Supershade Corp.

SUPERSHADE CORP. Supershade Corporation and Edivia Perez. Case 22- CA-13029(E) 17 July 1986 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 27 December 1985 Administrative Law Judge Steven B. Fish issued the attached supple- mental decision. The Applicant filed 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 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 recommended Order of the administrative law judge is adopted, and the application of the Applicant, Supershade Corporation, Perth Amboy, New Jersey, for attorney's fees and expenses under the Equal Access to Justice Act is denied. 1 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) J. Michael Lightner, Esq., for the General Counsel. Chuck Ellman, Esq. (Industrial Labor Relations Consult- ants Inc.), of East Orange, New Jersey, for the Re- spondent. SUPPLEMENTAL DECISION (Equal Access to Justice Act) STEVEN B. FISH, Administrative Law Judge. On 30 May 1985, no statement of exceptions having been filed with it, and the time allowed for such filing having ex- pired, the Board issued an order adopting my recom- mended Order dismissing the complaint in its entirety. On 23 July 1985 Supershade Corporation (Respondent or Applicant) filed an application with the Board for an award of fees and expenses under the Equal Access to Justice Act (EAJA). About 19 August 1985 the General Counsel filed a motion to dismiss the application. The General Counsel relies on two principal grounds in support of its motion: 1. The application is deficient in that it fails to demon- strate that Respondent meets all the eligibility require- ments to apply for an award of fees and other expenses under EAJA. 1213 2. The General Counsel's position in the underlying unfair labor practice hearing was substantially justified. On 26 August 1985 Applicant filed a response to the General Counsel's motion to dismiss. Section 102.44(a) of the Board's Rules and Regula- tions, which is consistent with Section 504(aX2) of the EAJA, provides for the awarding of fees to a successful litigant in a Board proceeding, "unless the position of the General Counsel over which the applicant has prevailed was substantially justified." The Board has consistently held that for the General Counsel's position to be substantially justified, "the Gen- eral Counsel must present evidence which, if credited by the fact finder would constitute a prima facie case of un- lawful conduct by the Respondent." SME Cement, 267 NLRB 763 (1983); Jim's Big M, 266 NLRB 665 (1983); Bosk Paint & Sandblast Co., 270 NLRB 514 (1984); Union Carbide Building Co., 276 NLRB 1410 (1985). In applying the above criteria to the facts in the in- stant case, I conclude that the General Counsel has more than established that she has met her burden in this regard. The General Counsel presented evidence, as set forth in detail in my underlying decision, though the testimony of Charging Party Edivia Perez, substantially corroborat- ed by fellow employee Lucrecia Cruz. This testimony, if fully credited, would have estab- lished the following: On 1 February 1984 a number of employees of Respondent, including Perez, discussed their dissatisfaction with the current representation by the Union representing such employees, particularly the failure to see a copy of the contract and not knowing what benefits the employees were entitled to at that time. A petition was then prepared by another employee, which read, "[W]e don't want the Union, because we have not seen the Union contract." Perez was the first employee to sign the petition, which was then circulated from employee to employee, eventually being signed by 14 such employees. The petition was then returned to Perez, who then showed it to Louis Schwartz, Respondent's chief operat- ing officer. Schwartz commented that he "didn't care what we were doing because he had 100 people to work there." Perez then asked Schwartz to call up the Union and ask them to come to the shop to speak to employees, which Schwartz agreed to do, and reported back to em- ployees that a union representative would be at the fac- tory on Friday, 3 February 1984. The next day, 2 February 1984, Supervisor Raschke told her that other employees had told Nicholas Schwartz, Respondent's general manager, what she had done the day before. Shortly thereafter, Nicholas Schwartz approached her at work, and after ascertaining that she was not feeling well, told her to go home. Perez asked why Schwartz was sending her home. Schwartz replied that she had been collecting signatures, and that she was not supposed to do that in his place because it was business. Perez then informed Schwartz that she was not the only one who signed the paper and he again ordered her to go home. When she did not move, Schwartz grabbed 280 NLRB No. 131 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her by the arm, escorted her out of the premises, and again told her to go home. She replied that she was not going home, but to the unemployment office, and left the premises. The foregoing evidence, if credited, would have estab- lished that Perez engaged in protected concerted activity by discussing with other employees their dissatisfaction with the Union, and becoming involved with a petition signed by employees memorializing such dissatisfaction. Perez was the employee who presented the petition to Louis Schwartz, thereby establishing Respondent's knowledge of her participation in such activity. Indeed knowledge is further demonstrated by the fact that Perez was the first name appearing on the petition, and by the further testimony of Perez that Supervisor Raschke told her that other employees informed Nicholas what she had done. I Animus towards the concerted activity of Perez by Respondent would also have been proven by Louis Schwartz' statement to Perez on being handed the peti- tion, implying the possibility of discharge of employees involved with such petition. Moreover, and most signifi- cantly, Nicholas Schwartz' comments to Perez when she asked why he told her to leave that she had been collect- ing signatures, and that she was not supposed to do that in his place, establish not only animus towards her con- certed activities, but also establish a connection between such activity and Respondent's actions in terminating her. Finally, the timing of Respondent's discharge of Perez,' coming a day after her exercise of protected con- certed activities, would be further demonstrative of the unlawfulness of Respondent's conduct. Thus, I am persuaded based on the above that the General Counsel presented ample evidence, which if credited would have established a strong prima facie case of unlawful conduct by Respondent. Applicant argues, however, that the General Counsel should have made her own credibility resolution, adverse to Perez, and dismissed the charge prior to issuance of complaint. In this regard, Applicant contends that the General Counsel had various objective sources of evi- dence before it, evidence that I relied on in making my credibility resolutions, and that the General Counsel's failure to rely on these factors to dismiss this charge es- tablishes that she did not have substantial justification for her issuance of a complaint. In this connection, Applicant cites the New Jersey De- partment of Labor Unemployment Insurance decision fording that Perez was not discharged and a petition signed by 14 employees stating that Perez left the job of her own free will and was not fired. Moreover, Appli- cant also notes that testimony of other fellow employees, as well as the union representative, along with Respond- ent's supervisors, contradicted Perez' testimony particu- larly regarding to the crucial issue on which I decided ' The latter testimony constitutes an admission by Respondent and is therefore not hearsay. _ There can be little doubt that in the circumstances herein, Schwartz' telling Perez to go home, coupled with his additional remarks about the signatures, and his escorting her out the door, would constitute a dis- charge. the instant case, of whether Perez was discharged or she quit. Finally, Applicant stresses the fact that the General Counsel's corroborating witness, Lucrecia Cruz, was a best friend of Perez and resided in the same house with her. Additionally it notes that Cruz was not fluent in English, and her testimony consisted of her version of a conversation that she overheard between Perez and Nicholas Schwartz, which was admittedly conducted solely in English. The General Counsel argues on the other hand that a bona fide credibility resolution was presented by the evi- dence, which could only appropriately be ruled on by an administrative law judge. There are some Board decisions that suggest that for purposes of assessing EAJA awards it is impermissible to evaluate in any respect the propriety of the General Counsel's credibility determinations. See, for example, Charles H. McCauley Associates, 269 NLRB 791 (1984); Derickson Co., 270 NLRB 516, 519 (1984). However, I do not believe that the Board means to preclude any in- quiry into the subject of whether the General Counsel was "substantially justified" in presenting credibility issues to the judge . There are circumstances when it is appropriate for the General Counsel to make a credibil- ity resolution during the investigative stage of the proc- essing of charges.3 I believe that there are also some cir- cumstances, although in my view quite limited, where the failure of the General Counsel to do so, and accord- ingly to dismiss charges, can warrant a fording that the General Counsel did not have substantial justification for the issuance of a complaint based on such charges. The Board in Union Carbide Building Co., 276 NLRB 1410 (1985), quoted approvingly the language of Admin- istrative Law Judge Joan Weider, in regarding a possible standard for measuring the General Counsel's obligations in this respect. The judge found that the credibility issues "were not of such patent clarity as to be readily suscepti- ble of resolution without resort to the crucible like test- ing of an evidentiary hearing. None of the key witnesses was shown to be patently or obviously incredible prior to the issuance of complaint." Id. at 1412. The Board, as noted, quoted Judge Weider's language in affirming her decision that the General Counsel's position was substan- tially justified. Id. Thus it is appropriate as suggested by Union Carbide, supra, to analyze whether the credibility issues presented herein "was of such patent clarity" to be readily suscep- tible of resolution without a hearing . I am convinced that it was not. I note initially that in my underlying decision, in making my credibility resolutions adverse to Perez, and finding that she had quit her job, I made specific refer- ence to comparative testimonial demeanor of Perez vis-a- vis witnesses called by Respondent. I also made in this connection specific findings that the testimony of Perez as well as that of her supporting witness Lucretia Cruz, was "disjointed and imprecise." These kinds of findings s See NLRB Caaehandhng Manual , ULP, sec. 10060. SUPERSHADE CORP. can obviously only be made at a hearing, and not done administratively by the Region. Moreover, I also relied on various inconsistencies be- tween Perez' testimony on direct testimony and on cross- examination, and what I felt was a contrived explanation by her on cross-examination of a minor inconsistency on her unemployment application form . Once again these are factors peculiarly cognizable in a formal hearing. Applicant argues that the Region should not have relied on the testimony of corroborating witness Cruz, because of her lack of understanding of English and her friendship with Perez. I do not agree. First of all the record discloses that Lucrecia Cruz was an employee of Respondent at the time of the hearing. The Board has long held that testimony given by such employees ad- verse to his or her current employer is entitled to consid- erable weight and not likely to be false . Bohemia, Inc., 266 NLRB 761, 765 (1983); Shop Rite Supermarket, 231 NLRB 500, 505 (1977); Georgia Rug Mill, 131 NLRB 1304, 1305 (1961). Thus, the Region was entitled to con- sider this factor in its deliberations. Concerning Cruz' lack of fluency in English, I note that the extent of her lack of understanding of English was demonstrated primarily on cross-examination by Re- spondent . Bosk Paint, supra at 515 ; Union Carbide, supra at 1412. Moreover, even her limited fluency in English did not mandate a fording that she could not have under- stood a few significant words, spoken by her employer. Indeed it is not unusual for such a witness to be able to accurately testify to hearing English words, although they might not be fully fluent in English. Finally, Cruz also testified in support of Perez that Nicholas Schwartz grabbed her by the arm and escorted her out of the premises. Such testimony consisting purely of Cruz' ob- servations obviously is not affected by her inability to understand English. Applicant also points to my reliance on the unemploy- ment decision fording that Perez had quit, as well as the petition signed by the employees of Respondent attesting to that fact. Applicant urges that the General Counsel had this objective evidence before it and should have placed significant reliance on these items and dismissed the charges. I again do not agree. As for the petition, I noted in my decision, that although hearsay it could be relied on in certain circumstances . I concluded that it 1215 was appropriate to rely on the petition in the circum- stances of this case, but I specifically mentioned that I do so reluctantly, in view of the fact that the petition was prepared and circulated at Nicholas Schwartz' direction, and contained the signature of Supervisor Raschke. I also noted that I relied on such evidence only because it was corroborative of other testimonial evidence that I previously had credited. Concerning the unemployment decision, while I also placed some reliance on that decision as supportive of my findings, I noted that such decisions are not control- ling as to findings of fact or conclusions of law. More- over that decision appeared to place significant reliance on the petition, described above, and the record does not disclose whether the judge in that case was aware of the role played by Respondent's officials in connection with the instigation and preparation of such petition. Accordingly, based on the foregoing analysis of my underlying decision and the record herein, I find that the credibility issue presented herein was not of "such patent clarity as to be readily susceptible of resolution without resort to the crucible like testing of an evidentiary hear- ing." Union Carbide, supra. Indeed I fmd in full agreement with the contention of the General Counsel, that a bona fide and substantial credibility issue was presented in the instant hearing, and as noted had I credited the General Counsel's witnesses, a prima facie case of unlawful conduct by Respondent would have been established. See also Patrick & Co., 277 NLRB 477 (1985). Therefore, I find that the General Counsel's position in this proceeding was substantially justified. Having so found, I issue the following recommended' ORDER The General Counsel's motion to dismiss Applicant's request for the award of fees and expenses under the Equal Access to Justice Act is granted, and the request by Applicant for the award of fees is denied. * 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- Po.