Advance Development And Manufacturing Corp.

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Advance Development and Manufacturing Corpora- tion and District Lodge 170, International Asso- ciation of Machinists and Aerospace Workers, AFL-CIO. Case 39-CA-615(E) 17 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 30 August 1985 Administrative Law Judge David S. Davidson issued the attached. supplemen- tal decision. The Applicant filed exceptions, and the General Counsel filed a brief in reply to the ex- ceptions. i 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 The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Application of the Appli- cant, Advance Development and Manufacturing Corporation, Guilford, Connecticut, for an award under the Equal Access to Justice Act, be dis- missed. i The General Counsel, in its brief, also moved to have the Applicant's exceptions stricken on the grounds that they did not comply with Sec. 102 46 (b) of the Board's Rules and Regulations. In view of our agree- ment with the judge's findings herein, we find it unnecessary to rule on the General Counsel's motion. The Applicant's request for a stay of this proceeding, pending a deci- sion by the Second Circuit Court of Appeals on the Board's petition for enforcement of its order against the Applicant-Respondent in 275 NLRB 186 (1985) is denied. SUPPLEMENTAL DECISION (Equal Access to Justice Act) DAVID S . DAVIDSON, Administrative Law Judge. This is a supplemental proceeding under the Equal Access to Justice ACT (EAJA), as amended , 5 U.S.C. § 504,1 and Sec. 102.143 et seq., of the Board's Rules and Regula- tions. On 21 May 1985 Respondent filed an application for award of fees and other expenses claiming a total of $5203.82 for fees and expenses incurred between 25 Feb- ruary and 6 April 1982, in its defense of the underlying unfair labor practice case. The General Counsel has filed i The Equal Access to Justice Act was reenacted, as amended, on 5 August 1985 Pub L 99-80, 99 Stat 151. a motion to dismiss the application and Respondent has filed an opposition thereto. The complaint in the underlying unfair labor practice case as issued-alleged that Respondent had discriminator- ily discharged four employees. At the outset of the hear- ing counsel for the General Counsel was permitted to amend the complaint to allege that Respondent also vio- lated Section 8(a)(1) of the Act by threatening to with- hold wage increases from employees in May 1981 be- cause they joined the Union. In support of that allega- tion, counsel for the General Counsel presented the testi- mony of former employee Gary DeGenaro that he over- heard a conversation between employee Martindale and Supervisor Curtis Fisher, that Fisher denied Martindale's request for a wage increase, and that when- Martindale continued to complain about his wages, Fisher replied, "I'm not the one who told you to join the Union," and terminated the conversation. Fisher contradicted DeGen- aro's testimony, and Martindale, who had left the area, was not available to testify. I discredited DeGenaro's tes- timony in this regard and recommended dismissal of this allegation of the complaint. No exceptions were filed to this recommendation which was adopted by the Board.2 It is for this portion of the case that Respondent seeks reimbursement for fees and expenses. The General Counsel contends that the application should be dismissed because Respondent has not estab- lished that it was a prevailing party with respect to a sig- nificant and discrete portion of the case, because the ap- plication fails to demonstrate that Respondent meets all the eligibility requirements of the Equal Access to Jus- tice Act, because the application is unsupported by a de- tailed statement of applicant's net worth as required by Section 102.147(f) of the Board's Rules and Regulations, because the General Counsel's position was substantially justified with respect to the portion of the complaint which was dismissed, and because Respondent's docu- mentation of fees and expenses does not provide ade- quate information. As I find merit in the contention that the General Counsel's position with respect to the al- leged threat was substantially justified, I find it unneces- sary to reach the other issues raised by the General Counsel and will recommend that the application for fees and expenses be denied. The General Counsel contends that the position was substantially justified because dismissal resulted from a resolution of a bona fide credibility conflict which is for a judge to resolve after a hearing and not for the Gener- al Counsel to resolve administratively. Respondent con- tends that the position of the General Counsel was not substantially justified because the amendment to the com- plaint was barred by Section 10(b) of the Act, because it was unrelated to the subject matter of the charge and of the original complaint, because the amendment was de- fective under NLRB v. Fant Milling Co., 360 U.S. 301 (1959), because the evidence in support of the amend- ment was nonexistent or conjectural in tone and incredi- ble, because Martindale was not produced as a witness and his deposition was not taken, and because the Gener- 2 275 NLRB 186 (1985) 277 NLRB No. 115 ADVANCE DEVELOPMENT CORP 1087 al Counsel's refusal to depose Martindale showed lack of good faith in advancing a frivolous charge unsupported by substantial evidence. At the hearing Respondent objected to the amendment to the complaint as unsupported by a charge, raising im- plicitly the 10(b) contention and explicitly the Font Mill- ing contention and the question of relationship of the amendment to the charge and original complaint. The objection was overruled and these contentions were re- jected at the hearing, subject to further consideration after briefs were received before rendering a decision. The ruling was implicitly affirmed in my earlier decision, and I see no reason to reach an opposite conclusion now. In any event, the General Counsel's position that the amendment was timely was substantially justified. The remaining issue is whether the General Counsel was substantially justified in its position on the merits. The testimony of DeGenaro was not strong, particu- larly after cross-examination, but it was sufficient to es- tablish a prima facie case and to warrant finding a viola- tion of the Act in the absence of contradictory testimo- ny. There is no doubt that the General Counsel's case would have been strengthened had Martindale appeared as a witness and testified to corroborate DeGenaro, but the judgment whether to seek to locate Martindale and bring him back to Connecticut to testify was within the range of permitted discretion of the General Counsel. The failure to do so did not mean that DeGenaro's testi- mony would inevitably be rejected, and the failure to seek to depose him does not mean that the General Counsel's pursuit of the allegation was frivolous or in bad faith. Where, as here, credibility issues cannot be resolved by the General Counsel administratively on the basis of documentary or other objective evidence but can only be resolved on the basis of an evaluation of conflicting testi- mony, the General Counsel is substantially justified in bringing the issue before an administrative law judge. Charles H. McCauley Associates, 269 NLRB 791 (1984); Jim's Big M, 266 NLRB 665 (1983), affd. 774 F.2d 1446 (2d Cir. 1984). Accordingly, I conclude that Respond- ent's fee application must be dimissed. Based on the foregoing findings and conclusions, the record in the underlying unfair labor practice case, and the pleadings and attachments herein and pursuant to Section 102.153 of the Board's Rules and Regulations, I issue the following recommended3 ORDER Respondent's Application for Award of Fees and Other Expenses is denied. 8 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.