Craft Electric Co.

.. 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Craft Electric Co. and Local 136, International Brotherhood of Electrical Workers, AFL-CIO. Case 10-CA-22811(E) July 31, 1990 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On January 23, 1990, Administrative Law Judge Philip P McLeod issued the attached decision The Applicant, Craft Electric Co (Craft), filed excep- tions 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 has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order We agree with the judge's conclusion that the General Counsel was substantially justified in issu- ing the complaint allegation that Craft had violated the Act by unilaterally discontinuing use of the Union's hiring hall In particular we observe that, in adopting the judge's dismissal of the complaint's hiring hall allegation, the Board found critical the credibility resolution concerning Craft's practice of hiring helpers 1 The Applicant argues, however, that the Union operated the hiring hall discnmmatonly, thus it could not have been an unfair labor practice for the Company to discontinue using the hiring hall, the General Counsel had in his possession evidence of this affirmative defense, and had the judge con- sidered the affirmative defense in the underlying case, 2 the judge could not in the supplemental de- cision have found the General Counsel substantial- ly justified in issuing the complaint's hiring hall al- legation We do not agree The evidence, which the Applicant insists shows that the General Counsel was not substantially jus- tified in issuing the complaint allegation, is an ex- tract from a deposition of a union business agent purportedly showing that the Union operated the hiring hall illegally and the Union's out-of-work list purportedly showing unexplained out-of-sequence referrals Even accepting the Applicant's character- ization of the documents, 3 we cannot agree that 1 We note that the judge was required to resolve this Issue because the Union's approval of Craft's practice of hiring helpers outside the contract was shown through evidence of an informal arrangement rather than a formal agreement 2 Member Oviatt did not participate in the underlying case 'Although not entirely clear, the Applicant apparently believes that the deposition shows the Union granted unlawful priority to union mem- the complaint allegation was not substantially justi- fied We have held that the General Counsel will be found to have acted with substantial justification in issuing a complaint whenever the General Counsel possesses, at the time the complaint is issued, evidence that could rea- sonably lead an administrative law judge to find a violation and does not possess evidence that clearly would defeat an allegation that the charged party has violated the law Lion Uniform, 295 NLRB 223 fn 32 (1987) (empha- sis added) We do not find that the deposition clearly established that the Union operated the hiring hall in such a manner as to relieve Craft of the contractual obligation to utilize the hiring hall Typically, this type of affirmative defense requires lengthy litigation to establish 4 See, e g, Plumbers Local 136 (Shaw Go), 280 NLRB 847, 854 (1986) We find that at most the deposition (and other in- formation to which the Applicant refers) could have alerted the General Counsel to an issue that might have warranted extended litigation Under these circumstances, we cannot say that the General Counsel should have decided on the basis of the investigation not to issue the com- plaint's hiring hall allegation Nor, given the nature of the affirmative defense Craft raised, do we be- lieve the General Counsel's investigation before is- suing complaint was insufficient 5 ORDER The recommended Order of the administrative law judge is adopted, and the application of the Applicant, Craft Electric Co, Birmingham, Ala- bama, for attorney fees and expenses under the Equal Access to Justice Act is denied, and the con- bers in referrals We observe that the implications of the deposition are not as conclusive as the Applicant insists 4 Consequently, even accepting the Applicant's assertion that Craft should have been allowed to litigate the affirmative defense in the unfair labor practice proceeding, we do not believe that the purported proce- dural error leads inevitably to the conclusion that the General Counsel was not substantially justified in Issuing the complaint's hiring hall allega- tion 5 The Applicant excepts to the judge's purported failure to address the General Counsel's justification for the complaint's unlawful subcontract- ing allegation The subcontracting and luring hall allegations concerned the same circumstances The judge found that resolution of the luring hall allegation depended on the Inferences drawn from the credited facts We Infer that the judge implicitly applied the same rationale to the sub- contracting allegation In any event, contrary to the Applicant's asser- tion, the judge did not dismiss the subcontracting allegation based on a finding that Craft had a past practice of subcontracting or a contractual right to subcontract, but on the finding (based on the credited evidence) that Craft had in fact not subcontracted We have examined the record, including the documentary evidence the General Counsel submitted in this proceeding, and we conclude that the General Counsel was substan- tially justified in issuing the complaint's unlawful subcontracting allega- tion , 299 NLRB No 43 CRAFT ELECTRIC CO 349 fidential financial statement attached to and incor- porated in the Applicant's application for fees shall be sealed and withheld from public disclosure under the provision of Section .102 147(g) of the Board's Rules and Regulations J Howard Trimble, Esq , for the General Counsel C V Stelzenmuller, Esq , of Birmingham, Alabama, for the Applicant SUPPLEMENTAL DECISION AND ORDER Equal Access To Justice Act PHILIP P MCCLEOD, Administrative Law Judge Craft Electric Co (the Applicant), has filed a timely applica- tion pursuant to the Equal Access To Justice Act, Pub L 96-481, 94 Stat 2325 (1980) (EAJA), and the Board's Rules and Regulations, Series 8, as amended, seeking $8,438 12 in fees and expenses for its successful defense of an unfair labor practice complaint alleging violations of Section 8(a)(1) and (5) of the National Labor Rela- tions Act (the Act) The underlying unfair labor practice complaint alleged that Craft Electric Co violated Section 8(a)(1) and (5) of the Act by unilaterally discontinuing use of the Union's referral/hiring hall procedure and subcontracting bar- gaining unit work, by interrogating employees concern- ing their union activities, threatening employees that it would not bargain with the Union if they chose it to rep- resent them for purposes of collective bargaining, threat- ening employees with discharge if they joined or en- gaged in activities on behalf of the Union, threatening employees that it would be futile for them to support the Union, and threatening employees to withhold benefits from them if they supported the Union A trial was conducted before me regarding those alle- gations on January 13 and 14, 1988 Following the sub- mission of posttnal briefs by the parties, I issued a deci- sion on April 22, 1988, dismissing the complaint in its en- tirety Thereafter, the Charging Party Union filed excep- tions and a supporting brief with the Board Respondent filed limited exceptions of its own, and a brief answering the exceptions of the Charging Party On May 17, 1989, the Board issued its Decision and Order adopting my recommended Order to dismiss the complaint In response to the application of Craft Electric Co for fees and expenses, counsel for General Counsel filed a timely answer and a motion to dismiss The motion to dismiss was based primarily on the argument that the ap- plication for fees and expenses was deficient in that it failed to set forth sufficient information to establish that Respondent meets all of the eligibility requirements to apply for an award Secondarily, the motion to dismiss argued that the position of counsel for the General Counsel in the underlying unfair labor practice hearing was "substantially justified" and that dismissal of the complaint resulted primarily from adverse credibility res- olutions On August 11, 1989, I issued an order denying that motion to dismiss Thereafter, on September 8, 1989, I issued, sua sponte, an order to show cause why my earlier order should not be revoked and why the employer's application should not be dismissed in view of certain Board decisions which appeared to render the Employer's application for an award of fees and expenses critically deficient for rea- sons paralleled to, although somewhat different from, the argument advanced by counsel for the Acting General Counsel in its initial motion to dismiss After considering the responses to my order to show cause, on October 18, 1989, I issued an order withdrawing my earlier order to show cause and reaffirming my earlier order denying the motion to dismiss based on the argument that the petition was critically deficient Thereafter, on November 24, 1989, counsel for the General Counsel filed a memoran- dum in support of its answer to the application for an award of fees and expenses EAJA provides for an award of fees and expenses to eligible parties who prevail in litigation before adminis- trative agencies unless the Government can establish that its position in the litigation was "substantially justified" While EAJA does not specifically define the term "sub- stantially justified," its legislative history establishes that standard "is essentially one of reasonableness" and it is not to be equated with "a substantial probability of pre- vailing" S Rep No 96-253, 96th Cong , 1st Sess 6-7 (1979), H R Rep No 96-1418, 96th Cong , 2d Sess 10- 11 (1980) Similarly, the Board has held that the presence or absence of a prima facie case is not determinative of whether an award of fees and expenses is appropriate pursuant to EAJA Wolf Street Supermarket, 266 NLRB 665 (1983) What is required is simply that the position of the General Counsel in the underlying unfair labor prac- tice proceeding have a reasonable basis m both law and fact I have carefully reviewed counsel for General Coun- sel's memorandum in support of its answer to the appli- cation for the award of fees and expenses, with particular emphasis on the written affidavits obtained by the Re- gional Office during its investigation of the unfair labor practice charge prior to issuance of the complaint I have also considered the agenda discussion and conclusions reached by the Board's Regional Office prior to issuance of the complaint' Finally, I have carefully reviewed my Decision in the underlying unfair labor practice proceed- ing For the following reasons, I conclude that the Gen- eral Counsel's position in the underlymg unfair labor practice proceeding was "substantially justified" The major issue in this case concerned the alleged 8(a)(5) unilateral change involving use of the Union's hiring hall While I found that no violation of the Act had occurred, and while that decision was not primarily based on credibility, my decision was in part due to not crediting the testimony of Union Business Manager Ro- berson My decision also rested in significant part on the weight to be attributed to various facts, and the infer- ences to be drawn from those facts It is not the function of the General Counsel to resolve such issues in the ab- 1 I note that certain portions of counsel for General Counsel's memo- randum in support of its answer amount to no more than disagreement and argument with my earlier decision dismissing the complaint Such ar- gument at this point is altogether inappropriate for my decision has been affirmed in its entirety by the Board 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sence of hearing. Such a weighing of facts and drawing of inferences requires the submission of a case to the fact finding process of hearing. Lathers Local 46 (Building Contractors), 289 NLRB 505 (1988). In this context, I am unable to find that the position taken by General Counsel was unreasonable. Rather, I conclude that the General Counsel's position on this issue was "substantially justi- fied." The underlying case also involved six incidents alleged as violations of Section 8(a)(1) of the Act. The alleged threat of discharge testified to by Gary F. Hadder was resolved primarily on credibility. The alleged unlawful threat of loss of benefits testified to by Gregory Marlin was resolved at least partially based on credibility. The alleged threat to withhold benefits testified to by Ronald W. Jones was dismissed on what might best be described as a failure of counsel for General Counsel to carry its burden of proof. I found that the circumstances sur- rounding the alleged incident were "somewhat ambigu- ous," thereby making it unclear that alleged statements to Jones were in fact the result of his support for the Union. I note that Jones' affidavit to the Board given during the investigation of this case did not contain those • same ambiguities. The ultimate resolution of such issues could easily have turned in either direction based on subtle nuances which cannot appropriately be resolved by the General Counsel based on a Regional Office in- vestigation, but rather are matters which must appropri- ately be placed before an administrative law judge. The other three incidents which were placed before me as alleged violations of Section 8(a)(1) of the Act all involved single statements made in one-on-one conversa- tions. Whether considered individually or as a group, these three single statements did not represent a signifi- cant portion of this case. The alleged threat not to bar- gain with the Union even if employees chose it to repre- sent them for purposes of collective bargaining, testified to by Kenneth J. Adams, was dismissed by me in part based on facts establishing that Adams was a statutory supervisor which were not contained in the affidavit taken during the investigation of this case. My dismissal of that allegation was also partly based on my finding that Adams was not "an altogether disinterested witness" and my resulting decision to discredit his testimony. The alleged interrogation of employee Hadder by Su- pervisor James McCutchen was dismissed by me based on a combination of factors, but primarily because the entire context of the conversation showed that McCut- chen's statements were not intimidating or threatening. The context of that conversation was fully revealed only by the testimony of both Hadder and McCutchen. Craft Electric Co., however, did not supply the Regional Office with any statement from McCutchen during the investigation of the unfair labor practice charge. The de- cision of counsel for the General Counsel to place that issue before an administrative law judge cannot therefore be said to be unreasonable. The same is true of the al- leged threat of futility of employees to be represented by the Union testified to by Jeffery M. Garrett. This allega- tion, like the one discussed immediately above, involved a single statement allegedly made by McCutchen. More- over, this allegation concerning a single statement by a single supervisor to a single employee represents such an insignificant portion of the overall case before me that, standing along, it cannot be said to have any measurable weight. For the reasons explained above, I find that the posi- tion taken by counsel for the General Counsel in the un- derlying unfair practice proceeding was reasonable and was "substantially justified." On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER It is ordered that the application for fees and expenses filed by Craft Electric Co. is dismissed. 2 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.