K And I Transfer & Storage Inc. And City Cartage And Moving, Inc.

K & I TRANSFER & STORAGE 1063 K and I Transfer & Storage Inc. and City Cartage and Moving, Inc. and Chauffeurs, Teamsters and Helpers, Local Union No . 215, a/w Inter- national Brother1ood of Teamsters , Chauffeurs, Warehousemen a Pd Helpers of America. Cases 25-CA-14937(E), 25-RC-7844, 25-RC-7845 11 December 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 28 March 1985 Administrative Law Judge Irwin H. Socoloff issued the attached supplemental decision. The Applicant filed exceptions and a sup- porting 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 brief and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the application of the Appli- cant, K and I Transfer & Storage, Inc., and City Cartage and Moving, Inc., Evansville, Indiana, for an award under the Equal Access to Justice Act is dismissed. I 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. Conf Rep. No 99-120 at 9 (1985). Albert G. Fisher, Esq., for the General Counsel. Thomas 0. Magan, Esq., and William M. Schiff Esq., of Evansville, Indiana, for the Respondent. Samuel Morris, Esq., of Evansville, Indiana, for the Charging Party. SUPPLEMENTAL DECISION (Equal Access to Justice Act) IRWIN H. SOCOLOFF, Administrative Law Judge. On September 19, 1984, I issued my decision in this proceed- ing recommending dismissal of the complaint in its en- tirety. No exceptions were filed and , on October 17, 1984, the Board entered its Order dismissing the com- plaint. On November 14, 1984, Respondents filed an ap- plication for award of fees and expenses under the Equal Access to Justice Act (EAJA). Thereafter, the General Counsel submitted an answer to the application and a memorandum in support thereof.' The Application and Answer raise the following issue: Whether the General Counsel was substantially justified in issuing the com- plaint and proceeding to trial. Findings and Conclusions As my findings and conclusions in this case rested, pri- marily, on credibility determinations and, had contrary credibility resolutions been made, a different result would have obtained, I find and conclude herein that the General Counsel was substantially justified in prosecut- ing this case. Thus, my finding that Respondents did not threaten plant closure rested on a refusal to credit the testimony of employees DeLong and Cundiff and a reli- ance on the testimony of the terminal manager, Robert McKay. My conclusions, that the institution of an incen- tive bonus plan was not an unlawful wage increase, and that Healy's discharge was not for unlawful reasons, rested on findings that Respondents, at the time they took those actions, did not have knowledge of their em- ployees' union activities and had not displayed antiunion animus. Those findings, in turn, were premised on my decision to credit the testimony of McKay over that of Healy. In further finding that Healy was a statutory su- pervisor at the time of his discharge, I rejected Healy's testimony and relied, instead, on the testimony of Re- spondents' witnesses. Similarly, conclusions pertaining to the less serious allegations of violations of Section 8(a)(1) of the Act were reached in reliance on the testimony of McKay. With respect to the refusal-to-bargain allegation, I found that, at the time of the Union's demand, it en- joyed a card majority. My conclusion that a bargaining order should not issue was based on the General Coun- sel's failure to show that Respondents had engaged in conduct tending to preclude the holding of a fair elec- tion. That determination was based on my findings that the 8(a)(1) and (3) allegations had not been sustained, findings which, as noted, rested on credibility resolu- tions.2 CONCLUSIONS OF LAW 1. Respondents are prevailing parties meeting the eligi- bility standards of the Equal Access to Justice Act. 2. The General Counsel of the National Labor Rela- tions Board was substantially justified in prosecuting the instant case. 3. Respondents are not entitled to an award of fees and expenses. Based on the foregoing, I issue the following recom- mended3 I On January 2, 1985, Respondents, Applicants herein, filed a request for further proceedings. That request is denied 2 Respondents' application for fees and expenses incurred in connection with the representation cases is rejected, as such are not covered by EAJA. See Sec. 102.143 of the Board's Rules and Regulations 3 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. 277 NLRB No. 113 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER K and I Transfer & Storage, Inc. and City Cartage and The Application for Award of Fees and Expenses Moving, Inc., is denied. under the Equal Access to Justice Act of Respondents,