United Kiser Services, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 15, 2010

30-CA-018129 (N.L.R.B. Oct. 15, 2010)

JD–59–10
Norway, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITED KISER SERVICES, LLC
and Cases 30-CA-18129 (E)
CONSTRUCTION AND GENERAL
LABORERS UNION, LOCAL 1329
and
NORTHERN WISCONSIN REGIONAL
COUNCIL OF CARPENTERS
Andrew S.Gollin, Esq., of Milwaukee, WI,
for the General Counsel.
David W.Croysdale, Esq., and Elizabeth M. Drew, Esq., of Milwaukee, WI,
for the Respondent Employer.
SUPPLEMENTAL DECISION AND ORDER
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on June
10 and 11, 2009, in Iron Mountain, Michigan, pursuant to individual Complaints and Notice of
Hearing in the subject cases (complaint) issued on December 31, 20081, by the Regional
Director for Region 30 of the National Labor Relations Board (the Board). Thereafter, by order
of the Regional Director, the cases were consolidated. The underlying charges were filed by
Northern Wisconsin Regional Council of Carpenters (the Charging Party or Carpenters) alleging
that United Kiser Services, LLC, (the Respondent Employer or Employer) and Construction and
General Laborers Union, Local 1329, (the Respondent Union or Laborers), has engaged in
certain violations of Section 8(a)(1), (2), (3) and (5) and 8(b)(1)(A) and (b)(2) of the National
Labor Relations Act (the Act). The Respondent Employer and the Respondent Union filed
timely answers to the complaint denying that they had committed any violations of the Act.
On August 28, 2009, I issued my decision in this matter and dismissed the complaint
allegations that the Respondent Employer and the Respondent Union violated Section 8(a)(1),
(2), (3) and (5) and Section 8(b)(1)(A) and (b)(2) of the Act, respectively, by entering into a
collective-bargaining agreement at a time when the Charging Party was the recognized
representative of the unit. In that regard, I found that the allegations were barred by Section
10(b) because the Charging Party filed them more than six months after it knew or should have
known about the conduct in question.

1 All dates are in 2008 unless otherwise indicated.
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The General Counsel and the Charging Party each filed exceptions and a supporting
brief. The Respondent Employer and the Respondent Union each filed an answering brief to
the General Counsel’s and the Charging Party’s exceptions. The General Counsel filed reply
briefs to both the Respondent Employer’s and the Respondent Union’s answering briefs. The
Charging Party filed a reply brief to the Respondent Employer’s and the Respondent Union’s
answering briefs.
On July 22, 2010, the Board affirmed my decision in United Kiser Services, 355 NLRB
No. 55 (2010), finding that the Respondents have established that the Charging Party had
constructive notice of the facts when its business representative Greg Dhein visited the shop on
January 11, prior to the commencement of the 10(b) period. The Board also sustained my
dismissal of paragraph 10 of the complaint that alleged the Respondent Employer refused to
negotiate with the Charging Party from August 25 to October 22, holding that the Employer’s
request to delay bargaining so that it could consult with legal counsel was reasonable under the
circumstances of the case.
On August 19, 2010, the Respondent Employer filed with the Board an Application for
Attorney’s Fees and Expenses pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504
(1982) (EAJA), and Section 102.143 of the Board’s Rules and Regulations (Application). The
Board issued an Order referring the matter to me on August 24, 2010. On September 13, 2010,
the General Counsel filed an Opposition To and Motion to Dismiss Respondent’s Application.
Thereafter, on October 1, 2010, the Respondent Employer filed a brief in opposition to the
General Counsel’s Motion to Dismiss.
A. Propriety of an Award
EAJA, as applied through Section 102.143 of the Board’s Rules and Regulations,
provides that a “respondent in an adversary adjudication who prevails in the proceeding, or in a
significant and discrete substantive portion of that proceeding” and who meets certain eligibility
requirements relating to net worth, corporate organization, number of employees, etc. is eligible
to seek reimbursement for certain expenses incurred in connection with that proceeding.2
Section 102.144 states that a reimbursement of such expenses will be awarded “unless the
position of the General Counsel over which the party has prevailed was substantially justified”.
To meet the burden, the General Counsel must establish that he was substantially justified at
each stage of the proceeding, i.e., at the time of the issuance of the complaint, taking the matter
through hearing, and in filing exceptions to the judge’s decision. An examination of the
circumstances and evidence available to the General Counsel at these junctures is required in
order to determine whether the General Counsel has carried his burden.
In order to determine whether the General Counsel has satisfied the test, it is necessary
first to identify what constitutes substantial justification. The Board has stated that substantial
justification does not mean substantial probability of prevailing on the merits,3 and that it is not
intended to deter the agency from bringing forward close questions or new theories of the law.4

2 The Respondent Employers request contained in its Application to Withhold Information
from Public Disclosure in accordance with Section 102.147(g)(1)(2) of the Board’s Rules and
Regulations is deferred in light of my decision herein. Therefore, the financial data submitted by
the Employer shall remain under seal pending the outcome of this matter.
3 Jim’s Big M, 266 NLRB 665 (1983).
4 Laborers Funds of Northern California, 302 NLRB 1031 (1991); Craig & Hamilton Meat
Co., 276 NLRB 974 (1985).
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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 unique
circumstances of each case, a standard of reasonableness will apply.
B. The 8(a)(1) and (5) Allegations
1. The Complaint Allegations
The underlying complaint alleged that the Respondent Employer recognized the
Charging Party as the representative of its millwright craft unit employees but when it secured
additional production work to be performed at its facility it assigned the work to employees
represented by the Respondent Union rather then to the Charging Party. Additionally, the
complaint alleged that the Respondent Employer granted recognition to, entered into an
agreement and since about March 1, 2007, has maintained and enforced a collective-bargaining
agreement with the Respondent Union as the exclusive representative of employees performing
the additional work even though the Respondent Union was not the exclusive collective-
bargaining representative of the employees performing the work. The complaint further alleged
that the Respondent Employer refused to bargain with the Charging Party and thereafter,
unlawfully delayed bargaining.
2. Evidence of the General Counsel
During the course of the initial unfair labor practice hearing before me, the General
Counsel introduced testimony and documentary evidence that during their 2006 collective-
bargaining negotiations the Employer and the Carpenters added to their shop addendum
agreement a definition of the categories of work that would be performed by employees
represented by the Charging Party who were classified as shop worker, shop worker I, and shop
worker II. An examination of the shop addendum agreement and testimony received from
Charging Party shop steward Michael Manowski establishes that employees represented by the
Respondent Union were performing tasks listed in the shop agreement, rather than those
employees represented by the Charging Party.5
It is noted that when the Respondent Employer introduced the marine equipment line of
work in the shop, it entered into a collective-bargaining agreement with the Respondent Union
that included a union security clause and permitted the employees of the Respondent Union to
perform the marine equipment work.6 Accordingly the General Counsel, when issuing the

5 In my initial decision, at fn 12, I did not address the General Counsel’s or the Charging
Party’s arguments regarding this issue due to my decision to dismiss the complaint primarily
relying on Section 10(b). I note, however, that work which was added by the Respondent
Employer in 2007 such as sand blasting, spray painting and production welding falls under the
job descriptions of the shop addendum agreement. While the Board did not find it necessary to
pass on my finding that the Carpenters had actual notice of the violations outside of Section
10(b) through Manowski, the evidence presented by the General Counsel conclusively
established that this was a triable issue and it was necessary for me to make credibility
resolutions.
6 Under Board law, an employer violates Section 8(a)(1), (2), (3) and (5) of the Act when it
recognizes and enters into a collective-bargaining agreement containing, among others, a
union-security clause, with a labor organization that does not represent an uncoerced majority
of the employees in the unit, or at a time when the employer was bound to a collective-
Continued
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subject complaint that alleged those Section 8(a)(1), (2), (3) and (5) allegations, was
“substantially justified” in doing so.7
Additionally, when it issued the underlying complaint, the General Counsel possessed
evidence that between January 1, 2006 and June 2008, Dhein visited the Employer’s facility on
eight occasions. Indeed, the General Counsel introduced his written day-timer and spiral-
notebook of telephone calls that reflected records of meetings and appointments. The purpose
of this evidence was to establish that Dhein exercised due diligence by visiting the facility on a
number of occasions prior to the Section 10(b) cut-off period of February 21, but no one
affiliated with the Employer or the Respondent Union ever informed him that laborers were
performing the marine equipment line of work nor that the Respondent Union and the Employer
had executed a collective-bargaining agreement that covered the work. Indeed, it was not until
June 19, a time period within Section 10(b), when the Employer and the Carpenters held a
negotiation session to open the existing shop agreement for modification, that Dhein first
learned that laborer employees had been hired in early 2007 to perform the work.
I ultimately found, and the Board agreed, that by January 11 the Employer had hired
approximately 11 new individuals and there were now more than twice as many employees in
the shop represented by the Laborers as were represented by the Carpenters. Accordingly, the
Board determined that the employees’ who were not represented by the Carpenters was “open
and obvious” and Dhein should have discovered this had he exercised reasonable diligence.
For these reasons, the Board concluded that the Carpenters had constructive notice of the
alleged violations more than 6 months before it filed its initial charge on August 21, and the
allegations were time barred under Section 10(b).
The above finding was based primarily on the testimony of Dhein. However, when the
General Counsel issued the complaint it possessed evidence that Dhein had visited the facility
on a number of occasions during 2007 and 2008 without discovering or being informed by the
Employer or the Respondent Union that new employees had been hired to perform the marine
equipment line of work and a collective-bargaining agreement had been executed between the
Employer and the Respondent Union covering these employees.
Under these circumstances, I find that the General Counsel was “substantially justified”
when it issued the subject complaint and continued to litigate these issues while the case was
pending before the Board. David Allen Co., 335 NLRB No. 64 (2001).
3. Refusal to Bargain Allegations
The General Counsel alleged in paragraph 10 of the complaint that between August 25
and October 22, the Respondent Employer refused to bargain with the Charging Party and by
its actions unlawfully delayed bargaining in violation of Section 8(a)(1) and (5) of the Act.
The Board, in sustaining my recommendation that paragraph 10 of the complaint should
be dismissed, held that the Employer’s request to delay bargaining so that it could consult with
legal counsel was reasonable under the circumstances of the case.
_________________________
bargaining agreement with another labor organization covering the work or employees at issue.
Advanced Architectural Metals, Inc., 351 NLRB 1208 (2007).
7 The General Counsel also submitted documentary evidence that the Charging Party is and
has been the recognized Section 9(a) representative of the shop employees for the last thirteen
years.
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First, it should be noted that this allegation was not dismissed by me or the Board under
the auspices of Section 10(b). Rather, it was based on the totality of the record and the
circumstances of this case.
Second, as background to this allegation the record establishes that on March 24, the
Charging Party sent the Employer a reopener letter to commence negotiations over a successor
agreement. Not hearing from the Employer, Dhein telephoned Jeff Kiser to schedule
negotiations and they agreed to meet on June 19, even though the Charging Party was
available to meet in May 2008. The parties met on June 19, and exchanged proposals. The
next bargaining session was scheduled for early July 2008 but was cancelled by the Employer.
The parties then resumed bargaining on August 14 and scheduled a third session for
September 4. However, on August 25, the Employer sent the Charging Party an e-mail
cancelling the September 4 bargaining session after it received the underlying unfair labor
practice charge filed by the Charging Party on August 21. Bargaining did not resume until
October 22, a period of approximately two months.
The General Counsel relied on Board precedent found in Dresser Industries, 264 NLRB
1088 (1982) (employer cannot postpone or cancel bargaining in response to representational
issues) and Butera Finer Foods, Inc., 343 NLRB 197 (2004) (employer cannot cease statutory
and contractual obligations in response to issues over union status as bargaining
representative), that fully supported this argument.
Under these circumstances, I find that when the General Counsel alleged the violation in
paragraph 10 of the complaint and continued arguing its position before the Board, it was
“substantially justified” in doing so.
Conclusions of Law
1. United Kiser Services, LLC, prevailed in a significant and discrete substantive portion
of the underlying unfair labor practice proceeding, which was an adversary adjudication.
2. The General Counsel’s position in issuing the subject complaint was “substantially
justified.”
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8

8 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.
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ORDER
The General Counsel’s Motion to Dismiss United Kiser Services, LLC, Application for an
Award of Costs and Attorney’s Fees under the Equal Access to Justice Act is granted.
Therefore, the Application is dismissed.
Dated: October 15, 2010
_____________________
Bruce D. Rosenstein
Administrative Law Judge