Country Epicure, Inc.

COUNTRY EPICURE, INC. Country Epicure, Inc. and Anthony Astrologo. Case 2-CA-20837(E) 30 April 1986 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 18 December 1985 Administrative Law Judge Joel P. Biblowitz issued the attached supple- mental decision . The General Counsel filed excep- tions and a supporting brief, and the Applicant filed cross-exceptions and a supporting brief. 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 only to the extent consistent with this Supplemental Decision and Order. The complaint in the underlying proceeding al- leged that the Applicant violated Section 8(a)(3) and (1) of the Act by discharging Anthony Astro- logo and preparing and maintaining documentation regarding Astrologo's work attendance because of his union activities. On 24 September 1985 the Board' adopted the judge's finding that the General Counsel had not established a prima facie showing that protected conduct was a motivating factor in the Applicant's decision to discharge Astrologo. The judge found that there was no evidence that the Applicant was aware that Astrologo had engaged in union activi- ties until after his discharge. The judge also found that the attendance documentation had no effect on the decision to discharge Astrologo, and that it was not unreasonable for the Applicant to record As- trologo's tardiness after he lied about his where- abouts. The Board therefore adopted the judge's recommended Order and dismissed the complaint. In his supplemental decision the judge noted that the mere fact that the General Counsel has failed to establish a prima facie case does not necessarily entitle the Applicant to fees. Enerhaul, Inc., 263 NLRB 890 (1982). The judge further stated, how- ever, that for the General Counsel's position to be substantially justified under the Equal Access to Justice Act, the General Counsel must present evi- dence which, if credited by the factfinder, would constitute a prima facie case of unlawful conduct. Natchez Coca-Cola Bottling Co., 269 NLRB 877, 878 (1984). The judge found that even having cred- 1 276 NLRB 436 (1985) 807 ited Astrologo's testimony, the General Counsel failed to establish that the Applicant had knowl- edge of Astrologo's union activity. The judge therefore concluded that the General Counsel's po- sition was not substantially justified and awarded the Applicant $13,068.73 in fees. In her exceptions the General Counsel contends that she was substantially justified in pursuing this case because the case turned on inferences to be drawn from the facts. Under established Board law,2 circumstantial evidence is sufficient to justify an inference of knowledge. The General Counsel argues that here there was a genuine issue whether knowledge would be inferred from the facts and that she was substantially justified in placing the issue before the Board rather than resolving the issue administratively. We agree. The facts of the underlying case are as follows. In June 1984,3 Astrologo, Applicant's only me- chanic, discussed the need for a union with his im- mediate supervisor, Bob Grigas. Grigas referred Astrologo to his brother, a union organizer. Astro- logo arranged for a union representative to meet the employees, and invited the employees to a party at his house. About 15 employees (including Bob Grigas) attended. Allen Grigas, the union or- ganizer, spoke at the meeting and handed out au- thorization cards. The employees signed the cards and gave them back to Grigas. About 4 days later, Allen Grigas went to the Applicant's facility and told Astrologo that the cards were invalid because of the presence of a management official at the meeting. Astrologo held another meeting at his house, at which the employees again signed cards. The employees gave the cards to Astrologo who brought them to the Union. On 3 July the Union demanded recognition as the collective-bargaining representative of the Ap- plicant's drivers, warehousemen, and mechanics. The Applicant replied on 6 July, stating that it had a good-faith doubt of the Union's majority status and suggested that the Union file a petition with the Board. The Applicant did not hear from the Union again until 1 September when it received a copy of the Union's petition. On 18 July Astrologo left work to get parts at a Datsun dealer. On the way, he saw the Applicant's driver, Krell, at a gas station. Astrologo knew that Krell's route required him to take Route 684 so he waited for Krell at the entrance ramp. When Krell arrived, Astrologo flagged him down and got into 2 See, e g , Dr Frederick Davidowitz, 277 NLRB 1046 (1985), Superior Micro Film Systems, 201 NLRB 555 ( 1973), enfd mem 485 F .2d 681 (3d Cit. 1973) ' All dates are in 1984 unless otherwise indicated 279 NLRB No. 104 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krell's truck. They discussed the condition of the trucks for approximately 20 minutes. Unbeknown to Astrologo, the Applicant's attor- neys were driving on Route 684 and noticed the Applicant's truck parked on the entrance ramp. They saw two people in the truck and a car parked behind the truck. They noted the truck number and the car's license number. When they arrived at the Applicant's facility, they reported their observa- tions. That evening, the Respondent's president, Stern, and vice president, Schneider, called Krell into the office and asked him what he had been doing on the ramp. Krell said Astrologo had flagged him down, and that they were "just shoot- ing the breeze." The next morning Schneider asked Astrologo where he had been the previous morning. Astro- logo said he was picking up parts. Schneider told him his car had been seen on the entrance ramp. Astrologo said he had loaned his car to his brother and that he had taken a truck to the Datsun dealer. When Astrologo was told that Krell had said As- trologo had flagged him down, Astrologo admitted lying. Schneider asked him what was going on and, according to Schneider, Astrologo said, "Well you know it was all that Union shit." Astrologo testi- fied that he answered, "It wasn't anything to do with the Union." Schneider said if it had anything with the Union he did not want to hear about it. Schneider said that lying was a serious offense and he would speak to Stern when he returned from a business trip. Beginning about 25 July, the Applicant's plant manager started documenting Astrologo's attend- ance and placing memoranda in Astrologo's per- sonnel file. On 25 July Astrologo approached Stern and told him that he would be in trouble if he lost his job because he was on probation for threatening to run down pickets at his previous job. On 27 July Astrologo was terminated for lying about his whereabouts. Schneider and Stern testi- fied they were not aware of the attendance memo- randa in Astrologo's file when they discharged him. It is undisputed that until July the Applicant had been satisfied with Astrologo's performance and had given him a raise and a bonus. He had re- ceived no written warnings. The judge found that there was no evidence that the Applicant was aware of Astrologo's union ac- tivities before discharging him, and he noted that Stern and Schneider testified that they assumed As- trologo was antiunion because of his 25 July state- ment to Stern that he had previously threatened pickets. Supervisor Grigas never said anything about the Union to Stern or Schneider and never identified the union supporters. Stern and Schnei- der testified that between 3 July and 1 September when they received the Union's petition, they thought the union drive had expired. We find, contrary to the judge, that the General Counsel was substantially justified in-believing that the circumstantial evidence could justify an infer- ence that the Applicant knew about Astrologo's union activities. Most significantly, one of the Ap- plicant's supervisors, Bob Grigas, knew of Astrolo- go's union activities. In addition, the supervisor's brother was the union organizer Astrologo had contacted, and he came to the Applicant's facility to discuss the authorization cards with Astrologo. Moreover, Astrologo mentioned the Union to Schneider after he admitted lying about his where- abouts. When asked wat was going on, Astrologo said, "It wasn't anything to do with the Union."4 Astrologo's denial of involvement in union activity without being asked about the Union could have caused suspicion that the Union actually was a sub- ject of discussion on the entrance ramp. Further- more, shortly after this discussion the Applicant began to document Astrologo's attendance, activity which could reasonably be construed as the Appli- cant's building a record against Astrologo for future adverse action. Also, the Applicant failed to discipline Krell for the entrance ramp incident, and this disparate treatment of Astrologo could reason- ably be interpreted to indicate possible unlawful motivation. Finally, the following factors could further support an inference of knowledge: the timing of the discharge, about 3 weeks after the Applicant was made aware of the organizing drive; the fact that Astrologo was the Applicant's only mechanic, a classification specifically mentioned in the Union's 3 July demand for recognition; and the fact that until the events in this case Astrologo had been a valued employee who had recently been given a raise and a bonus, and had not received any written warnings. We believe that all these circumstances, particu- larly the knowledge of Supervisor Grigas,5 could have justified an inference of employer knowledge and the finding of a prima facie case. Although the judge and the Board in the underlying case did not 4 Schneider testified that Astrologo said, "Well you know it was all that Union shit " The judge interpreted this statement to indicate that As- trologo was against the Union However, we believe the statement is am- biguous and could be interpreted to be an admission that the Union had been discussed on the entrance ramp 5 See Dr Phillip Megdal, 267 NLRB 82 (1983) ("Ordinarily, we would impute a supervisor's knowledge of an employee 's union activities to the employer However, when it has been affirmatively established as a matter of fact that a supervisor who learned of union activities did not pass on the information to others, we are unwilling to find that knowledge was conveyed as a matter of law ") Here, it was not until the hearing that it was affirmatively established that Grigas did not pass on his knowledge to any other of the Applicant's officials COUNTRY EPICURE, INC. infer knowledge because of the credited denials of the Applicant's witnesses, the General Counsel was substantially justified in bringing the issue before the judge and the Board.6 Accordingly, we shall deny the application for fees and expenses.7 ORDER It is ordered that the application of the Appli- cant, Country Epicure, Inc., Katonah, New York, for an award under the Equal Access to Justice Act is dismissed. 6 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 Rep 99-120 at 9 (1985) In light of our ultimate disposition of the case, we find it unnecessary to pass on the Applicant's cross-exceptions concerning the amount of fees to which it claims it was entitled Mary L. Bulls, Esq., for the General Counsel. Clifford R. Oviatt, Esq., for the Respondent Applicant. SUPPLEMENTAL DECISION AND ORDER JOEL P. BIBLOWITZ, Administrative Law Judge. Coun- try Epicure, Inc., the Applicant, in an application filed 23 October 19851 pursuant to the Equal Access to Jus- tice Act, Pub. L. 96-481 Stat. 2325 and Section 102.143 of the Board's Rules and Regulations, seeks $17,518.73 in fees and expenses incurred in defending the unfair labor practice complaint in Case 2-CA-20837 (276 NLRB 436 (1985) alleging, inter alia, that Applicant discharged em- ployee Anthony Astrologo due to his activities on behalf of Teamsters Local 456, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers of America (the Union). The case was heard by me on 1 May 1985; both sides filed briefs and my de- cision issued 27 June 1985. The Board's Decision and Order issued on 24 September 1985, without modifica- tion In my decision I found that the General Counsel had not sustained her initial burden under Wright Line, 251 NLRB 1083 (1980), of establishing a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the Employer's decision to discharge Astrologo. This was based on my finding that there was no evidence that Applicant was aware that As- trologo had engaged in activities on behalf of the Union until January 1985, long after his discharge. In this regard, I found that based on two uncontradicted con- versations that Astrologo had with Respondent' s agents, Applicant had good reason to believe that Astrologo was, in fact, antiunion. The strongest evidence support- ing the General Counsel's case was the timing of the dis- charge, about a month after he contacted the Union and had two parties at his house where his fellow employees met a union organizer, and about 3 weeks after Appli- i The Board's Order, referring the application to me for appropriate action, is dated 24 October 1985 809 cant received notification from the Union stating that it represented a majority of Applicant's employees and de- manded recognition . The General Counsel made two ad- ditional arguments which I rejected : that no action was taken against John Krell, the employee whom Applicant observed Astrologo talking to during working time, and that Astrologo's excellent work record prior to 18 July 1984 supports its allegation that his actions did not war- rant discharge. However, I found that Krell's situation is different from that of Astrologo as he admitted his pres- ence with Astrologo at the time involved, and the nature of Astrologo's job involved few or no restrictions on his movement; when Applicant learned that he had lied to them, the trust required for such a relationship was broken. Section 504(a)(1) of EAJA provides for an award to be made to a prevailing party unless "the position of the Agency as a party to the proceeding was substantially justified." This last term was defined by Congress as: The test of whether or not a government action is substantially justified is essentially one of reason- ableness. Where the government can show that its case had a reasonable basis both in law and in fact, no award will be made.2 The Government's failure to prevail does not raise any adverse inferences in-this regard: The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the government to establish that its decision to litigate was based on a substantial probability of prevail- ing.3 The mere fact that the General Counsel has failed to establish a prima facie case does not, of itself, entitle Ap- plicant to fees. Enerhaul, Inc., 263 NLRB 890 (1982). Additionally, if a credibility finding was crucial to the determination in the underlying matter, fees should like- wise not be granted. Wolf Street Supermarkets, 266 NLRB 665 (1983). However, as stated by the administra- tive law judge in Natchez Coca-Cola Bottling Co., 269 NLRB 877 at 878 (1984): [ijor the General Counsel's position to be substan- tially justified within the meaning of Section 102.144(a) the General Counsel must present evi- dence which, if credited by the factfinder, would constitute a prima facie case of unlawful conduct. In the underlying matter herein no credibility finding was necessary; I credited Astrologo and Applicant's wit- nesses. Even having credited Astrologo's testimony, I found that the General Counsel had not sustained her burden under Wright Line as she failed to established knowledge of Astrologo's union activity, and, in fact, I 8 S Rep 96-253, 96th Cong 1st Sess at 6, H Rep 96-1418, 96th Cong 2d Sess at 10 3 S Rep 96-253, supra at 7, H Rep 96- 1418, supra at 11 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found Applicant was justified in assuming that he was antiunion. I therefore find that the General Counsel's po- sition was not substantially justified and that Applicant is entitled to fees herein. Applicant requests reimbursement in the following amounts: Disbursements-$1,848.73 Counsel fees : Clifford R. Oviatt, Esq. 44.5 hours at $175 an hour-$7,787.50 Counsel fees: Jeffrey L. Snyder, Esq. 72.5 hours at $75 an hour-$5,437.50 Counsel fees in pursuing EAJA claim: 44.5 hours at $55 an hour-$2,445.00 Total $17,518.73 Applicant alleges "that the extended and unjustified proceeding Petitioner was forced to endure justifies lift- ing the $75.00 per hour cap on fee awards ." The sole jus- tification alleged by Applicant is "the extended nature of this proceeding." The General Counsel objects to Appli- cant's requests for fees in excess of $75 an hour as un- justified. The Act, 5 U.S.C. 504 (b)(1)(A), provides that "attor- ney or agent fees shall not be awarded in excess of $75 per hour, unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee." Sec- tion 102. 145 of the Board's Rules and Regulations limits recoverable fees to $75 an hour and Section 102.146 re- quires a petition requesting higher fees to state which of the above factors are applicable . In Underwood v. Pierce, 761 F.2d 1342 (9th Cir. 1985), the court ruled that in de- termining whether "special factors" exist, it is proper to apply the factors listed in Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975). These factors include the novelty and difficulty of the issues involved and the skill required to perform the services properly, the time and labor required , and the experience, reputation, and ability of the attorneys. Although Oviatt is an extremely capa- ble and experienced attorney , the underlying case herein involved a rather basic 8(aX3) allegation , which was con- cluded in less that 1 day. This case presented no novel issues, nor did it contain any other factors justifying a fee in excess of $75 an hour. Applicant's request is therefore granted, except that the counsel fees of Clifford R. Oviatt is reduced from $7787.50 to $3337.50 and the total amount awarded shall be reduced to $13,068.73. [Recomended Order omitted from publication.]