standing applicant, in part, prevailed.'
On March 16, 1983, applicant filed a reply to the Gen-
eral Counsel's motion to dismiss, inter alia, reasserting
that the Respondent at all material times offered to settle
the case on terms more favorable to the General Counsel
than the Board disposition; provided the General Coun-
sel with evidence contrary to the General Counsel's case
during the General Counsel's investigation; pursuant to
Section 102.144(a) of the Board's Rules and Regulations,
prevailed "in a significant and discrete substantive por-
tion of [the] proceeding"; and that the Board's Decision
and Order demonstrated that applicant's further offer to
settle following the Administrative Law Judge's Deci-
sion and prior to the General Counsel's filing exceptions,
showed the General Counsel's continued bad faith in
continuing to litigate and required applicant to incur
needless further expenses.
My recommended Decision and the Board's Order
found, consistent with the consolidated complaint, that
the applicant engaged in a widespread and deliberate
course of unlawful conduct designed to restrain and dis-
courage, and thereby blunt and thwart, its employees'
statutory right to be represented by a labor organization
(threats of loss of beneficial working conditions, the futil-
ity of union representation, maintaining unlawful surveil-
lance over its employees' union activities, and promulga-
tion and maintenance of unlawful rules concerning its
employees' rights to engage in lawful union activities).
The Board nevertheless agreed with my further conclu-
sions that, contrary to the allegations of the complaint,
the General Counsel failed to support its burden of prov-
ing under Section 8(a)(l) and (3) of the Act by a prepon-
derance of the evidence that the applicant unlawfully re-
duced the working hours of, and unlawfully terminated
the employment of, applicant's employee, Kenneth R.
Osborne.
With regard to Osborne, however, and any suggestion
by the General Counsel to the contrary notwithstanding,
the applicant, under Section 102.144(a) of the Rules and
Regulations, prevailed in a "significant and discrete sub-
stantive portion" of the proceeding by the dismissal of
these latter 8(aXl) and (3) allegations.
On the other hand, the evidence showed that, by its
surveillance and other unlawful conduct directed toward
Osborne,2 the Respondent was attempting to single him
out. The evidence of record also showed, and I particu-
larly noted, that the Osborne discharge was a supremely
close matter; that the General Counsel had proved a
prima facie case of a discharge in violation of Section
8(aX3); and that if there was any evidentiary basis,
whether by applicant's records, demeanor of witnesses,
or otherwise to cause me to disbelieve applicant's de-
fense (i.e., if there was evidence of applicant's condona-
tion, a pretext, etc.), I would have entertained a different
view of applicant's treatment of Osborne.
Administrative Law Judge's Decision and recommended Order
issued March 24, 1982; the Board Order is dated December 13. 1982.
' While other employees, as applicant observes, were also engaged in
union activities, applicant, on the record in the underlying proceeding,
failed to keep their activities under unlawful surveillance: only Osborne's.
268 NLRB No. 189
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view therefore of Osborne being the direct object
of applicant's unlawful attention, the prima facie unlaw-
fulness of the discharge, and in view of my findings of
applicant's other unlawful conduct and the Board's con-
currence, I conclude under Section 102.144(a) that, al-
though applicant prevailed in a "significant and discrete
substantive portion" of the proceeding, the General
Counsel was nevertheless "substantially justified," at all
stages of the proceeding, in seeking to vindicate what it
quite reasonably could believe were violations of Section
8(a)(1) and (3) of the Act in applicant's conduct toward
Osborne.3 That the road was difficult and the General
Counsel was unsuccessful is not the test. The General
Counsel was not unreasonable in seeking relief from the
Board in excepting to my findings and conclusions on
the alleged discrimination against Osborne. Tyler Business
Service v. NLRB, 111 LRRM 3001 (4th Cir. 1982).
Certainly, the General Counsel during the investiga-
tory and trial stages, in view of the above findings and
3 To the extent that applicant argues (reply br., p. 9) that the General
Counsel's conduct constitutes an admission of lack of substantial justifica-
tion because the General Counsel failed to petition the "Court of Appeals
[sic]" to set aside the Board's decision, the argument is legally baseless.
Cf. NLRA, Sec. 10(e)(f). The General Counsel is not "aggrieved" by the
Board's Order dismissing the 8(aX
3
) allegations within the meaning of
Sec. 10().
conclusions, could not have relied on applicant's previ-
ous submission of its rebutting witnesses' unsworn state-
ments because the applicant had blacked out the names
of such witnesses. The General Counsel could not rea-
sonably rely on such unidentified, unsworn statements.
He could not interview unknown witnesses.
I do not suggest that the existence of a prima facie
case constitutes "substantial justification." I conclude
only that the General Counsel met that statutory burden
on the facts of this case within the meaning of Section
102.144(a). 4 Accordingly, the application must be dis-
missed.
ORDER5
It is ordered that the application be dismissed.
4 I therefore need not treat with the General Counsel's other defenses,
including eligibility. In passing, it should be noted that even failure to
prove a prima facie case does not preclude a showing of "substantial jus-
tification," EnerhauL Inc., 263 NLRB 890 (1982).
B If no exceptions are filed as provided in 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.
1240