Bakken Electric, Inc

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bakken Electric, Inc and International Brotherhood of Electrical Workers, Local No 292, AFL- CIO Fowser Electric Co and International Brotherhood of Electrical Workers, Local No 292, AFL- CIO North Town Electric, Inc and International Broth- erhood of Electrical Workers, Local No 110, AFL-CIO and International Brotherhood of Electrical Workers, Local 292, AFL-CIO Cases 18-CA-8611-1(E), 18-CA-8611-2(E), 18-CA-8610-2(E), and 18-CA-8611-4(E) April 11, 1989 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 23, 1988, Administrative Law Judge David S Davidson issued the attached sup plemental decision Applicant North Town Elec tric, Inc filed exceptions 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 has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the applications of the Applicants, Bakken Electric, Inc, Fowser Electric Co, and North Town Electric, Inc, Minneapolis, Minnesota, for attorneys' fees and expenses under the Equal Access to Justice Act are denied Florence I Brammer Esq, for the General Counsel Margaret A Joyce, of New Brighton, Minnesota for North Town Electric Inc Alan D Bakken of Plymouth Minnesota for Bakken Electric, Inc Dan L Fowser, of Long Lake, Minnesota for Fowser Electric Co SUPPLEMENTAL DECISION Equal Access to Justice Act DAVID S DAVIDSON, Administrative Law Judge On July 29 1988, the National Labor Relations Board issued its decision in Stack Electric, 290 NLRB 575 dismissing the consolidated complaint in its entirety North Town Electric Inc (North Town), Bakken Electric Inc (Bakken) and Fowser Electric Co (Fowser) were each Respondents in that proceeding Thereafter each filed timely applications for attorneys fees and expenses which have been referred to me for appropriate action 1 On September 26, 1988 counsel for the General Counsel filed motions to dismiss each of the applications No re sponses to the motions to dismiss have been received Because all three applications arise out of the same con solidated unfair labor practice proceeding and raise relat ed issues, I have consolidated them for purposes of this supplemental decision The principal issue raised by each of the motions to dismiss is whether the position of the General Counsel was substantially justified Because I find that her pose tion was substantially justified, I find it unnecessary to consider other grounds advanced by the General Court sel in support of the motions to dismiss and will grant them Section 504 of the Equal Access to Justice Act pro vides for the award of fees and expenses incurred in an adversary adjudication to a qualified prevailing party unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust In the underlying unfair labor practice proceeding the principal issues were whether, by signing Letters of Assent authorizing multiemployer associations to act as their collective bargaining representatives, Respondents became ob ligated to adhere to successive collective bargaining agreements negotiated between the Associations and the Unions and, if so, whether Respondents later unlawfully repudiated those agreements Respondents contested the Board's assertion of junsdic tion over them and raised a number of affirmative de fenses In my decision, dated August 30 1985 I found that Fowser s employees had never become part of the multi employer unit because there was no showing that Local 292 ever represented the employees of Fowser after Fowser signed the letter of assent and concluded that the Board should not assert jurisdiction over Fowser As to North Town and Bakken I found that their employees had become part of the multiemployer units and that they violated Section 8(a)(5) and (1) of the Act by repu diating the association agreements during their terms On exceptions the Board found that the delegation of bargaining authority contained in the letters of assent was sufficient to warrant assertion of jurisdiction over all the Respondents because it indicated the intent of each individual Respondent to be bound by group rather than individual action Having asserted jurisidiction however, the Board concluded that under its recent Deklawa2 de ' The Fowser application was filed by Dan Fowser Electric Inc and signed by Dan Fowser president It alleges that Dan Fowser Electric Inc is a Minnesota corporation For the purpose of disposing of the motion to dismiss I have disregarded the difference between the corpora tion filing the application and the individual proprietorship which was the Respondent in the unfair labor practice proceeding 2 John Deklawa & Sons 282 NLRB 1375 (1987) 293 NLRB No 80 BAKKEN ELECTRIC cision the individual employer units had not become merged into the multiemployer units and that each of the individual units consisted of no more than a single em ployee so that none of the Respondents was under a statutory duty to bargain and they could repudiate their agreements at any time With respect to North Town and Bakken, I found ment in the allegations of the complaint pursuant to Board decisions which were controlling at that time 3 In reversing my decision the Board did not find that I was mistaken in my application of existing precedents or that the facts failed to support the decision Rather on the basis of Board policy formulated and announced after the issuance of my decision and after the General Counsel had filed her exceptions to it, the Board decided no longer to follow the precedents on which the General Counsel had relied in issuing the complaint and in litigat ing it Because the General Counsels position with re spect to North Town and Bakken was supported by the facts and existing Board precedents at all times through the final submission of the case to the Board, I find that the position of the General Counsel with respect to North Town and Bakken was substantially justified at all material times With respect to Fowser, the Board rejected my con clusion with respect to jurisdiction and asserted over Fowser in accord with the position taken by the General Counsel Although the Board agreed with my conclusion that Fowser's employees had not become part of the multiemployer unit it relied on its new Deklawa policy and not on the application of the prior precedents on which I had relied As in the cases of North Town and Bakken, the issue is whether the position of the General Counsel was substantially justified under Board prece dents existing at the time the complaint issued and the case was litigated In the unfair labor practice proceeding and in its motion to dismiss the General Counsel has contended that under Board precedents then existing that once Fowser executed the letter of assent, its employees were immediately merged into the multiemployer unit and that further inquiry into majority status of Fowser s employ ees was unwarranted Although I rejected that conten tion in the underlying proceeding under the precedents relied on by the General Counsel, the issue here is not whether my decision was correct but whether the pose tion of the General Counsel at that time was substantially justified In Wayne Electric, 226 NLRB 409 (1976), after reciting that the respondent had signed a letter of assent similar 9 In two respects I agreed with contentions of North Town relating to the effectiveness of its notice to terminate S NECA s authority to repre sent North Town in negotiations with Local 110 However I do not find that these were significant and discrete portions of the proceeding within the meaning of Sec 102 144 of the Board s Rules and Regulations In any event I would find that although I reject the General Counsels conten Mons in these two respects her position with respect to them was also substantially justified 645 to those at issue in this case, the Board stated, The Board has held that by signing such letter of assent an employer is bound by the multiemployer contract and becomes a member of the multiemployer bargaining group In National Electrical Contractors Assn (Central New Mexico Chapter), 152 NLRB 1604 (1965) the Board clarified a multiemployer unit finding that it included the employees of all employers who had filed letters of assent similar to those at issue in this case In National Electrical Contractor Assn (Northern Nevada Chapter), 131 NLRB 550 (1961), the Board directed an election in a multiemployer unit again including the employees of employers who had signed a similar letter of assent More recently in Vincent Electric Co, 281 NLRB 903 (1986), the Board stated [w]e find this case is controlled by longstanding Board precedent that signers of an IBEW Letter of Assent A become part of a multiem ployer bargaining group In my decision I did not rely on these or similar prece dents because in my view they failed to deal with the question of whether, in addition to a showing that the employer had signed a letter of assent, it was necessary for the General Counsel to show that the union repre sented the employees of the single signatory employer at some point before they could become merged into a mul tiemployer unit with a 9(a) agreement In the case on which the General Counsel relied, the facts either showed that the unions represented the employees of the single employers or simply failed to disclose the unions representative status Because none of the cases squarely held that such a merger took place even when the union did not represent the signatory employers employees prior to merger, I found more persuasive two authorities to the contrary a concurring opinion of Board Member Dennis in C I M Mechanical Co, 275 NLRB 685 (1985) and Baton Rouge Building Trades Council v Schafer Con struction Co 657 F 2d 806 (5th Cir 1981) Although I found these two authorities persuasive until my decision and indeed even up to the time of the Vincent Electric decision which issued after my decision and while Stack and Deklawa were pending before the Board, only one Board member had taken the position expressed in C I M Mechanical and the Fifth Circuit had taken that position in a non Board case without the bene fit of a prior Board interpretation 4 Given these circum stances I conclude that when the General Counsel issued the complaint when the hearing took place and when the General Counsel filed exceptions to my initial decision there was substantial precedent supporting the position of the General Counsel and that the position of the General Counsel was substantially justified 4Indeed at the time briefs were submitted to me in the unfair labor practice case C I M Mechanical had not been decided by the Board and there was no Board precedent rejecting the position of the General Counsel 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly having found that the position of the General Counsel was substantially justified with respect to all three applicants, I issue the following recommend- ed5 ORDER The General Counsels motions to dismiss are granted and the applications of North Town, Bakken, and Fowser for attorneys fees and expenses are denied 5If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Board and all objections to them shall be deemed waived for all pur Order shall as provided in Sec 102 48 of the Rules be adopted by the poses