Budget Rent-A-Car

'BUDGET' RENT-A-CAR 1153 Rapid Rental, Inc., d/b/a Budget Rent-A-Car and ,Automotive, Petroleum, Cylinder and Bottled Gas, Chemical Drivers, Helpers, and Allied Workers and Public Transportation Employees of Washington, D.C. and Vicinity, Local Union 9122, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Case 5-CA-14827(E) 19 December 1985 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 16 October 1984 Administrative Law Judge Walter H. Maloney Jr. 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, and conclusions i and, to adopt the recom- mended Order. ORDER The recommended Order of the administrative law judge is adopted and the 'application of the Ap- plicant, Rapid Rental, Inc., d/b/a Budget Rent-A- Car, Fairfax County, Virginia, for attorney's fees and expenses under the Equal Access to Justice Act is denied. i we believe that Congress in revising the Equal Access to Justice Act„5 U S C § 504 (1982), as amended by Pub L No 99-80, 99 Stat 153 (Aug 5, 1985), did not alter, but,merely clarified, the definition of "substantially justified " "Substantially justified" means more than "mere reasonableness," H R Rep 99-120, p 9 In affirming the judge's conclusion that the General Counsel was sub- stantially justified in issuing the complaint in' this case, we find it unneces- sary to pass on the General Counsel's contentions or the judge's remarks regarding Respondent's compliance with the Board's Rules and Regula- tions in its application for fees and expenses SUPPLEMENTAL DECISION (Equal Access to Justice Act) WALTER H. MALONEY JR., Administrative Law Judge. On February 14 and 15 and again on March 13, 1984, I conducted a hearing in Washington, D.C., on an unfair labor practice complaint, issued in this case by the Re- gional Director for .Region 5, which alleges that the Re- spondent violated Section 8(a)(1)_ and (3) of the Act by discharging David Stout, a counter representative at its Dulles Airport rental office. On May 16, 1984, 1 issued a decision (Jp-199-84) dismissing the complaint in its en- tirety. No exceptions were filed, either by the General' Counsel or the Charging Party so, on June 1 ,81"1984, the' Board issued a pro forma order, adopting the decision of the administrative law judge and dimissing the com- plaint. Thereafter, on July 16, 1984, , Respondent's, counsel filed with the Board timely application for attorney's fees together with a motion to withhold financial information from public disclosure. In that application, Respondent's counsel seeks an award under the Equal Access to Jus- tice Act, 5 U.S.C. § 504 [EAJAI, for attorneys" fees and' expenses in the amount of $42,087.74, By order dated July 19, 1984, the Board referred the application to me for "appropriate action." As reflected in the initial decision, the alleged discri- minatee, David Stout, had worked for several years as a part-time and often as a full-time counter representative for the Respondent at a small office it'maintains 'near Dulles Airport for the purpose, of engaging in the car rental business. About a, year before Stout's discharge, a, union organizing drive took place throughout the Re- spondent's entire operation in which Stout participated. Among 'other things he served as union observer at a representation election which occurred on June 25 and , 26, 1981. Part of the upshot of this election and the drive which preceded it was another unfair labor practice case,, heard in the summer of 1982 by Administrative Law Judge Stanley Ohlbaum, about the time that Stout was, discharged. Stout played no part in the hearing before Judge Ohlbaum However, in this case, Judge Ohlbaum found that the Respondent had violated Section 8(a)(1) and (3) of the Act by discriminatorily discharging the leader of the organizing drive and by engaging in other acts which constituted independent violations of Section 8(a)(1) (JD-415-82). This case is still pending before the Board on exceptions, which were "filed in the fall of 1982. As more fully set forth in my initial decision, Stout, was not formally discharged. He was scheduled to take a leave of absence to go to summer school about the same' time that a massive defalcation was uncovered at the Re- spondent's Dulles Airport office. In the course of the in- vestigation, two individuals with whom Stout had worked closely were discharged and a third was trans- ferred to another facility. When Stout was scheduled to return to work 'late in the summer, he was denied rein- statement for reasons which the' Respondent later admit- ' ted were pretextual. The Respondent' contended, and I found, that Stout was not discharged for union activities but because the Respondent felt that he was guilty of negligence in the safeguarding of company funds. How- ever; no conclusive evidence was uncovered pointing to criminal activity on his part. The fact that a respondent prevails at an unfair labor practice hearing dose not automatically entitle it to col- lect attorney's fees and expenses from the General Coun- sel. The controlling standard, to determine if fees and ex- penses should be awarded to a prevailing respondent is set forth in the EAJA and in the Board's Rules and Reg- ulations, Section 102.144(a): 277 NLRB No. 129 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An eligible applicant any may receive an award for fees and expenses incurred in connection with an adversary adjudication or in connection with a sig- nificant and discrete substantive portion of that pro- ceeding, unless the position of the General Counsel over which the applicant has prevailed was substan- tially justified. The burden of proof that an award should not be made to an eligible applicant is on the General Counsel, who may avoid an award, by showing that its position in the proceeding was rea- sonable in law and fact. Since the enactment of the EAJA and the promulgation of these regulations, what is reasonable in law and fact has been the subject of numerous Board decisions, most of which have been cited by the parties in briefs which have been filed. In applying this standard to the case at hand, mention should be made of a preliminary or subsidiary argument advanced by the Respondent in furtherance of its conten- tion that the General Counsel's position was unreason- able in fact and law and that a complaint should never have been issued. Respondent points out correctly that the unfair labor practice charge filed with Region 5 was originally dismissed and that no complaint was issued until the Charging Party took an administrative appeal to the Office of Appeals, which the General Counsel main- tains for the purpose of examining appeals from the dis- missal of charges. It was the General Counsel's office, not the Regional Director, who directed the issuance of the complaint, and from that fact the Respondent argues that an inference should be drawn that the basis of the complaint was unreasonable in fact or in law. I draw no such inference. The National Labor Relations Act imposes the duty of prosecuting unfair labor practices on the General Coun- sel. Regional Offices routinely issue such complaints but only as delegates of the General Counsel. In order to maintain a uniformity of policy and practice throughout the United States, the General Counsel permits appeals from adverse determinations on the issuance of com- plaints to be reviewed by a central office to insure that a national labor policy is uniformly administered. I can draw no inference as to the merits or the reasonableness of a case from the refusal of the Regional Director to issue a complaint, any more than I can draw a contrary inference from the decision of the General Counsel to proceed. Indeed, if the disagreement between the Re- gional Office and the Office of the General Counsel sug- gests anything at all, it suggests that the case in question was close enough so that different officials charged with the administration of the Act could reasonably disagree on its merits. The General Counsel has no obligation to restrict the issuance of complaints to sure "winners." The decision to give Stout his day in court in a close case, rather than snuff out his rights on the basis of an ex parte determination at a Regional Office agenda, is not grounds for awarding attorney's fees, even though it turned out, after ,a litigated hearing, that the Regional Director was right and the Office of Appeals was not. One of the factors to be examined in passing on an ap- plication for attorney's fees is whether the General Counsel's position was reasonable in law. The case at hand is a garden variety of a discharge case and proceed- ed on no new or untested legal theory. Indeed, much of this Agency's work is devoted to .just this kind of dis- pute-a contention by the General Counsel that a union activist was discharged for union activities and a con- trary contention that he was discharged for one or more just causes, most of which have been litigated so fre- quently that they could form the substance of a litigation checklist. If the Respondent's claim has any merit at all,-it must rest on the contention that the General Counsel's posi- tion was unreasonable as a matter of fact. In assessing a discriminatory discharge allegation, the key question is the motive which prompted the employer to remove from its payroll the individual on whose behalf the com- plaint has been issued. Except in the rarest of instances, the determination must be made either on crediting the testimony of one side and discrediting the testimony of the other, or on an evaluation of conflicting inferences drawn from undisputed evidence. Factors normally at issue are animus on the part of the respondent, company knowledge of the discriminatee's union activities, and a causal relationship between the employer's improper motive and the act of discharge. Subsidiary questions often arise in arriving at this determination. Timing bears on causality, and whether other employees similarly situ- ated are similarly treated may also be pertinent, but these questions are secondary ones and are not essential ele- ments of a prima facie case. Another subsidiary element sometimes found in a discriminatory discharge case is the fact that a respondent has shifted its ground, giving a dis- criminatee one reason for the discharge and later telling the Board something else. From such dissembling the Board often draws the conclusion that neither reason is the real reason and that the real reason is a discriminato- ry one. This case contains such a shifting of position on the part of the Respondent but, in its defense, the Re- spondent was sufficiently able to explain its dual position so that an adverse inference was not drawn In this case, Stout was a union activist, sticking his head above the crowd to the extent of serving as the Union's observer at a representation election. The Re- spondent made repeated collateral displays of animus, both in this case and in the earlier one, going as far as discharging the in-house leader of the organizing drive. The fate of a fellow employee who sympathized with the union was brought to Stout's attention by a supervisory warning, imparted not long before Stout's discharge, concerning what could and would happen to Union sym- pathizers in the Respondent's organization. Such facts, presented by the General Counsel in support of the com- plaint, could have warranted a finding that Stout had been discharged, as alleged. Where the General Counsel fell short was that infer- ences of proper' motive, derived from the Respondent's defense, were sufficiently strong to overcome counter- vailing inferences which could have been drawn from the facts supporting the General Counsel's case. Such a dispute amounts to a triable case and a reasonable factual basis on which to issue a complaint. BUDGET RENT-A-CAR 1155 In light of these findings and conclusions, it is unneces- sary to pass on the General Counsel 's other contentions, including his very serious argument that the Respondent failed to comply with Section 102. 147(f) of the Rules and Regulations which requires "[e]ach applicant [to] . . . provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates." (Em- phasis added.) I note in passing that the financial state- ment offered by the applicant is nothing more than a generalized affidavit signed by accountant Max Rein- stein, father of the protagonist in the discharge scenario which unfolded in May 1982 at the Dulles Airport office. The record in the unfair labor practice hearing disclosed that Reinstein agreed to make the Respondent whole for any losses incurred by his son 's misconduct, so it clearly appears from the record that he is an interested party in any proceeding designed to recoup 'expenses for litigation growing out of the events of May through August 1982. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed' ORDER The application of the Respondent for attorneys' fees and expenses under the Equal Access to Justice Act is denied and the confidential financial statement attached to and incorporated in the Respondent 's application for reimbursement of fees and expenses is sealed and with- held from public disclosure pursuant to the provisions of Section 102.147(g) of the Board's Rules and Regulations. i 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.