Danzansky Goldberg Memorial Chapels, Inc

DANZANSKY GOLDBERG CHAPELS 903 Danzansky Goldberg Memorial Chapels, Inc and Drivers, Chauffeurs, and Helpers Local Union 639, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Cases 5-CA-11956(E), 5- CA-11971(E), 5-CA-12443, and 5-CA- 13052(E) 23 October 1984 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER AND DENNIS On 8 March 1984 Administrative Law Judge Stephen J Gross issued the attached supplemental decision Applicant Danzansky Goldberg Memorial Chapels, Inc filed exceptions and a supporting brief and the General Counsel filed an answering brief 1 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 2 in light of the exceptions and briefs and has decided to affirm the judge s rulings, findings, and conclusions and to adopt the recom mended Order ORDER It is ordered that the application of the Appli cant, Danzansky Goldberg Memorial Chapels, Inc , Rockville, Maryland, for an award under the Equal Access To Justice Act be dismissed ' Inasmuch as we are dismissing the Applicant s application on its merits we deny the General Counsel s motion to strike the Applicant s brief which was accepted because of administrative oversight for ex ceeding the 50 page limit Sec 102 46(J) of the Board s Rules and Regu lations 2 The Applicant s request for oral argument is denied as the record and the briefs adequately present the issues and the positions of the parties SUPPLEMENTAL DECISION [Equal Access to Justice Act] I INTRODUCTION STEPHEN J GROSS Administrative Law Judge On February 11 1982 I issued a decision that concluded that Danzansky Goldberg Memorial Chapels (Dan zansky Goldberg or the Company) had committed some of the violations of the Act alleged by the General Counsel but that the Company had not committed nu merous others On September 30 1982 the Board af firmed my findings and conclusions' except in certain limited respects 2 Danzansky Goldberg thereafter applied for an award of $24 998 76 in attorneys fees pursuant to the Equal Access to Justice Act (EAJA) 3 My conclusion is that the General Counsel was sub stannally justified in bringing action against the Compa ny and that no award of attorneys fees is warranted The reasoning that led me to this conclusion is discussed in part II below But the parties have raised several prelimi nary matters that first need to be considered Ii PRELIMINARY MATTERS The General Counsel s Motion to Strike One of the alleged discnminatees in the underlying case Robert Ontko obtained a second job (in addition to his job with the Company) The decision in the underly ing case concluded that Ontko could not handle the physical demands of two jobs and that the two jobs led to among other things a deterioration in Ontko s per formance as an employee of Danzansky Goldberg In the Company s reply to the General Counsel s answer in this (EAJA) proceeding the Company con tends that the General Counsel knew or should have known prior to the issuance of the complaint that Ontko had taken on the burden of two jobs In support of that contention the Company s reply cites a portion of an affidavit that Ontko had provided to the General Counsel prior to the issuance of the complaint in the un denying proceeding and attaches a portion of that affida vit to the reply (Shortly after this EAJA proceeding got underway the General Counsel provided all Jencks Act materials including Ontko s affidavit to Danzansky Goldberg in response to a request by the Company under the Freedom of Information Act ) The General Counsel has moved to strike the portion of Ontko s affidavit attached to the Company s reply The heart of the General Counsel s motion to strike in his contention that under the Board s EAJA regulations a determination concerning whether the General Counsel was substantially justified in issuing a complaint is to be based solely on the facts of record in the underlying pro ceeding It is not the function of an EAJA proceeding the General Counsel argues to subjectively probe the Regional Director s thought processes in light of evi dence never in the record in order to argue that the de cision to issue the complaint itself was not reasonable (Motion to strike at 2-3) My conclusion is that the General Counsel s motion to strike should be denied Under EAJA eligible private parties are entitled to re imbursement of legal fees and cost unless the Govern ment can show that its action was substantially justified Nothing in EAJA or its legislative history provides that determinations about whether the Government was sub '264 NLRB 840 (1982) 2 See id at fn 2 3 Danzansky Goldberg also seeks any additional fees and expenses it incurs in this proceeding subsequent to the date of its application (Octo her 29 1982) 272 NLRB No 139 e 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantially justified are to be based solely on the evidentia- ry record in the underlying case. It is easy to construct any number of hypothetical situations in which EAJA's purposes could best be met by allowing a party to show that the record in the underlying case was misleading re- garding whether the Government was justified in bring- ing the action. (In one recent EAJA case, for example, the General Counsel contended that its position in the underlying proceeding had been weakened by the un- foreseeable unavailability of prospective witnesses. In that EAJA proceeding the General Counsel submitted the affidavits of such unavailable witnesses that had been ob- tained during the investigation of the unfair labor prac- tice charge. The applicant in that proceeding apparently did not object to that submission and it was duly taken into account by the administrative law judge.)4 On the other hand, it is inconceivable that Congress intended EAJA proceedings either to be probes of the thought processes of the Government officials responsi- ble for instituting litigation or to be plenary examinations of whether such officials conducted sufficiently broad prelitigation investigations. 5 Here, however, the object of the General Counsel's motion to strike is merely the affidavit of a witness in the underlying proceeding. There is no reason to believe that allowing either the Government or an EAJA applicant to use nonrecord ma- terials of that nature would either unduly lengthen EAJA proceedings or amount to a probe of anyone's thought processes.6 Danzansky-Goldberg's Motion to Compel Production of Documents Shortly after this EAJA proceeding began the Compa- ny requested the following documents from the General Counsel: The entire investigatory files (excluding all formal documents), including but not limited to all final investigatory reports; all affidavits; all internal memoranda relating to either the decision to issue a complaint in the [underlying] unfair labor practice case or to seek to set aside [certain related settle- ment agreements]; and any file memoranda relating to interviews with the Charging Party . . . [and] neutral and Company witnesses. As touched on above, the General Counsel did make available to the Company all Jencks Act materials that had been turned over during the unfair labor practice hearing. (Technically the Jencks Act materials were 4 Metallic Lathers Local 46, JD-43-83 slip op 9, Case 2-RC-6021(E) (1983). 5 Cf Iowa Parcel Service, 266 NLRB 392 at fn 1 (1983) 6 There do not seem to be any cases that specifically address this point The parties refer to two lines of cases typified by Alspach v District Di- rector of Internal Revenue, 527 F Supp 225, 228 (D MD 1981), and Natu- ral Resources Defense Council v Environmental Protection Agency, 703 F.2d 700, 707 (3d Cu. 1983) But those cases go to an altogether different issue (having to do with whether the Government must substantially Justify the governmental acts that led to the litigation—such as the Improper is- suance of a regulation or the incorrect claim of tax liability—or Just the litigation itself) See generally Spencer v NLRB, 712 F 2d 539 (DC Cif 1983) made available pursuant to the Company's Freedom of Information Act request rather than the Company's re- quest for production of documents.) But in other respects the General Counsel denied the Company's request for production of documents. That denial led the Company to file a motion to compel production of documents. In that motion, the Company asks that I order the General Counsel to provide to the Company the documents it had previously requested from the General Counsel, and that should the General Counsel fail to comply with my order, I forthwith grant the Company's application for award of attorneys fees and expenses.1 Since the General Counsel has provided the Company with all Jencks Act materials, the Company's motion is moot to that extent. As for the remaining documents sought by Danzansky-Goldberg, the short answer is that Section 102.118 of the Board's Rules and Regulations precludes the granting of the motion. And nothing in the Board's EAJA rules supersedes the prohibition contained in Section 102.118: Lion Uniform, Janesville Apparel Divi- sion, Case 10-CA-12948(E), telegraphic order dated No- vember 15, 1982. In theory, I suppose, I could deny the Company's motion for production of documents, but then go on to conclude that, nonetheless, a failure of the General Counsel to provide the documents to Dan- zansky-Goldberg raises a presumption that the General Counsel had failed to appropriately investigate the charges that led to this proceeding. But even assuming that in some circumstances such a presumption could be made without unduly circumventing the purposes of Sec- tion 102.118, it does not seem to me that there is any- thing about the circumstances of this proceeding that warrant that kind of presumption. Accordingly, Dan- zansky-Goldberg's motion to compel production of doc- uments is denied in all respects.5 Financial Criteria The General Counsel's answer to the Company's appli- cation claimed that the application failed to provide suffi- cient financial and ownership information to permit a de- termination of whether the Company's net worth, to- gether with that of its affiliates, in fact totaled less than $5 million. In response, Danzansky-Goldberg submitted affidavits providing additional information concerning its finances and affiliates. It appears from that information that Danzansky-Goldberg does in fact meet EAJA's fi- nancial standards. And while the data the Company sub- mitted have not been tested through a hearing process or the like, the General Counsel has not suggested that he has any reason to believe they may be erroneous. 7 The Company first made its motion to compel production on Decem- ber 30, 1982 By order dated January 26, 1983, I denied that motion as premature but granted the Company the right to renew the motion later in the proceeding Danzansky-Goldberg did so in a "renewed motion" dated June 15, 1983 8 Danzansky-Goldberg claims that its motion to compel production of documents presents "novel and significant issues" under EAJA worthy of oral argument, and requests that I provide an opportunity for oral argu- ment regarding the motion That request is denied The documents before me provide a sufficient basis for ruling on the motion, and the parties will have further opportunity to discuss the matter on brief to the Board DANZANSKY GOLDBERG CHAPELS 905 The Merits of the Company s EAJA Application The evidence relating to the various unfair labor prac tice allegations is discussed in considerable detail in the Board s decision This supplemental decision will assume that the reader is familiar with the underlying decision will discuss only those facts that are particularly note worthy for EAJA purposes and will generally rely on the underlying decision s recitation of the evidence for the conclusions reached here Fanning s Job Assignments Relative to antiunion employee Jenkins Danzansky Goldberg s management did keep Fanning away from public contact And Burchell claimed that the Company continually assigned demeaning jobs to Fanning while giving the prestigious ones to Jenkins Moreover there was ample evidence of marked union animus on Gold berg s part Finally management referred specifically to Fanning as a troublemaker at least partially because of his protected activities At some point however an employee s behavior can be sufficiently reprehensible that even given the forego ing kinds of evidence the employer s actions against the employee are so obviously warranted that it would be unreasonable for the General Counsel to allege unlawful discrimination as the basis for the employer s acts The question is whether that point was reached here The question is a close one But given the strength of the General Counsel s prima facie case (particularly Bur chell s testimony and the evidence relating to Goldberg s animus) my conclusion is that the General Counsel was substantially justified in contending that the Company s assignment of jobs to Fanning was affected by Fanning s proumon stance Ontko s Job Assignments Again as in Fanning s case the deciding factor is Bur chell s testimony about management s dislike of Ontko because of his support for the Union and about the job discrimination against Ontko Given those claims by Bur chell it was reasonable for the General Counsel to con tend that Ontko s protected activities affected the Corn pany s choice of job assignments—notwithstanding the compelling lawful reasons the Company had for treating Ontko as it did Ontko s Discharge Danzansky Goldberg s EAJA case regarding the Gen eral Counsel s allegations about Ontko s discharge would be a powerful one but for one factor Ontko did not in fact make the mistake that the Company claimed precipi tated his discharge Manifestly one could reasonably con dude that management would have been less quick to reach the wrong conclusion about Ontko s performance on the day he was fired had Ontko not been prounion Burchell s Discharge There was testimony that had it been credited could have led the Board to conclude that Danzansky Gold berg hired Burchell because she was antiunion Had the Board reached that conclusion it could readily have also concluded that the Company would look for ways to rid itself of her once she began supporting the Union Van ous facets of Burchell s protected activity did irritate management And there was testimony that not long before Tickner fired Burchell he stated that he would soon be rid of her Finally the actions by Burchell that led to her discharge were not so heinous as to compel the Company to fire her Absent ' the unique complica tions involving Dubin at least a lighter form of disci plme would have been entirely reasonable Under the circumstances the General Counsel s allegation about Danzansky Goldberg s firing of Burchell was substantial ly justified 9 The Impression of Surveillance Allegation The statement that the General Counsel alleged gave the impression of surveillance was made by Goldberg at a time when one of the employees who overheard it rea sonably believed that the management was using a coy ertly installed microphone to eavesdrop on conversations in the employee lounge and the other two employees in volved soon came to share that belief The General Counsel could reasonably conclude that many kinds of statements that would be harmless in most situations would be coercive in the circumstances at hand and that Goldberg s remark came within that category The Chapel Cleaning A decertification election was held on July 16 1980 Management expected a vote favoring decertification by a wide margin But that did not happen because Bur chell to management s surprise voted against decertifi cation The following day Burchell and Ontko were as signed a task that the Company had never before given the funeral directors or apprentices cleaning the chapel An antiunion funeral director was also assigned an oner ous cleaning task but for a shorter period The Board concluded that the Company made the as signments in good faith but the statement of facts alone shows that the General Counsel had a reasonable basis for claiming that the episode amounted to unlawful dB cnmination against Burchell and Ontko The Alleged Promise of a Cleaning Contract Burchell s testimony painted one picture Goldberg s another The issue was strictly one of credibility resolu tion Moreover Burchell s testimony was not so implau sible (given the situation at the funeral home) that the General Counsel should have discounted it Restricting Union Adherents to the Employee Lounge Despite the Company s rule that employees take their breaks only in the employee lounge the Company al lowed antiunion employee Jenkins to spend his nonwork 9 Dubin s discharge was inextricably linked to Burchell s and accord ingly the litigation concerning her discharge did not amount to a signifi cant and discrete substantive portion of the proceeding Sec 102 143 of the Board s Rules and Regulations 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time in other areas The Board dismissed the General Counsel s allegation regarding this matter but only after concluding that the issue is a close one Clearly the General Counsel was substantially justified in making the allegation The General Counsel s Exceptions I will assume that under some circumstances the Gen eral Counsel would not be justified in excepting to a rec ommended decision even though he was justified in lift gating the case through all earlier stages but much of the underlying proceeding herein hinged on credibility resolution and the Board is empowered to resolve ques lions of credibility differently from the administrative law judge and sometimes does so Darling Inc 267 NLRB 476 (1983) Moreover the Board agreed with the General Counsel that my findings contained some factual errors 264 NLRB 840 at fn 2 The Board of course is in a better position than I am to determine whether a party filing exceptions with the Board was justified in doing so But based on the consid erations discussed above my recommendation is that the Board conclude that the General Counsel acted reason ably in excepting to my recommended decision and order Danzansky Goldberg s Cooperation with the General Counsel The Company points out that it cooperated fully with the General Counsel s investigation of the various charges brought by the Union and it urges that that should be considered when evaluating whether the Gen eral Counsel was justified in pursuing the underlying gation I agree Because of that cooperation the General Counsel was promptly apprised of such matters as Fan ning s and Ontko s shortcomings as employees and of Tickner s contentions regarding the facts of Burchell s and Dubin s trip to the airport It is that cooperation that has made some of the issues raised by the EAJA application so close The issues in this proceeding would have been much easier to re solve—in the General Counsel s favor—if during the General Counsel s investigation of the charges the Com pany had withheld information from him regarding the bases for its behavior On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed" ORDER The application of Danzansky Goldberg Memorial Chapels Inc for an award under the Equal Access to Justice Act is denied 10 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