Albert T Ledford Trucking Co.

940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Albert T Ledford Trucking Company and Laborers' International Union of North America, Local 513, AFL-CIO Cases 9-CA-24125(E) and 9- CA-24247(E) May 4, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 15, 1989, Administrative Law Judge Robert T Wallace issued the attached Sup- plemental Decision denying an award under the Equal Access to Justice Act The Applicant filed exceptions with supporting argument, and the Gen- eral 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 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 Ap plicant, Albert T Ledford Trucking Company, Hamilton, Ohio, for attorney's fees and expenses under the Equal Access to Justice Act is denied Jack V Baker Esq for the General Counsel Daniel C McCarthy Esq of Indianapolis Indiana for the Respondent SUPPLEMENTAL DECISION Equal Access to Justice Act ROBERT T WALLACE Administrative Law Judge No exceptions were taken to my decision, served on March 11, 1988 in which I recommended that the complaints be dismissed, and the Board adopted that recommendation by order dated April 27 On May 23 1988, Respondent Applicant (Ledford) filed an application for attorneys fees and costs pursuant to the Equal Access to Justice Act (EAJA), Public Law 96-481, 94 Stat 2325 5 US C § 504 and Section 102 143 of the Boards Rules and Regulations The matter was referred to me for appropriate action on May 31 1988 On July 13, I denied a motion to dismiss filed by the General Counsel, and the latter filed an answer on September 13 Thereafter, Applicant responded in a motion for judgment on the pleadings, and it later (on January 5 1989) sought to amend the motion apparently for the main purpose of calling my attention to a Board decision in Lion Uniform 285 NLRB 249 (1987) There were two allegations in the complaint (1) that Applicant laid off certain employees so as to lend cre dence to its threats to go out of business if employees continued to support the Union, and (2) that Applicant circulated an antiunion petition among its employees The question presented under EAJA is whether the Gen era] Counsel had substantial justification for issuing and pursuing the complaint See Lion Uniform, supra I find affirmatively Regarding the first charge, the key is whether Appli cant laid off the named employees pursuant to a firm intent to withdraw from the trucking business Although I found it had such intent, I did so only after its principal official (Albert Ledford) testified at the very end of the trial that he had just entered into a contract of sale for his last remaining dump trailers Up to that point Appli cant indisputably was still in business, and I was not in clined to credit his claim that he would soon terminate all operations, particularly in view of unopposed finding of Judge Evans in the earlier case that Applicant had en gaged in numerous unfair labor practices including re peated predictions that it would close down According ly, I find that there was substantial justification for the charge through the time of trial and until the General Counsel had an opportunity to ascertain that the Compa ny indeed went out of business, and had not resumed op erations under another name Apparently she was satis feed in that regard by the time a decision had to be made on filing exceptions to my initial decision since none were filed In the circumstances the elapsed period of about 9 months between the trial and her opting not to pursue the case further was reasonable Also presenting a very close question was the issue of whether Ledford had approved the antiunion letter writ ten by his secretary and ultimately I credited her ac count that she acted alone only after accepting Ledford s 11th hour statement that he was out of business As stated in the initial decision there would have been no point in his sanctioning the letter if he had an unwaver ing intent permanently to shut down Conclusions Accordingly I find that there were substantial justifi cations for instituting and pursuing with the case through trial and the beefing stages and accordingly that the ap plication for fees and expenses should be denied On the foregoing findings and conclusions the record in the unfair labor practice case the pleadings, and pur suant to Section 102 153 of the Board s Rules and Regu lations I hereby issue the following recommended' ORDER The instant application 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 293 NLRB No 117