Midwest Telephone Service, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 4, 2013

08-CA-038901 (N.L.R.B. Feb. 4, 2013)

JD–03–13
Girard, Ohio
1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MID-WEST TELEPHONE SERVICE, INC.
and Cases 08-CA-038901
08-CA-039168
08-CA-039297
08-CA-039398
WILFREDO PLACERES, DUSTIN PORTER, 08-CA-039334
BEN FANNIN and MICHAEL WILLIAMS
Melanie Bordelois, Esq.,
for the Acting General Counsel.
Hans Nilges, Esq.,
for the Respondent.
SUPPLEMENTAL DECISION AND ORDER
MARK CARISSIMI, Administrative Law Judge. This is a Supplemental Decision and
Order regarding an application for an award of allowable fees and expenses pursuant to the
Equal Access to Justice Act (EAJA), Pub. L 96-481, 94 Stat. 2325 and Section 102.143 of the
Rules and Regulations of the National Labor Relations Board (the Board) filed by Mid-West
Telephone Service, Inc. (the Respondent).
Statement of the Case
On September 21, 2012, the Board issued a Decision and Order1 in this proceeding
finding that the Respondent committed violations of Section 8(a)(4), (3), and (1) of the Act. In
its decision, at footnote 1, the Board noted that no exceptions were filed to my dismissal of
certain allegations of the complaint, including the allegation that the Respondent violated the Act
by discharging employee Wilfredo Placeres.2

1 358 NLRB No. 145.
2 On December 10, 2012, the Board issued an unpublished order denying the Respondent’s
motion for reconsideration regarding my finding that the Respondent violated Section 8(a)(4) of
the Act by discharging employee Ben Fannin.
JD–03–13
2
On October 19, 2012, the Respondent filed with the Board its EAJA application in the 5
instant case. On November 15, 2012, the Acting General Counsel filed a motion to dismiss the
Respondent’s application and a supporting brief. On December 6, 2012, the Respondent filed a
brief in opposition to the Acting General Counsel’s motion to dismiss its EAJA application. On
December 14, 2012, the Respondent filed a petition for an amendment of Section 102.145 of the
Board’s Rules and Regulations to increase its attorneys’ fees. On January 7, 2013, the Acting 10
General Counsel filed a response to the Respondent’s petition for an amendment. On January 17,
2013, the Board issued an order referring the Respondent’s EAJA application to me for
appropriate action.
On the basis of the entire record, including the briefs filed by the Respondent and the 15
Acting General Counsel, I deny the Respondent’s application because I find that the Acting
General Counsel was substantially justified in litigating the allegation in question.
The Respondent’s Application
20
EAJA and Section 102.143 of the Board’s Rules and Regulations set forth the eligibility
requirements under the statute. A corporation which has a net worth exceeding $7 million or
which has more than 500 employees is ineligible to seek to recover attorneys’ fees under EAJA.
Attached to its application, the Respondent has submitted documents which I find meet the
threshold eligibility requirements to receive an award under EAJA25
In its application, the Respondent seeks an award of attorney’s fees under EAJA only
with respect to the dismissed complaint allegation regarding the discharge of employee Wilfredo
Placeres. The consolidated complaint which issued in the underlying unfair labor practice
proceeding alleged that Placeres was discharged in violation of Section 8(a)(3) and (1) on April 30
13, 2010. The Respondent notes that after it had discussions with Regional Office personnel and
Placeres, it agreed to reinstate him if he would withdraw the charge that he filed in 08-CA-
038901. On April 8, 2011, the Respondent reinstated Placeres to his former position and on July
26, 2011, Placeres submitted a withdrawal request in 08-CA-038901. The Regional Director,
however, refused to approve the withdrawal request. Accordingly, counsel for the Acting 35
General Counsel continued to prosecute the complaint allegations regarding the discharge of
Placeres at the hearing held on October 11-13, 2011. On December 28, 2011, I issued a decision
dismissing the complaint allegation regarding the discharge of Placeres based on the non-Board
settlement between Placeres and the Respondent. The Acting General Counsel did not file
exceptions to the dismissal of this complaint allegation.40
The Respondent contends that it is the prevailing party regarding the dismissal of the
complaint allegation regarding the discharge of Placeres. It further contends that the Acting
General Counsel was not substantially justified in refusing to approve the withdrawal request of
Placeres and litigating his allegedly unlawful discharge.45
Attached to its application, the Respondent submitted a statement of attorneys’ fees. The
statement does not specifically itemize the amount of time spent in defending the complaint
allegations regarding the discharge of Placeres. Since this allegation was consolidated with
charges filed by three other employees, the Respondent divided the total number of hours its 50
attorneys had devoted to defending this case by four and multiplied that figure by $125 an hour.
JD–
3
The Respondent claims that it is entitled to an award of attorneys’ fees in the amount of $9427 in 5
defending the allegations of the complaint regarding the discharge of Placeres. It also claims an
additional amount of $987.50 for preparing the instant EAJA application.
The Acting General Counsel’s Motion to Dismiss
10
The Acting General Counsel first argues that the Respondent is not a prevailing party in a
significant and discrete portion of the unfair labor practice proceeding within the meaning of the
EAJA and the Board’s Rules and Regulations, Section 102.143(b). In support of this position, the
Acting General Counsel notes that the Board has held that when the General Counsel withdraws
a complaint pursuant to a settlement agreement between the parties a respondent does not 15
become a prevailing party. National Electrical Contractors Assn., Birmingham Chapter, 313
NLRB 770 (1994); Dame & Sons Construction Co., 292 NLRB 1044, 1045 (1989); Carthage
Heating Co., 273 NLRB 120, 122-123 (1984). The Acting General Counsel claims that my
decision to dismiss the complaint allegation regarding the discharge of Placeres is of a similar
vein because it was based on a private settlement agreement between the Respondent and 20
Placeres. The Acting General Counsel notes that Placeres was reinstated with a written guarantee
that the Respondent would not enforce a previously executed noncompetition agreement. The
Acting General Counsel argues that the Respondent would not have had to take any of those
actions if the complaint allegation regarding Placeres’ termination had been dismissed on the
merits and therefore the Respondent was not a prevailing party in the underlying proceeding.25
The Acting General Counsel further contends that if I find that the Respondent is a
prevailing party, the Acting General Counsel was substantially justified in not approving the
proffered withdrawal request and litigating the complaint allegation regarding the discharge of
Placeres.30
The Acting General Counsel also contends that the Respondent’s application should be
dismissed because it does not identify or adequately document the fees and expenses of the
Respondent’s attorneys in connection with the litigation of the complaint allegations regarding
the discharge of Placeres. Finally, the Acting General Counsel contends that the application 35
should be dismissed because the Respondent did not initially serve the Charging Parties with a
copy of its application.3
Analysis and Conclusions
40
The Applicant’s Status as a Prevailing Party
Section 102.143(b) of the Board’s Rules and Regulations provides that:
A respondent in an adversary adjudication who prevails in that proceeding, or in a 45
significant and discrete substantive portion of that proceeding, and who otherwise
meets the eligibility requirements of this section is eligible to apply for an award

3 The Respondent admits that the Charging Parties were not initially served with its application but
asserts they were properly served on November 19, 2012.
JD–
4
of fees and other expenses allowable under the provisions of section 102.145 of 5
these rules.
As noted above, the Respondent contends that it is the prevailing party regarding the
dismissal of the complaint allegation regarding the discharge of Placeres. The Acting General
Counsel argues that the Respondent is not a prevailing party within the meaning of the Board’s 10
Rules and Regulations because the dismissal of the complaint allegation regarding Placeres’
discharge was based upon my approval of the private settlement agreement between the
Respondent and Placeres and not upon the underlying merits.4
I approved the withdrawal request of Placeres over the objection of the Acting General 15
Counsel and after the circumstances of Placeres’ discharge and the non-Board settlement
between Placeres and the Respondent were fully litigated and briefed. In the cases relied on by
the Acting General Counsel, the General Counsel voluntarily withdrew a complaint after the
private parties had entered into a non-Board adjustment of the underlying dispute. In the instant
case, the Acting General Counsel refused to approve the withdrawal request of Placeres and 20
litigated the complaint allegation regarding his allegedly unlawful termination until I issued my
decision in the underlying case. Included in this litigation was the question of whether it was
appropriate for me to approve Placeres’ withdrawal request based upon the non-Board settlement
between the Respondent and Placeres. At the hearing, the Respondent produced evidence
regarding both the underlying facts regarding Placeres’ discharge and the circumstances 25
surrounding his withdrawal of the charge. The posthearing briefs filed by the Acting General
Counsel and the Respondent addressed both the circumstances surrounding Placeres’ allegedly
unlawful discharge and the issue of whether it was appropriate for me to approve Placeres’
withdrawal request over the Acting General Counsel’s objection. In their briefs, both parties
addressed Independent Stave Co., 287 NLRB 740 (1987), the Board’s seminal decision regarding 30
the factors used to determine whether it is appropriate to approve a non-Board settlement. After
considering all the facts and applying the factors set forth in Independent Stave, I concluded, in
agreement with the Respondent’s position, that it was appropriate to approve Placeres’
withdrawal of the portion of his charge relating to his discharge and dismissed the complaint
allegation that he was discharged in violation of Section 8(a)(3) and (1) of the Act on that basis.35
The Acting General Counsel’s refusal to withdraw the complaint allegation regarding
Placeres based on the non-Board settlement distinguishes the instant case from those relied on by
the Acting General Counsel in support of his position. In the instant case, the Acting General
Counsel actively opposed the approval of the non-Board settlement and it required a judicial 40
finding to resolve the issue and impose the non-Board settlement.
In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health &
Human Resources, 532 U.S. 598 (2001), the the Supreme Court held that in order to be awarded
attorney’s fees under the Fair Housing Amendments Act (FHAA) and the Americans with 45
Disabilities Act (ADA) a party had to either secure a judgment on the merits or a court ordered
consent decree in order to qualify as a “prevailing party.” In its decision, the Court noted that
Blacks Law Dictionary 1145 (7th ED. 1999), defined the term “prevailing party” as “[A] party in

4 The Acting General Counsel does not dispute, and I find, that the complaint allegation regarding the
discharge of Placeres constitutes a significant and discrete portion of the unfair labor practice proceeding.
JD–
5
whose favor a judgment is rendered, regardless of the amount of damages awarded . . .” 5
Buckhannon Board & Care Home, supra at 603.
Applying the definition of a prevailing party utilized by the Court in Buckhannon, it is
my view that the Respondent is the prevailing party in the instant case within the meaning of the
Board’s Rules and Regulations and the EAJA. The Respondent was the proponent of the 10
dismissal of the complaint allegation regarding the discharge of Placeres on the basis of the non-
Board settlement between it and Placeres. The Acting General Counsel opposed my approval of
the non-Board settlement between the private parties. Since I agreed with the Respondent’s
position that the non-Board settlement should be approved and the complaint allegation
regarding Placeres be dismissed on that basis, it appears clear that the Respondent is the 15
prevailing party with respect to this issue.
Whether the Acting General Counsel’s Position was Substantially Justified
A prevailing party under the EAJA will not be entitled to its attorney’s fees and expenses 20
if the General Counsel’s position was “substantially justified.” NLRB Rules and Regulations
Section 102.144(a). The burden of proof in demonstrating “substantial justification” is on the
General Counsel. Id.
In Galloway School Lines, 315 NLRB 473 (1994), the Board indicated the following with 25
respect to the substantial justification test:
In order to determine whether the General Counsel has satisfied this test, it
is necessary first to identify what constitutes substantial justification. The Board
has stated that substantial justification does not mean substantial probability of 30
prevailing on the merits, and that it is not intended to deter the agency from
bringing forward close questions or new theories of law. The Supreme Court has
defined the phrase “substantial justification” under EAJA as “justified to a degree
that could satisfy a reasonable person” or having a “reasonable basis both in law
and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Thus, in weighing the 35
unique circumstances of each case, a standard of reasonableness will apply.
[footnotes omitted.]

See also Meaden Screw Products Co., 336 NLRB 298, 300 (2001).
40
In order to determine whether the Acting General Counsel’s position was substantially
justified regarding the litigation of the complaint allegations regarding Placeres it is necessary to
set forth some of the procedural history of the case. On April 20, 2010, Placeres filed the charge
in 08-CA-038901 alleging that he was discharged in violation of Section 8(a)(3) and (1) of the
Act. On September 28, 2010, Charging Party Porter filed the charge in 08-CA-039168. On 45
November 23, 2010, the Acting General Counsel issued an order consolidating cases, amended
consolidated complaint and notice of hearing in those cases. Thereafter, Charging Party Fannin
filed the charge in 08-CA-039297 on January 5, 2011, and amended charge was filed in that case
on June 21, 2011. Charging Party Williams filed the charge in 08-CA-039334 on February 9,
2011. Charging Party Fannin filed the charge in 08-CA-039388 on March 18, 2011. On June 24, 50
2011, the Acting General Counsel issued an order consolidating cases, second amended
JD–
6
consolidated complaint and notice of hearing (the complaint) in these cases. A trial was held 5
regarding the allegations of the complaint on October 11, 12, and 13, 2011, and I issued a
decision in the matter on December 28, 2011. On September 21, 2012, the Board issued its
Decision and Order adopting my decision with additional rationale.
In the instant case, as noted above, I dismissed the complaint allegation regarding the 10
April 13, 2010, discharge of Placeres based on the non-Board settlement that Placeres and the
Respondent entered into. While there is no signed agreement between Placeres and the
Respondent, the record established that the two parties agreed that Placeres would be reinstated
to his former position, the noncompetition agreement that he had previously signed would not be
operative and that Placeres would not receive any backpay. In exchange, Placeres would submit 15
a withdrawal of the unfair labor practice charge that he filed in 08-CA-038901.
In March 2011, Placeres was reinstated and on April 8, 2011, the Respondent sent a letter
stating that it would not enforce the noncompetition agreement that he had previously signed. On
July 26, 2011, Placeres submitted his first withdrawal request to the Regional Director for 20
Region 8. When the Regional Director failed to prove his withdrawal request, on September 11,
2011, Placeres submitted a second withdrawal request, which the Regional Director again
refused to approve. At the hearing held in this matter in October 2011, counsel for the Acting
General Counsel represented that Placeres was due approximately $20,000 in backpay if it was
established that he was discharged in violation of the Section 8(a)(3) and (1) of the Act.25
Over the objection of the Acting General Counsel, I approved the withdrawal request of
Placeres relating to the allegations of the complaint regarding his alleged unlawful discharge and
dismissed that portion of the complaint. 5 In approving Placeres’ withdrawal of the charge
relating to the allegations involving his discharge, I applied the standards set forth in 30
Independent Stave, supra. In Independent Stave, the Board indicated that it would examine all of
the surrounding circumstances to determine whether a non-Board settlement should be approved
including but not limited to:
(1) whether the charging party(ies), the respondent(s), and any of the individual 35
discriminatee(s) have agreed to be bound, and the position taken by the General
Counsel regarding the settlement; (2) whether the settlement agreement is
reasonable in light of the nature of the violations alleged, the risks inherent in
litigation, and the stage of litigation; (3) whether there has been any fraud,
coercion or duress by any of the parties in reaching the settlement; and (4) 40
whether the respondent has engaged in a history of violations of the Act or has
breached settlement agreements resolving unfair labor practice disputes.[Id. at
743.]
The Acting General Counsel concedes that both Placeres and the Respondent agreed to 45
be bound by their private agreement and that there was no evidence of fraud, coercion or duress
in reaching that agreement. The Acting General Counsel contends, however, that he was
substantially justified in opposing the non-Board settlement between Placeres and the

5 I did not approve the withdrawal of the entire charge in Case 08-CA-038901 because the charge also
supported a complaint allegation regarding a threat made to another employee.
JD–
7
Respondent because his position was reasonable considering the nature of the violation alleged, 5
the risks inherent to the litigation and the stage of litigation when his opposition to the settlement
was asserted.
The complaint allegation that Placeres was discharged in violation of Section 8(a)(3) and
(1) was grounded on the theory that the Respondent terminated Placeres because he was seeking 10
assistance from the Union in connection with a dispute over pay he was having with the
Respondent. The Acting General Counsel contends that the Board has noted the “serious nature
of an 8(a)(3) violation” in determining whether it is appropriate to approve a non-Board
settlement. Frontier Foundries, Inc., 312 NLRB 73, 74 (1993). The Acting General Counsel
alleges that the remedy for such a serious violation requires something close to complete remedy 15
and that the settlement in the instant case did not provide for such a remedy. The Acting General
Counsel argues that the complaint allegation regarding the discharge of Placeres involved the
normal risks of litigation
The Acting General Counsel further contends that he was also reasonable in opposing the 20
settlement given the stage of the litigation. In this connection the Acting General Counsel notes
that in Independent Stave, supra, the settlement was reached 10 days after the issuance of a
complaint. In the instant case, the agreement to resolve the charge that Placeres filed was not
reached until nearly a year after the termination and 10 months after the Acting General Counsel
had issued the first complaint in the matter. The Acting General Counsel notes that in the period 25
between the alleged unlawful discharge of Placeres and the Respondent’s offer to settle his case
four other charges were filed against the Respondent involving allegations of threats and
discrimination in violation of Section 8(a)(4), (3), and (1).6 In the Acting General Counsel’s
view, opposition to a non-Board settlement without a notice to employees informing them of
their statutory rights was reasonable in this context.30
In my decision on the merits of this case, I acknowledged that the allegation that the
Respondent violated Section 8(a)(3) and (1) of the Act in discharging Placeres was indeed a
serious allegation but that, in my view, the most critical factor in deciding to settle a case are the
risks inherent litigation. If the Acting General Counsel had proved at the trial that Placeres was, 35
in fact, discharged in violation of Section 8(a)(3) and (1) he would be entitled to a full remedy,
including backpay and the posting of a notice. The trial revealed, however, a substantial
weakness in the Acting General Counsel’s case when the facts surrounding the departure of
Placeres from the Respondent’s employ were examined. The resolution of the question of
whether Placeres was unlawfully discharged in violation of the Act, in my view, depended in 40
large measure upon which version of the facts surrounding Placeres’ departure from the
Respondent’s employment on April 13, 2010 was more credible.
According to Placeres, he called the Respondent’s office from a jobsite and spoke to the
office manager. Placeres testified that he told the office manager that money had been taken out 45
of his paycheck and that he needed to speak to either the Respondent’s president or vice
president. Placeres testified that he also asked the office manager for the telephone number of the
Union. Placeres testified that he called the office later in the day and spoke to Brian Singleton, an

6 In my initial decision I found a number of the complaint allegations based on these newly later filed
charges to have merit.
JD–
8
acknowledged supervisor. According to Placeres, when he told Singleton that he wanted to speak 5
with the president or vice president, Singleton replied that they had already given him the reason
for the deduction and that Placeres was not in the Union so he could not call it. 7 Placeres further
testified that at the end of the workday on April 13, 2010, Singleton arrived at the jobsite that
Placeres was working on and informed him that he was fired. When Placeres asked Singleton
why he was being fired, Singleton said that he was “following orders from the owners.” On 10
direct examination, however, Placeres admitted that he did not know if he understood correctly
what Singleton had said to him. On cross-examination, Placeres reiterated that he may have
misunderstood what Singleton said to him because his English was not very good and that he
was upset when this conversation occurred.
15
The Respondent’s primary defense to the allegation that Placeres was discharged in
violation of Section 8(a)(3) and (1) for attempting to enlist the Union’s aid in assisting him with
his pay dispute, was the testimony of Singleton. In this connection, Singleton testified that
Placeres was not in fact discharged but rather quit his employment in anger after
misunderstanding Singleton’s explanation of the wage rate he was being paid on the job he was 20
working at.
As noted above, on both direct and cross-examination, Placeres admitted that he may
have misunderstood what Singleton said to him on April 10, 2010. After observing Placeres at
the trial and considering the substance of his testimony, I had substantial doubts about his 25
credibility as a witness regarding certain key facts involving his alleged unlawful discharge.
Ultimately, it was my concern about Placeres’ reliability and the consequent weakness of the
Acting General Counsel’s case regarding his discharge that led me to the conclusion that it was
appropriate to approve the non-Board settlement between Placeres and the Respondent. My
conclusions regarding the unreliability of certain aspects of Placeres’ testimony does not 30
establish it was unreasonable for the Acting General Counsel to continue to litigate the
allegations of the complaint regarding his discharge at the trial.
As the Board noted in David Allen Co., 335 NLRB 783 (2001):
35
Credibility issues which are not subject to resolution by the General Counsel in
the investigative stage of proceeding on the basis of documents or other objective
evidence are, in the first instance, the exclusive province of the administrative.
law judge. Accordingly, where the General Counsel is compelled by the existence
of a substantial credibility issue to pursue litigation, and thereafter presents 40
evidence which, if credited, would constitute a prima facie case, the General
Counsel’s case has a reasonable basis in law and fact and is substantially justified.
Barrett’s Contemporary & Scandinavian Interiors, 272 NLRB 527 (1984).
[Id. At 785-786.]
45
See also Golden Stevedoring Co., 343 NLRB 115 (2004).

7 At the trial, Singleton specifically denied that Placeres had asked him for the Union’s phone
number.
JD–
9
Had I found Placeres to be a more credible witness I may have concluded that the Acting 5
General Counsel had supported the allegation in the complaint regarding his discharge by a
preponderance of the evidence. If that were the case, in view of the other unfair labor practices
committed by the Respondent, I might have determined that the Acting General Counsel’s
objection to my approval of the settlement was well taken. Since my view regarding the
credibility of Placeres played an important role in deciding to approve the non-Board settlement 10
between him and the Respondent, I conclude that the Acting General Counsel’s decision to
oppose the non-Board settlement and litigate the issue of Placeres’ discharge to be substantially
justified as it met the standard of reasonableness that is the touchstone in determining cases
involving an application for fees under the EAJA.
15
In view of my conclusion that the Acting General Counsel’s position was substantially
justified with regard to the complaint allegation regarding the discharge of Placeres, I need not
decide whether the Respondent’s application should be dismissed because it did not properly
itemize expenses and was not initially served on all parties to the litigation.
20
Having concluded that the Acting General Counsel has met the burden of proving that his
position in this proceeding was substantially justified with respect to the allegation in the
complaint regarding the discharge of Placeres, I issue the following recommended8
25
ORDER
The Acting General Counsel’s motion to dismiss the Respondent’s application is granted
and the Respondent’s application for an award of allowable fees and expenses is hereby
dismissed. 30
Dated, Washington, D.C., February 4, 2013.
35
____________________
Mark Carissimi
Administrative Law Judge

8 If no exceptions are filed as provided by Sec. 102.154 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 purposes.