Ellison Bakery

National Labor Relations Board - Board Decisions

Sep 27, 1991

304 N.L.R.B. 1131 (N.L.R.B. 1991)

1131
304 NLRB No. 149
ELLISON BAKERY
1 The name of the Charging Party has been changed to reflect the new offi-
cial name of the International Union.
2 The decision was incorrectly dated May 3, 1990.
3 The Applicant urges that the judge could not have considered its May 3,
1991 reply brief since he issued his decision that date. The General Counsel
correctly notes, however, that the reply brief was due May 1, 1991, and, there-
fore, the Applicant’s reply brief was untimely filed.
1 JD–289–90.
Ellison Bakery, Inc. and Teamsters Local Union No.
414, International Brotherhood of Teamsters,
AFL–CIO.1 Case 25–CA–19313
September 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 3, 1991,2 Administrative Law Judge Harold
Bernard Jr. issued the attached supplemental decision.
The Applicant filed exceptions and a supporting brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the judge’s recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the application of the Applicant,
Ellison Bakery, Inc., Fort Wayne, Indiana, for attorney
fees and expenses under the Equal Access to Justice
Act is denied.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
HAROLD BERNARD JR., Administrative Law Judge. I
issued the decision in the underlying case on December 11,
1990, dismissing the complaint in its entirety,1 and in the ab-
sence of exceptions being filed thereto, the Board adopted
my findings and conclusions. Respondent in said proceeding
here makes application for an award of attorney fees and
other expenses pursuant to the Equal Access to Justice Act,
Pub. L. 96–481, 94 Stat. 235 and Section 102.143 of the
Board’s Rules and Regulations, having filed said application
on March 8, 1991, contending that substantial justification
did not exist for issuing the complaint or for its continuing
prosecution, that there was no reasonable basis of law and
fact in the General Counsel’s position.
By memorandum dated April 10, 1991, counsel for Gen-
eral Counsel filed a position in opposition to this application,
denying said allegations and also arguing that any hourly
charges in excess of $75 per hour are not reasonable.
As I find, for reasons noted below, that the General Coun-
sel was substantially justified in issuing the complaint and in
its continuing prosecution, it is unnecessary to address any
fee computation method issue. Iowa Parcel Service, 266
NLRB 392, 395 fn. 11 (1983).
The Substantial Justification Issue
A major issue was whether Respondent had terminated 30
employees for engaging in union activities and in order to
benefit full-time employees and thereby discourage them
from supporting the Union. A central factor in General
Counsel’s case was that on the very afternoon that union or-
ganizers first appeared handbilling plant employees, Re-
spondent terminated the 30 employees as alleged in the com-
plaint together with Respondent advanced reasons deemed
inconclusive by the General Counsel, and reasonably so, this
action raised the not unreasonable view that, together with
other reports of Respondent knowledge concerning union ac-
tivities by employees, the timing for the terminations was
suspicious, especially given the large scale of terminations
involved and a reasonable view that other options for their
timing were not necessarily prohibitive for Respondent on
the basis of changing company policy based upon admitted
dynamics in Respondent’s business. Further, a key piece of
evidence did not, according to the General Counsel, emerge
until late in the hearing, that being the handwritten notes of
First Shift Supervisor Glen Osterman tending to show he
began calling off a third shift employee before the union
handbilling started. Even so the General Counsel could not
know at that stage (and certainly not in the precomplaint
stage) how his thoroughgoing cross-examination into Re-
spondent’s many witnesses on the point had been received by
me, or what weight I would be willing to attach to this evi-
dence—which in fact was substantial as it later turned out
in my analysis. I have no doubt whatsoever that it was not
until all the facts had emerged, been expertly marshalled by
counsel and the parties’ positions analyzed in depth that only
then could a reasoned decision be reached on the basis of a
myriad of factors, including inferences, credibility resolu-
tions, and legal analysis only made possible by a complete
record and the litigation process.
A second issue centered on Respondent’s letter to employ-
ees dated May 19, 1988, in which could fairly be read a pos-
sible threat of plant closure and employee discharge because
in it Respondent’s president observed that in a unionized set-
ting jobs have been lost and companies closed. In White
Plains Lincoln Mercury, 288 NLRB 1133 (1988), the Board
carefully drew a distinction between an employer’s hypo-
thetical observation in a letter of a plant closing if a union
made excessive bargaining demands which suggested such
action only if the employer were forced into it for reasons
outside its control which the Board found lawful, and a sec-
ond type of letter wherein unionization was equated outright
with unprofitability resulting in a plant closure. The second
letter was deemed an unlawfully coercive threat in the course
of an intense antiunion campaign. The question before me as
to which category the Respondent’s May 19, 1988 letter to
employees fell into clearly involved a close question of fact
and law and it cannot be said that the General Counsel was
not substantially justified in the choice he made to include
this allegation in the complaint.
Suffice it to say that it was not until the decision-making
stage that I decided against the General Counsel’s remaining
allegations of unlawful interrogation and alleged unlawful at-
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 EAJA, § 504 (a)(1).
3 S. Rep. No. 96–253, 96th Cong. 1st Sess. at 6 (1979); H. Rep. No. 96–
1418, 96th Cong., 2d Sess. at 10 (1980), and Pierce v. Underwood, 487 U.S.
522 (1988).
4 Enerhaul, Inc., 263 NLRB 890 fn. 3 (1982); Iowa Parcel Service, supra.
5 Westerman, Inc., 266 NLRB 392 (1983), enfd. 749 F.2d 14 (6th Cir.
1984), and Iowa Parcel Service, supra.
tribution of employee discharge to their union activities by
Respondent based upon credibility resolutions guided by the
results arising from the crucible of penetrating examination
under oath on the witness stand and after consideration of
counsels’ valuable insights on brief. Prior thereto, the wit-
nesses’ testimony during the General Counsel’s case in chief
stood for what was alleged in the complaint, and supplied the
necessary substantial justification.
Under EAJA, an award of attorney fees and other ex-
penses shall be made to a prevailing party unless ‘‘the posi-
tion of the agency as a party to the proceeding was substan-
tially justified or . . . special circumstances make an award
unjust.’’2 Whether or not the Government’s action was ‘‘sub-
stantially justified’’ is accessed in terms of reasonableness.
As expressed by Congress and the United States Supreme
Court:
The test of whether or not a government action is sub-
stantially justified is essentially one of reasonableness.
Where the government can show that its case had a rea-
sonable basis both in law and fact, no award will be
made.3
While the burden of establishing substantial justification is
on the Government, the fact that it lost its case does not give
rise to any presumption that it acted unreasonably nor must
the General Counsel establish a prima facie case as a pre-
requisite to finding that its position was reasonable in law
and fact.4
To these principles it should be added that the General
Counsel is entitled to resolve conflicting inferences, and this
case presented facts from which many possible and differing
inferences could be drawn, in favor of the violation alleged.5
I find the complaint and its prosecution alike reasonably
based in fact and law and substantially justified. Accord-
ingly, I issue the following recommended
ORDER
The application of Ellison Bakery, Inc. for an award under
the Equal Access to Justice Act is denied.