Jansen Distributing Co

JANSEN DISTRIBUTING CO 801 Ralph M Smith Jr d/b/a Jansen Distributing Co and Teamsters, Chauffeurs, Warehousemen and Helpers Local 542, affiliated with the Interne honal Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL- CIO 1 Case 19-CA-19042(E) November 25, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFr On August 9 1988 Administrative Law Judge Gordon J Myatt issued the attached supplemental decision The Applicant filed exceptions and a sup porting brief and the General Counsel filed an an swenng 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 lion and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings, findings and conclusions2 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, Ralph M Smith Jr d/b/a Jansen Distnbut ing Co Ellensburg Washington for attorney s fees and expenses under the Equal Access to Justice Act is denied i On November 2 1987 the Teamsters International Union was read mitted to the AFL-CIO Accordingly the caption has been amended to reflect that change 2 In adopting the judges conclusion that the General Counsels posi tion in the underlying unfair labor practice case was substantially juste feed we rely on the Supreme Court s recent decision in Pierce v Under wood 56 US L W 4806 (1988) In that case the Court held that the phrase substantially justified means justified to a degree that could sat isfy a reasonable person or reasonable basis both in law and fact The Court found that a sentence in the 1985 House Committee Report H R Conf Rep No 99-120 ( 1985) which defined substantial justification as more than mere reasonableness was not an authoritative interpretation of what the 1980 statute meant or of what the 1985 Congress intended had not engaged in conduct which violated Section 8(a)(1) and (3) of the Act and recommending dismissal of the entire complaint No exceptions were filed and on February 11 1988 the Board issued an Order in which it adopted my decision and dismissed the complaint in its entirety On February 22 1988 Respondent filed with the Board an application for attorney s fees and costs pursu ant to the Equal Access to Justice Act (EAJA) Public Law 96-481 94 Stat 2325 5 U S C § 504 and Section 102 143 of the Board s Rules and Regulations The Board referred this application to me for appropriate action on February 23 1988 Thereafter the General Counsel filed an answer to the application on March 11 1988 The General Counsels answer objected to the apphca Lion on both procedural and substantive grounds The major thrust of the answer-treated in the nature of a motion to dismiss-is that the General Counsels position in the underlying unfair practice case was substantially justified within the meaning of EAJA and Section 102 144(a) of the Board s Rules and Regulations 1 EAJA provides that an administrative agency shall award to a prevailing party fees and other expenses in cuffed in connection with an adversary adjudication unless it is found that the position of the agency was substantially justified or that special circumstances make such an award unjust 2 Although EAJA does not define the term substantially justified the legislative history discloses that Congress intended a test of reason ableness to be applied in determining whether such justi fication existed On this point the legislative history states The test of whether or not a Government action is substantially justified is essentially one of reason ableness Where the Government can show its case had a reasonable basis both in law and fact no award will be made In this regard the strong de terrents to contesting Government action require that the burden of proof rest with the Government This allocation of the burden in fact reflects a gen eral tendency to place the burden of proof on the party who has readier access to and knowledge of the facts in question The committee believes it is far easier for the Government which has control of the evidence to prove the reasonableness of its action than it is for a private party to marshal the facts to prove that the Government was unreason able Melvin R Kong Esq for the General Counsel Ryan Edgley Esq (Lofland & Associates) of Yakima Washington for the Respondent SUPPLEMENTAL DECISION Equal Access to Justice Act GORDON J MYATT Administrative Law Judge On December 16 1987 I issued my decision in the above captioned matter finding that Ralph M Smith Jr d/b/a Jansen Distributing Co (the Respondent or Applicant) 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 i In view of the disposition of the application the other issues raised by the General Counsels answer need not be addressed here In addition the Applicant filed a motion to withhold information from public disclo- sure which was not opposed by the General Counsel Accordingly the motion to withhold is granted to the extent provided by Sec 102 147(g)(2) of the Boards Rules and Regulations 8 5 U S C § 504(a)(l) and (b)(1) 291 NLRB No 128 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Government to establish that its decision to litigate was based on a substantial probability of prevailing H R Rep No 1418 96th Cong 2d Sess 10 (1980) re punted in 5 U S Code Cong & Ad News 4984 4989 cited in Enerhaul Inc 263 NLRB 890 fn 2 (1982) See also S Rep No 253 96 Cong 2d Sess 6-7 (1980) Nor has this test of reasonableness been changed by the subsequent revisions to EAJA Since the amendments in 1985 the Board has consistently taken the position that the definition of substantially justified was not al tered but merely clarified by Congress Thus the Board (citing H R Conf Rep No 99-120 at 9) holds substantially justified means more than mere reason ableness 3 In the underlying unfair labor practice case the Gen eral Counsel alleged the Applicant violated Section 8(a)(1) and (3) of the Act by unlawfully interrogating employee Andrew Lopez on March 23 1987 about his union activities and by discharging Lopez on March 24 1987 for refusing to sign a wage agreement which would have the effect of renouncing the Union s efforts to press a wage claim on his behalf It was stipulated at the hearing that the collective bargaining agreement be tween the Union and the Applicant had expired in June of the prior year and the parties failed to negotiate a suc cessor agreement It was further stipulated that in No vember of the prior year the Applicant had withdrawn recognition of the Union without any protest from or any assertion of representational status by the Union I found that considering all the circumstances the Ap plicant s inquiry about whether Lopez contacted the Union or the Union contacted him-concerning his com plaint about his wages-was a legitimate one in order to gain information about why the Union was now pressing a wage claim on behalf of Lopez Implicit in this finding is that the inquiry was not coercive nor did it tend to coerce Lopez Rather it was a lawful attempt to ascer tarn why the Union which enjoyed no representational relationship with Respondent was now pressing a claim on behalf of the employee I further found there was no evidence of union animus and Lopez was discharged the following day for refusing to sign a wage agreement of fered by the Applicant 3 See e g MacDonald Miller Co 283 NLRB 676 fn 3 (1987) Abbott House 277 NLRB 194 fn 1 (1985) Carmel Furniture Corp 277 NLRB 1105 fn 1 (1985) Stonehouse Coal Co 276 NLRB 1258 fn 1 (1985) Although it is true as the Applicant asserts there were no credibility issues to be resolved in reaching my determinations it is not true as the Applicant contends that there was not substantial justification for the Gen eral Counsel to consider the Applicants questioning of Lopez to be coercive Indeed based on the Applicant s inquiry of Lopez about how contact with the Union was initiated it was more than merely reasonable for the General Counsel to infer that the questioning was unlaw ful especially since the Applicant was now faced with a wage claim on behalf of Lopez from the very same union which the Applicant had withdrawn recognition only 5 months previously In addition when the ques tioning is considered in the context of Lopez discharge the following day for refusing to sign the Applicant s wage offer it was more than merely reasonable for the General Counsel to infer that the available evidence demonstrated the employee was discharged for unlawful reasons i e for reviving the Union s interest in repre senting Respondents employees and not renouncing the Union s efforts to secure higher wages for him The fact that the General Counsels evidence ultimately was found to be insufficient to prove the allegations against the Applicant does not automatically warrant the conclu Sion that the General Counsel lacked substantial justifica tion to proceed with the case See MacDonald Miller Co supra Accordingly I find there was a reasonable basis both in law and in fact for the General Counsel to proceed with the case and that the application for fees and ex penses should be denied On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed4 ORDER The application of the Applicant Ralph M Smith Jr d/b/a Jansen Distributing Co of Ellenburg Washington for an award under the Equal Access to Justice Act 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 poses