Northwest Communities Education Center

National Labor Relations Board - Administrative Judge Opinions

Oct 22, 2010

19-CA-031777 (N.L.R.B. Oct. 22, 2010)

JD(SF)-42-10
Granger, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
NORTHWEST COMMUNITIES EDUCATION
CENTER
and Cases 19-CA-31777 (E)
19-CA-31983
TEAMSTERS LOCAL 760
and Case 19-CA-31843
SAIDA M. BIRRUETA, an Individual
and Case 19-CA-31911
JESUS SOSA, an Individual
Daniel Apoloni, Esq. and Richard C. Fiol, Esq.
Seattle, WA, for the General Counsel
Gary Lofland, Esq., Lofland & Associates,
Yakima, WA, for the Respondent
SUPPLEMENTAL DECISION AND ORDER
Gerald A. Wacknov, Administrative Law Judge. This is a Supplemental Decision and
Order pursuant to the Respondent’s application for an award of allowable fees and expenses
under the Equal Access to Justice Act (EAJA), 5 U.S.C. Section 504 and Section 102.143, et.
seq., of the Rules and Regulations of the National Labor Relations Board (the Board).
I. PROCEDURAL HISTORY
I issued a Decision in this case on June 18, 2010, finding that the Respondent had
violated the Act in certain respects and also finding that the Respondent had not violated the Act
in certain other respects. No party filed exceptions to this decision, and on August 5, 2010, the
Board issued an Order adopting the findings and conclusions contained therein.
On August 6, 2010, the Respondent filed an Application for Award of Attorney Fees and
Costs with the Board, and by Order dated August 18, 2010, the Board referred the
Respondent’s application to the undersigned.
On September 10, 2010, Pursuant to an Order to Show Cause dated September 2,
2010, the General Counsel filed a response opposing the Respondent’s application. The
Respondent filed no reply to the General Counsel’s opposition.
Neither the Respondent nor the General Counsel have requested a supplemental
hearing on this application, and I find none is needed to resolve the matters presented.
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II. RESPONDENT’S FINANCIAL ELIGIBILITY
The Respondent attached to its application the appropriate ruling by the Internal
Revenue Service, dated November 8, 1994, showing that it qualifies for exempt status as an
organization described in section 501(c)(3) of the Internal Revenue Code. See Section
102.147(b)(1) of the Board’s Rules and Regulations. It therefore meets the eligibility
requirements for an award of allowable fees and expenses pursuant to EAJA.
III. THE UNDERLYING CASE
The complaint in the underlying case contained five substantive allegations. I found that
one employee, Jesus Sosa, the recognized spokesperson for the employees, was disciplined on
December 22, 2008 for requesting a meeting with the Respondent’s board of directors regarding
employees’ working conditions and other related matters, and that by this conduct the
Respondent violated Section 8(a)(1) of the Act. I also found that on June 23, 2009, the
Respondent unilaterally announced and changed its lunch hour policy and refused to bargain in
good faith with the Union over this matter in violation of Section 8(a)(5) of the Act.
I dismissed three allegations of the complaint. Two of the allegations pertained to Sosa.
Thus, I found that the Respondent did not violate the Act by disciplining Sosa for speaking out
on behalf of employees during a staff meeting conducted by the Respondent’s executive
director; and that the Respondent did not violate the Act by further disciplining Sosa pursuant to
its alleged progressive discipline policy. I further found that the Respondent did not violate the
Act by refusing the request of employee Saida Biurrueta that she be permitted to have a co-
worker present as a witness during an interview with the executive director. During the course
of the hearing the General Counsel presented evidence supporting these compliant allegations,
and after the close of hearing provided argument and citations of authority in support of these
allegations.
IV. THE RESPONDENT’S CONTENTIONS
In its application the Respondent states, without further argument, as follows:
The position of General Counsel was not substantially justified because:
A. The testimony of Birrueta clearly and unmistakably demonstrated the purpose of
the meeting of March 19, 2009 was not disciplinary in nature. Birrueta did not
testify that she believed the meeting was disciplinary and also testified that she
had been told discipline would not be imposed.
B. The general counsel alleged that during a staff meeting on February 7, 2009
Sosa engaged in protected activity by “complaining about the discharge of former
staff members.” The evidence showed Sosa did not make such statements and
the employee who did was not disciplined.
C. Sosa’s verbal attack on another employee during the February 7, 2009 meeting
was clearly inappropriate and uncalled for.
D. The general counsel did not contest the reasons for the suspension of Sosa on
April 21st [2009], only the degree of discipline.
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E. General counsel did not consider the application of Section 10(c) to the facts
alleged.
V. ANALYSIS AND FINDINGS
The Respondent’s contentions are discussed seriatim.
The “counseling” of Birrueta took place over 2 days, and proved to be heated,
confrontational, and emotional to the point of causing Birrutea to feel ill as a result.
Despite assurances that the meeting was not disciplinary, Birrueta’s work performance
and attitude were criticized in a confrontational manner by the Respondent’s executive
director, even to the extent that Birrueta felt compelled to tell the executive director not to
yell at her. Under these circumstances, despite what Birrueta was told about the
purpose of the meeting, it was clearly reasonable for the Regional Director to include the
allegation in the complaint as the interview, while nominally non-disciplinary, was
certainly of a disciplinary rather than a “counseling” tenor.
The Respondent is incorrect that Sosa, during the February 7, 2009 staff
meeting, did not complain about the discharge of other staff members as alleged in the
complaint. In fact, as the underlying decision points out at page 10, lines 35–40, Sosa
vigorously complained to the executive director on behalf of the employees that the
employees considered the discharge of their coworkers to be unfair.
While I found that Sosa was disciplined for his criticism of a named coworker
rather than for complaining about the discharge of former coworkers, it was reasonable
for the Regional Director to include this allegation in the complaint. Thus, Sosa had
previously been unlawfully disciplined for attempting to bring similar issues before the
board of directors and, under the circumstances, the motive for this subsequent
discipline of Sosa was clearly a matter to be explored through an evidentiary proceeding.
The General Counsel made it very clear that the purpose of this complaint
allegation was to resolve the issue of whether the Respondent maintained a progressive
disciplinary policy; if so, even subsequent lawful discipline for an unrelated infraction
would have been premised on and thereby exacerbated by the earlier unlawful discipline
imposed on Sosa. Moreover, it was reasonable for the Regional Director to have relied
upon the executive director’s statement in an email to the General Counsel, during the
course of the region’s investigation, that “We did apply a progression of discipline to . . .
Jesus Sosa.”
The Respondent does not explain what it means by this final contention.
Although the Respondent states the General Counsel did not consider the application of
Section 10(c) of the Act, it would appear the Respondent is referring to Section 8(c) of
the Act, commonly referred to as the “freedom of speech” provision. I do not
understand the Respondent’s nonspecific contention in this regard, and therefore I find it
to be without merit.
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On the basis of the foregoing it is clear that the complaint was substantially
justified and, in addition, that each of the complaint allegations which I dismissed in this
proceeding were substantially justified. Glesby Wholesale, Inc., 340 NLRB 1059 (2003);
Golden Stevedoring Co., 343 NLRB 115 (2004); C. Factotum, Inc., 337 NLRB 1 (2001).
ORDER1
The Respondent’s application for an award of allowable fees and expenses is
denied.
Dated: October 22, 2010.
___________________
Gerald A. Wacknov
Administrative Law Judge

1 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 purposes.