Trans Tech Electric, Inc

TRANS TECH ELECTRIC Trans Tech Electric, Inc and Ralph H Lingo Case 25-CA-16412(E) April 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 5, 1989, Administrative Law Judge James J O'Meara Jr issued the attached supple- mental decision The Applicant filed exceptions and a supporting beef, 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 conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the application of the Ap- plicant, Trans Tech Electric, Inc, South Bend, In ' In agreeing with the judge s findings that the General Counsel was substantially justified in seeking backpay for discnmmatee Lingo for both the Angola and LaGrange projects we note that the Board s Decision and Order in this case did not limit the backpay due to the Angola project Trans Tech Electric 274 NLRB 632 (1985) Accordingly the Board did not foreclose the possibility that backpay was due for the La Grange project Further the Board s finding in the underlying case that there was no evidence that the Union referred Lingo to the LaGrange project did not preclude the General Counsel from seeking backpay for that project if it could be established that Lingo could have worked at LaGrange in the absence of a referral In this regard we note that the parties agreed during the backpay proceedings that when an employee is laid off from a project for less than a week the Employer can bring him back to that project or transfer him to another project without going through the Union for a referral The dispositive issue is therefore whether the Gen eral Counsel was substantially justified in contending that Lingo would have been transferred from Angola to LaGrange in light of the nearly 3 month period between his discriminatory layoff at Angola and the Appli cant s first request for a referral to the LaGrange project The General Counsel argued in the backpay proceedings that a comparison of the work at the two projects indicated that the Applicant would have re quired a second worker at the early stages of LaGrange in addition to its permanent employee but that the Applicant purposely altered its work procedures to utilize only one employee so as to avoid transferring Lingo to the second position Given the Applicant s apparent willingness to un derman the Angola project pursuant to Lingo s discriminatory layoff and Lingo s testimony that he was told by the Applicant s supervisor at Angola that he might be used on the LaGrange project id at 636 we conclude that the General Counsel was substantially justified in contend ing that Lingo would have been transferred to LaGrange in the absence of his discriminatory layoff The General Counsel s failure to so convince the Board does not preclude a finding of substantial justification Shell maker Inc 267 NLRB 20 (1983) In adopting the judges decision we do not rely on Haberman Con struction Co 236 NLRB 79 (1978) enf denied in part 641 F 2d 351 (5th Cir 1981) Instead we rely on Dean General Contractors 285 NLRB 573 (1987) for the proposition that the question of whether backpay is due a discnmmatee for additional projects as in this case is appropriately re solved during the compliance process 711 diana, for attorney's fees and expenses under the Equal Access to Justice Act is denied Ralph R Tremain Esq and Cornele A Overstreet Esq for the General Counsel S Douglas Triolson Esq (Lowe Gray Steele & Hoffman), for the Respondent SUPPLEMENTAL DECISION (Equal Access to Justice Act) JAMES J 0 MEARA JR, Administrative Law Judge On 28 February 1985 the Board issued its Decision and Order in this case Basically affirming Administrative Law Judge William A Pope II, the Board found that Respondent Trans Tech Electric Inc had violated Sec tion 8(a)(1) and (3) of the National Labor Relations Act by laying off its employee Ralph H Lingo The Board ordered Respondent to offer Lingo immediate and full reinstatement to his former job or, if that job no longer existed, to a substantially equivalent position The Board also ordered that Lingo be made whole for any loss of earnings he might have suffered and that records of his unlawful layoff be removed from Respondents files Following the Board s Order, the parties were unable to agree on the amount of backpay owed Lingo The Re gional Director for Region 25 thereupon issued a back pay specification and on 9 June 1987, I issued a supple mental decision finding Ralph Lingo to be entitled to backpay in the sum of $4 392 36 together with welfare and pension payments with appropriate interest for the first three quarters of 1984 Respondent filed exceptions to my supplemental decision On 16 December 1987 the Board issued its Supplemen tal Decision and Order The Board reduced the amount owed Lingo to $415 20 net backpay plus interest and di rected Respondent to pay $30 to the welfare plan and $21 60 to the pension plan plus interest On 14 January 1988 the Respondent filed with the Board in Washington, D C an application for fees and expenses pursuant to the Equal Access to Justice Act, Pub L 96-481 94 Stat 2325 and Section 102 143 of the Board s Rules and Regulations On 19 January 1988 pur suant to Section 102 148(b) of the Board s Rules and Regulations the Board, through its Deputy Executive Secretary ordered that Respondents application be re ferred to the administrative law judge for appropriate action On 18 February 1988 counsel for the General Court sell' filed with the chief administrative law judge a motion to dismiss application for attorney s fees and ex penses under the Equal Access to Justice Act ' Hereafter designated as the General Counsel 293 NLRB No 86 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I CONTENTIONS OF THE PARTIES A Respondent Respondent notes that the complaint in the underlying C case issued in June 1984 Prior to the issuance of the complaint, Respondent asserts that it made numerous and substantial efforts' to settle the case The issue that divided the parties was the amount of backpay owed Charging Party Ralph Lingo That issue arose in the fol lowing way Respondent is a construction industry em ployer At the time of his discriminatory layoff, Lingo was working at Respondents Angola project Respond ent offered backpay based exclusively on Lingo s Angola employment The General Counsel took a broader view of the matter In his opinion, Lingo was due backpay not only for the Angola project but also for a LaGrange project2 to which the General Counsel insisted Lingo would have been referred in the normal course of events The difference was not small Restricting backpay to the Angola project implied some $466 80 total liability,3 based on work at both Angola and LaGrange, I found backpay to exceed $4,392 36 in my supplemental backpay decision of 9 June 1987 The General Counsel does not essentially dispute these facts See the General Counsel s motion to dismiss, page 6 No settlement agreement was had and the parties proceeded to litigation When the Board issued its 28 February 1985 decision on the underlying merits of the controversy, it made no explicit finding concerning the length of Lingo s backpay period The remedial portions of its Order and its notice contained the conventional direction that Lingo be made whole for any loss of earnings and other benefits suf fered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision 4 Respondent draws attention to the fact that In revers ing an evidentiary finding of the Administrative Law Judge the Board found that there was no evidence that Lingo had ever been referred to the LaGrange project and that the Respondents failure to employ him there was consistent with its contractual obligations (Re spondent s application p 2, par 4) Respondent's refer ence is to 274 NLRB 632 and a portion of footnote 1 of that decision We do not rely on the judges statement in the first sentence of fn 9 deeming it suspicious that the Respondent did not offer employee Lingo a job at LaGrange after it laid him off from the Angola project Art III of the parties collective bargaining agreement states that the Union is the sole and ex clusive source of referral of applicants for employ ment ' With limited exceptions not relevant here employers covered by the agreement are prohibited from directly hiring employees without first re questing and obtaining a referral from the Union 2 Both these projects lay within the jurisdiction of Local 305 of the IBEW whose hiring hall was their basic source of labor and to which Lingo belonged 2 Based on the Board s 16 December 1987 supplemental decision 4 Trans Tech Electric 274 NLRB 632 (1985) As there is no evidence the Union referred Lingo for the LaGrange project, the Respondents failure to offer him a job there was entirely consistent with its obligations under the contract The judge s reli ance on such conduct as evidence of the Respond ent's discriminatory motive was therefore in error Judge Popes footnote 9 to which the Board refers states But, it is suspicious that Martell chose to lay off Lingo, assuming that he was no longer needed on the Angola project, rather than offer him employ ment on the LaGrange project, upon which work was starting, and for which other Local Union 305 members were hired Possibly bearing on Respond ent s decision not to continue to employ Lingo was receipt of notification on March 10 from Local Union 305 designating Lingo as steward on the La Grange project, although it must also be said here that while Lingo was not laid off until March 13 Respondent contends that the decision to lay him off was actually made prior to March 10 The General Counsel continued to claim in the back pay proceeding following the Board s initial determina tion in the case that Lingo was entitled to backpay for the LaGrange project In the interim, on 17 December 1985, the General Counsel petitioned the Circuit Court of Appeals for the Seventh Circuit for enforcement of the Board s Order on the ground that Respondent re fused to pay full backpay Respondent petitioned for and obtained a stay of the enforcement proceeding on 25 April 1986 As the Board has now issued its supplemental decision on 16 December 1987 in the backpay case at 287 NLRB 623, Respondent notes that the Board has ruled that Lingo is not entitled to backpay for the LaGrange project In so doing the Board relied on its finding in its original Decision and Order that there was no evidence that Lingo was ever referred to the LaGrange project and that Respondents failure to employ him there was consistent with its contractual obligation (Application p 3, par 8 ) Respondent contends that the General Counsel was without substantial justification ab initio on the La Grange contention and, further the General Counsel s continued insistence on the LaGrange position in the backpay portion of the case was also without substantial justification (See application p 3 par 9) Respondent seeks a total of $14,722 42 in legal fees and expenses for having been (as it sees) forced into this multiple litiga tion The remainder of the application consists of itemized legal bills and two balance sheets of Respondents dated 29 February 1984 and 28 February 1986 The balance sheets reflect a net worth of less than $7 million on both dates Respondent asserts at application page 4 para graph 11, that it employed 25 employees in 1984 as its South Bend Indiana location 70 in 1986, and, currently 80 employees TRANS TECH ELECTRIC B The General Counsel The General Counsel claims first that Respondent has not shown its eligibility for an award under EAJA Noting that Respondents application fails to state wheth er there are affiliates and subsidiaries of the Respondent, the General Counsel relies on Section 102 147(f) of the Board's Rules and Regulations that requires that an ap plication for fees include a detailed statement of the net worth of the applicant and any affiliates as of the time when the adversary adjudicative proceeding was initiat ed The General Counsel refers to Section 102 143(g) that provides that the net worth and number of employ ees of the applicant and all affiliates shall be aggregated to determine eligibility The General Counsel points to no evidence of hidden affiliates, his argument simply states if there are no affiliates that fact must be stated in order to evaluate eligibility for an award The General Counsel next contends that attorney's fees in excess of $75 per hour are not recoverable Re spondent s account of its legal costs reflects a number of instances in which sums in excess of $75 per hour are re quested In his third argument the General Counsel contends that the application fails fully to document the requested fees and expenses Finally, the General Counsel contends that his back pay position in the underlying unfair labor practice and at the backpay hearing was substantially justified II CONCLUSIONS Respondents application, page 3, paragraph 9, states that General Counsels position throughout this proceed ing that Lingo was entitled to backpay for the La Grange project was without substantial justification Respondent further contends that the General Counsels continued insistence on backpay for the LaGrange project in the face of the Board s specific finding in its original Decision and Order is without substantial justification I interpret this portion of the application as a twofold re quest made in the alternative The first is a request for fees and expenses dating from the conclusion of the in vestigation in the underlying C case and the start of the settlement negotiations between the General Counsel and Respondent to the end of the proceeding Respondent impliedly takes the position that had its initial settlement proposal been accepted, there would have been no subse quent litigation The second is a request that dates from the start of the compliance procedures in the underlying C case to the end of the proceeding Respondent's ac count of fees and expenses attached to its application does not set out any fees for preparation of its EAJA re quest nor does the application itself request such fees and expenses For the reasons set out below, I find that the General Counsel was substantially justified at all stages of this proceeding-the settlement negotiations prior to litiga tion of the underlying C case and the compliance stage negotiation and litigation-in his position that Lingo was 713 due backpay for both the Angola and LaGrange projects 5 When negotiations for a settlement agreement com menced, the General Counsel was in possession of evi dence that, if believed, established that Lingo was dis missed from the Angola project in violation of Section 8(a)(1) and (3) of the Act This evidence was of such force and effect as to convince Administrative Law Judge Pope and the Board at 274 NLRB 632 that a vio lation had occurred The immediate question between the parties, then was the extent of Lingo's backpay remedy was it to be only for work on the Angola project or should it be extended to work on the La Grange project as well9 The relative amounts of backpay involved (as seen by the General Counsel) were in about the ratio of 22 to 1 Angola eventually yielded $466 80 while in the General Counsel's view an additional amount of $10,400 was due from work at LaGrange that the General Counsel contended Lingo would have earned absent the discrimination against him As the General Counsel comments in his motion to dismiss (using the figures found by the Board and myself in the supplemental decision) It cannot be gainsaid that the difference between the two figures is sufficient to make a decision not to accept the former [$466 80] as a compromise of the latter [$4 392 36], prima facie reasonable and that thus the real question becomes the reasonableness of the General Counsel seeking the higher figure [See motion to dismiss, p 6 ] I would disagree with the quoted language only to the extent of saying that the real question is whether the General Counsel was substantially justified on the basis of evidence then known to him in seeking the higher figure Substantial justification here must turn on the nature of the evidence and reasonable inferences avail able to the General Counsel to show that Lingo would have, in the normal course of events, worked on the La Grange project The evidence and the inferences would at this stage of proceeding, appear to have consisted of the following (1) There was evidence that Respondents supervisor Blosser, prior to the activity that triggered Lingo s dis charge, commented that Lingo might likely be trans ferred to the LaGrange project According to the Gener al Counsel, this evidence appeared at page 74 of the tran script of the underlying C case hearing It is mentioned in passing by Judge Pope at 274 NLRB 632, 636 (2) Respondent, following Lingo s discriminatory dis charge demonstrated a marked willingness to underman the Angola project as part of a scheme to avoid recalling Lingo This was done even at the risk of a $500 per day penalty for every day the job went past its completion date Respondent was as much as 2 months behind schedule This evidence was presented by the General Counsel in the underlying C case and is favorably com 5 In view of this finding I find it unnecessary to discuss the General Counsels other asserted reasons for dismissing Respondents application in toto or limiting the requested award of fees and expenses 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mented on by Judge Pope at 274 NLRB 632, 636 Grant ed that Respondent would take such risks at Angola be cause of its animus against Lingo,6 it might well have undermanned the LaGrange project for the same reason I note that the LaGrange project started about 8 March with but a single employee That state of affairs contin ued until early June when a referral was requested from Local 305 ° The General Counsel argues that if Angola and LaGrange paralleled one another, LaGrange, as Angola, would have needed at least two employees fol lowing the 29 March completion of Angola See motion to dismiss, page 7 Unlike Angola which first required a single employee (Blosser) for about a month, LaGrange retained single employee status for 2 months, i e , until early June 8 There appears to be no evidence as regards the different natures of the Angola and LaGrange projects that would explain the manning differences out lined above In light of the discrimination practiced against Lingo, the General Counsel might well have questioned the different manning patterns between the two projects 9 (3) Respondent demonstrated a willingness to transfer employees from Angola to LaGrange Thus, its supervi sor, Blosser (and employee Steffan for a few days in March), went to LaGrange to begin work (4) On 9 March, the Union objected to the use of non local individual Blosser on two jobs (Angola and La Grange) within its jurisdiction Respondent might have used local employee Lingo for that purpose to avoid the conflict with the Union were it not for the discriminato ry discharge Instead, Martell rejected the Union s coin plaint in toto in his 12 March letter but, however trans ferred in another outside employee to placate the Union 10 (G C Exh 3 backpay hearing ) Based on the above, the General Counsel concluded that had Lingo not been discriminatorily discharged in early March he would have, in all likelihood, transferred to LaGrange on the 29 March conclusion of the work at Angola Accordingly the General Counsel felt himself unable to accept the smaller sum of backpay proffered by Respondent I find this position to be substantially justified for a least two reasons First, whatever ambigui ty attached to Lingo's potential transfer to LaGrange was at least partially attributable to Respondents dis criminatory discharge of him in early March The burden of proof in such backpay matters falls on Re spondent Atlantic Marine, 211 NLRB 230 (1974) Al though I do not find that Respondent would have neces sanly been unequal to that burden there is no real evi dence that it carried the burden during the precomplaint settlement negotiations We have here a litigable differ ence of opinion on the extent of the remedy Second, the 6 It would have been difficult to hire another employee to replace Lingo at Angola because Respondents asserted reason for letting him go amounted to a claim of lack of work ' Trans Tech Electric 287 NLRB 623 (1987) 8 That Steffan may have been there for several days in March does not vitiate the argument See 287 NLRB 624 at fn 6 8 The manning differences must be considered in light of the ,orre spondence between Business Agent Smith and Respondent s official Mar tell infra 10 Presumably either a local man (Lingo ) or a separate outside man would have met the Union s objection General Counsel would have had before him Haberman Construction Co 236 NLRB 79 (1978) In Haberman (ad mittedly not a hiring hall situation)" i the Board reversed its administrative law judge and found there to be at least a possibility that discnminatees in a construction context might have been hired on later projects of the Respondent Accordingly, it directed that the backpay remedy take this possibility into account Significantly, the Board took this step although describing the record evidence on this issue as not conclusive 236 NLRB 79 fn 3 The General Counsel here was dealing not with unrelated serial projects but near simultaneous projects that were part of an overall scheme of improvements The Board has interpreted the substantial justification standard, as the General Counsel contends, in such a way as not to interfere with the General Counsels vigor ous enforcement of the Nation s labor laws Wyandotte Savings Bank v NLRB, 682 F 2d 119, 120 (6th Cir 1982), Shellmaker Inc, 267 NLRB 20 (1983) The General Counsels ultimate failure to prevail, as here, raises no presumption that he was not substantially justified in pressing his position Wyandotte Savings Bank, supra Turning to the litigation in the underlying C case, I find no indication in the Board s and judge's decisions that the remedial question of Lingo's backpay period, i e, whether he would have gone to the LaGrange project, was litigated per se, i 2 The question therefore becomes the substantial justification of the General Counsels position on the LaGrange matter in the back pay proceeding Substantial justification there must, in turn, be viewed in light of the Board s findings in the un derlying C case at 274 NLRB 632 In my 9 June 1987 supplemental decision in the back pay proceeding, I relied basically on two considerations The first was Supervisor Blosser s comment that the Company was considering taking Lingo to the LaGrange project since his production had been good Supple mental decision at 3, LL 10-15 The second was an ex change of correspondence between the Union's business agent, Smith, and Respondent's official, Martell In rele vant part, Smith s 9 March letter announced that Lingo `has been officially appointed union steward He will be put on the job you have in LaGrange County on the Toll Road when you start the project Martell s 12 March reply stated Pursuant [sic] to your letter of March 9, this letter is to provide notification that Ralph Lingo has not, and will not be working on the LaGrange County Toll Road Project He will be laid off from our firm this week when we reduce our work force at the Angola project The layoff to which Martell refers is the one found to be discriminatory by the Board As contended by the General Counsel, I found significance in Martell s making a connection between Lingo s (dis criminatory) layoff and the announcement that he would not work on the LaGrange project I found that it would have been futile for the Union to refer Lingo in June 11 Although Respondent discharged its employees between projects 12 I note that the Board s remedial order and notice to employees simply directed that Lingo be made whole for any loss of earnings There was no attempt to define the length of the period for which backpay was sought TRANS TECH ELECTRIC 715 (when a request was made) in light of Martell s asserted disinclination to employ him In determining whether the General Counsel was sub stantially justified in proceeding on the LaGrange con tention I put no weight on the fact that his evidence and argument convinced me to rule in his favor Viewing the backpay matter as a whole, however I find that the General Counsel was in possession of evi dence that (1) indicated that a Respondent supervisor had spoken favorably of Lingo s transfer to LaGrange and (2) showed that Respondents responsible official, Martell, had written a letter connecting Lingo s discrimi natory layoff with the assertion that Lingo would not work at LaGrange Putting to one side the portion quoted above from the Board s footnote 1 in its original decision at 274 NLRB 632, I would have no hesitation in finding that the General counsel was substantially juste feed in proceeding on the evidence he adduced before me in the backpay proceeding Respondent argues in its application at 2, paragraph 5, that the Board's footnote 1 acted to bar the General Counsel from proceeding with the LaGrange contention in the backpay proceeding The General Counsel, in his motion to dismiss at 9 argues it is clear that the Board in that disavowal is addressing an evidentiary point bear mg on the underlying unfair labor practice determina tion, and is not addressing the issue of remedy I find that the General Counsel's distinction is well taken Whether Lingo s failure to work at LaGrange constitutes evidence of Respondents discriminatory motive is not necessarily a compliance question as viewed at the time by the General Counsel Compliance traditionally ad dresses itself to questions of what a discriminatee s earn rags history would have been absent the discrimination practiced against him See, e g Casehandling Manual (Part Three) Compliance section 10530 Haberman Con structon Co, supra, 236 NLRB 79 makes this distinction clear The Board there took account of the compliance possibility that discnminatees might be due backpay for later projects The Board nowhere hints, however that any failure to hire the discriminatees on those projects constituted a separate unfair labor practice or evidence supporting the unfair labor practices actually found Here, the question, as viewed by the General Counsel prior to the issuance of the Board's supplemental deci sion at 287 NLRB 623, was not whether Respondent honored its contractual obligations with the Union or whether the failure to transfer Lingo to LaGrange was evidence of Respondents discriminatory motive, but rather what Lingo s employment history would have been absent his discriminatory layoff The General Coun sel was in possession of evidence that Lingo s employ ment history would have included a stint at LaGrange had he not fallen afoul of Respondents discrimination That he was unsuccessful in convincing the Board of that fact does not render his pursuit of the argument sub stantially unjustified A contrary decision would, in my belief, interfere with the General Counsel's vigorous en forcement of the labor laws Shellmaker Inc, supra, 267 NLRB 20 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edi3 ORDER The General Counsel's motion to dismiss application for attorney's fees and expenses under the Equal Access to Justice Act is granted and the request by applicant for the award of fees and expenses is denied 13 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