Raytown United Super, Inc.

RAYTOWN UNITED SUPER Raytown United Super, Inc. and United Food and Commercial Workers Local Union 576. Case 17-CA-1294(E) July 29, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 20, 1988, Administrative Law Judge Claude R. Wolfe issued the attached supplemental decision. The Respondent 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 decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions2 and to adopt the recommended Order. ORDER IT IS ORDERED that the application of the Appli- cant, Raytown United Super, Inc., Raytown, Mis- souri, for an award under the Equal Access to Jus- tice Act is dismissed. ' We find it unnecessary to rely on the judge's finding that the General Counsel was substantially justified because she prevailed before the judge in the unfair labor practice stage of the proceeding 2 The Applicant argues that the General Counsel was not substantially justified in pursuing the complaint because the Board, in finding there was no agreement on the contract's term, relied on the Union's own ne- gotiating notes, which clearly rebutted the General Counsel's case We disagree The context in which the Board referred to the Union's negoti- ating notes makes clear that it was the Respondent's testimony coupled with the notes which led the Board to conclude the contract's term was unresolved The Board did not indicate that it would have reached the same result on the basis of the Union's notes alone and it may not have if the contract term was the only unresolved issue, particularly in light of the credited testimony of the Union's witnesses SUPPLEMENTAL DECISION CLAUDE R. WOLFE, Administrative Law Judge. On September 8, 1986, I issued a decision in this proceeding finding that Raytown United Super, Inc. (Raytown) and the Union orally agreed to all substantive contract terms by September 25, 1985, and Raytown therefore violated Section 8(a)(5) of the Act by refusing to execute a col- lective-bargaining agreement embodying those terms. Raytown filed exceptions The National Labor Relations Board then issued its decision on January 29, 1988,1 find- ing Raytown had not violated the Act because the par- ties had not reached agreement on the contract term or a 1287 NLRB 1151 217- seniority provision, and therefore did not reach full agreement on a contract On February 24, 1988, Raytown filed an application for award of attorney's fees and expenses under the Equal Access to Justice Act, Pub. L. 96-481, 94 Stat 2325 and Section 102.143 of the Board's Rules and Regu- lations, contending that the General Counsel was not substantively justified in proceeding to complaint and litigating the case. The Board referred the application to me on February 24, 1988, for appropriate action. On March 29, 1988, counsel for the General Counsel filed a motion to dismiss the application because the General Counsel's position in the underlying unfair labor practice was at all times substantially justified. Raytown opposes the motion. Raytown argues as follows- From the outset of the investigation, it was or should have-been clear that there had been no agreement between the parties on the length of the alleged contract or on a seniority proposal made by the Company. As noted in the Board's decision, the Union's own bargaining notes confirmed the absence of an agree- ment on the critical issue of contract duration. All that General Counsel could argue in her brief (cita- tion omitted) was that the reference in the Union's bargaining notes was likely "either a mistake . . . or simply a reflection of another attempt by Kays to toss in a red herring and go back on an earlier agreement." As to the former, it was not substan- tially justified for General Counsel to have proceed- ed on a complaint when the Charging Party's own notes reflected no agreement for the term of the al- leged agreement. As to the latter, General Counsel's argument that the Company was seeking to back- track on earlier agreements was inconsistent with the theory of alleged violation on which the case was tried, as noted by the Board in its decision. [A]s found by the Board, the case does not turn on disputed issues of credibility. The Board held: It is clear that the parties had not agreed on at least two material terms This had been the employer's position from the outset of the Regional investigation. General Coun- sel was in possession of the Union's own bargaining notes substantiating the Company's position. The Board held that it was clear no agreement was reached, and General Counsel's position to the con- trary was not substantially justified. Raytown refers to the notation in the Union's negotiat- ing notes for September 17 reading "Term-Date of rat.- 2/28/87." The Board pointed to this as part of the evi- dence supporting its conclusion that Raytown on Sep- tember 17 proposed the effective date of the contract to be the date of its ratification, but the Board rejected Raytown's contention that the evidence showed "it was resolved" on Septemeber 17 that the effective date would be the ratification date. If, as Raytown initially 290 NLRB No. 31 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD argued in its exceptions to my decision, the union notes and testimony showed the parties had agreed on Septem- ber 17 to make the collective-bargaining agreement effec- tive on the date of ratification, there would have been no open issue on the contract term on September 25. Now Raytown argues it should have been clear from the outset of the precomplaint investigation that the Union's September 17 notes confirmed the absence of any agree- ment on the contract term Thus we have the Board viewing the note as evidence of a Raytown proposal on September 17, and Raytown viewing it first as proof of a September 17 agreement on the effective date of contract and second as proof of no agreement . That the note is ambiguous and susceptible of different interpretations ap- pears obvious The General Counsel cannot be faulted for continuing to investigate and to prosecute merely be- cause Costanza's notes are ambiguous. The General Counsel urges, and I find, that the fact the Board's conclusions differ from those of the General Counsel's and my conclusions does not necessarily mean that the General Counsel's prosecution of the case was not substantially justified .2 Keeping in mind that "sub- stantially justified" means "more than mere reasonable- ness,"3 I find, for the following reasons, that the General Counsel's position was substantially justified Raytown correctly notes that the Board found it clear that the parties had not agreed on the term of the con- tract and seniority. That is the law of the case, but that does not mean that no other reasonable inference could have been drawn from the facts I credited Union Repre- sentative Costanza's testimony regarding his September 25, 1985 negotiations with Raytown's president, Kays, wherever their testimony conflicted This determination was not disturbed by the Board. According to Costanza's credible testimony, a complete agreement was reached by the end of this meeting that seniority was agreed to. When one considers this credible testimony together with the written list of unresolved issues presented to Costanza by Kays at the beginning of the September 25 meeting, which does not enumerate term of agreement as an unresolved issue and only notes with respect to se- niority that language was being drafted by Raytown's counsel, it may reasonably be concluded that the General Counsel had a prima facie case that complete agreement was reached. Combine all this with Kay's statement on October 13 that he would not sign the agreement if it had a union-security provision (which he had specifically 2 Bennington Iron Works, 278 NLRB 1087 (1986), Talon, Inc, 277 NLRB 1639 ( 1986), Jim's Big M, 266 NLRB 665 (1983) ' Bennington Iron Works, supra at fn I agreed on September 25 was a settled issue) without pro- test or question of any other portion of the contract the was asked to sign, it is clearly not unreasonable to con- clude term of contract and seniority had been agreed on September 25 What we have in this case is a situation where the Board and Raytown drew certain inferences from the facts leading to conclusions contrary to those drawn by me and the General Counsel. None of these inferences drawn by the parties, the Board, or me are so bereft of reason as to be suject to rejection out of hand. Given the inferences drawn by me and the General Counsel, a find- ing that there was a prima facie case of final agreement is warranted That alone is sufficient to establish that the General Counsel had substantial justification for litigating the issue.4 That the General Counsel did not prevail before the Board does not indicate otherwise S It appears to me that the fact the General Counsel prevailed at the administrative law judge stage should suggest that the General Counsel was substantially justified for proceed- ing as she did from the outset, and certainly was substan- tially justified in proceeding after she prevailed at that stage. As judge King has cogently observed, "Where the General Counsel advances in good faith a close question of law or fact, and thereafter loses, a finding that [s]he was not substantially justified in issuing the complaint would have a chilling effect on the proper pursuit of the duties of the General Counsel to enforce the Act, as the Act so mandates." Here there was a close question of fact susceptible of various reasonable interpretations. Ac- cordingly, when the General Counsel in good faith se- lected one, issued a complaint, and litigated the issue before me, where she prevailed, and the Board, she was substantially justified in so doing. I therefore find that Raytown United Super, Inc. is not entitled to an award under the Equal Access to Justice Act, and issue the fol- lowing recommended? ORDER IT Is ORDERED that the application of Raytown United Super, Inc., Raytown, Missouri, award under the Equal Access to Justice Act be dismissed. 4 Talon, supra at 1641, Enerhaul, Inc, 263 NLRB 890 (1982) b Westerman, Inc, 266 NLRB 799, 800 (1983), and cases cited there, affd Westerman. Inc v NLRB, 749 F 2d 14 (6th Car 1984) 6 Tajon, supra at 1641 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