Abell Engineering & Mfg.

National Labor Relations Board - Board Decisions

Sep 12, 2003

340 N.L.R.B. 133 (N.L.R.B. 2003)

ABELL ENGINEERING & MFG. 133
Abell Engineering & Manufacturing, Inc. and Sheet
Metal Workers’ International Association, Local
Union No. 20, a/w Sheet Metal Workers’ Inter-
national Association, AFL–CIO. Cases 25–CA–
25966(E) and 25–CA–26263(E)
September 12, 2003
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND
WALSH
On January 17, 2003, Administrative Law Judge C.
Richard Miserendino issued the attached supplemental
decision. The Applicant filed exceptions, a supporting
brief, and a reply 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 supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this Sup-
plemental Decision and Order.
On September 13, 1999, the judge issued his decision
in the underlying unfair labor practice case involving the
Applicant. On October 18, 2002, the Board reversed the
judge’s 1999 decision and dismissed the consolidated
complaint in its entirety.1 On November 15, 2002, the
Applicant timely filed an application for an award of
attorney’s fees and expenses under the Equal Access to
Justice Act (EAJA), 5 U.S.C. § 504 (1982). The applica-
tion alleged, inter alia, that the General Counsel was not
substantially justified in prosecuting the underlying un-
fair labor practice case, in particular the 8(a)(3) and (1)
allegations involving employee Richard Gist’s discharge
on October 2, 1998. In his supplemental decision, the
judge found substantial justification in favor of the Gen-
eral Counsel. For the reasons stated below, we adopt this
finding and deny the application.
In Galloway School Lines, 315 NLRB 473 (1994), the
Board summarized the principles relating to the substan-
tial 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 sub-
stantial probability of 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 jus-
tification” under EAJA as “justified to a degree that

1 338 NLRB 434 (2002).
could satisfy a reasonable person” or having a “reason-
able 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 rea-
sonableness will apply.
Id. at 473 (fns. omitted). Accord: Inter-Neighborhood
Housing Corp., 321 NLRB 419 (1996), enf. denied 124
F.3d 115 (2d Cir. 1997).
We find the General Counsel’s reliance on a Wright
Line2 legal theory to prosecute Gist’s October discharge
was reasonable. In the underlying unfair labor practice
case, there was a dispute over what activity motivated
this discharge. The General Counsel contended that Gist
was fired for all of his protected union activity, i.e., for
attempting to organize the Applicant’s sheet metal shop
workers throughout 1998. The Applicant contended that
Gist was fired for a single act, i.e., for breaching a duty
of loyalty to the Applicant when he solicited welder
David Bautista to take a job with a union contractor on
October 2, 1998. Because of this dispute over the Appli-
cant’s motivation for Gist’s discharge, as well as over
whether Gist’s solicitation of Bautista was permissible, a
Wright Line analysis was required.
We further find that the General Counsel’s view—that
Gist’s solicitation of Bautista was protected—was rea-
sonable. The judge thought that Gist’s solicitation of
Bautista supported a reasonable inference that Gist had
sought to assist the Union by attempting to do indirectly,
what he could not do directly, that is, obtain another
member for the Union. Thus, the judge accepted the
General Counsel’s position and found that Gist’s solicita-
tion of Bautista was an extension of Gist’s union orga-
nizing and fell within the broad protective ambit of Sec-
tion 7.
The Board’s reversal of the judge on this point does
not mean the General Counsel’s position was not sub-
stantially justified. See Teamsters Local 741 (A.B.F.
Freight), 321 NLRB 886, 890 (1996). The Board ana-
lyzed Gist’s solicitation of Bautista differently than ei-
ther the parties or the judge seemed to have fully antici-
pated. The Board reviewed several cases (see 338 NLRB
434, 435, and fn. 3) to explore whether Gist had lost the
protection of the Act when he solicited Bautista. Critical
to this review was the Board’s finding, based on the
credited record, that Gist’s organizing activity had ceased
when he attempted to recruit Bautista to work for another
employer, and that he pursued Bautista with the full
knowledge that if Bautista took that job the Respondent
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 1983 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 989 (1992).
340 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134
would lose one of only three employees in the unit. Ac-
cordingly, the Board held Gist’s attempts to induce
Bautista to quit were unrelated to organizing the Respon-
dent’s employees or improving their conditions of em-
ployment with the Respondent. In this context, the
Board ultimately found Clinton Corn Processing, 194
NLRB 184 (1971), to be “most analogous” in support of
a dismissal in Gist’s situation. Even then, the Board took
Clinton Corn Processing a step farther and identified, for
the first time, the size of the work force as an important
factor to be examined in this kind of situation.
In the underlying case, the General Counsel did not at-
tempt to distinguish Clinton Corn Processing. Instead,
the General Counsel argued that Gist’s solicitation of
Bautista was comparable to the situation presented in
M.J. Mechanical Services, 324 NLRB 812, 813 (1997).
While we recognize that neither Clinton Corn Processing
nor M.J. Mechanical Services is directly on point, the
Board found certain features of Clinton Corn Processing
to be more applicable to Gist’s situation. However, the
fact that the General Counsel sought to extend M.J. Me-
chanical Services to another factual scenario does not
make his position unreasonable for EAJA purposes.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the application of Abell Engineering & Manu-
facturing, Inc., Indianapolis, Indiana, for attorney’s fees
and expenses under the Equal Access to Justice Act is
denied.

Raifael Williams, Esq., for the General Counsel.
James H. Hanson, Esq., of Indianapolis, Indiana, for the Re-
spondent.
SUPPLEMENTAL DECISION
[EQUAL ACCESS TO JUSTICE ACT]
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
On November 15, 2002, counsel for the Respondent, Abell
Engineering & Manufacturing, Inc., filed an application for
attorney’s fees and expenses pursuant to the Equal Access to
Justice Act (EAJA), 5 U.S.C. § 504 (1982), as amended, fol-
lowing the entry of an Order by the National Labor Relations
Board on October 18, 2002, reversing this administrative law
judge’s decision in the underlying unfair labor practice pro-
ceeding, thereby dismissing the complaint, and reinstating the
settlement agreement in Case 25–CA–25966.1 On January 10,

1 In addition to its application for an award of fees and expenses, the
Respondent filed an unopposed motion to withhold confidential finan-
cial information from public disclosure. On consideration of that mo-
tion, and the reasons stated therein, the motion is granted and it is rec-
ommended that the financial statements attached as Exh. A thereto shall
be withheld from public disclosure.
2003, counsel for the General Counsel filed an unopposed mo-
tion to file an answer out-of-time, along with an answer oppos-
ing the application on the ground that the General Counsel’s
position was “substantially justified.” 5 U.S.C. § 504(a). Be-
cause the General Counsel’s failure to file a timely answer was
not due to neglect or carelessness, and will not result in undue
prejudice to the Respondent, the unopposed motion is granted
and the answer out-of-time is accepted.
The Board’s Rules and Regulations Section 102.152 (a) con-
template that the determination on an application for an award
of fees and expenses under EAJA ordinarily will be made on
the basis of the record in the underlying proceeding. I find that
no further proceedings are necessary in order to make a deter-
mination in this case.
FINDINGS OF FACT
I. THE UNDERLYING CASE
The charge in Case 25–CA–25966 was filed by Sheet Metal
Workers’ International Association, Local Union No. 20, a/w
Sheet Metal Workers’ International Association, AFL–CIO
(Union) on April 2, 1998, alleging that Abell Engineering and
Manufacturing, Inc. (Respondent), violated Section 8(a)(1) and
(3) of the Act by refusing to hire or consider for hire union
applicants William Rogers, Dennis Wheeler, Charles Parsley,
and Mark Moran and by discharging on February 17, 1998,
Union Organizer Richard Gist because of his union activity.
The charge was amended on June 22, 1998, to allege that the
Respondent violated Section 8(a)(1) of the Act by threatening
to close the business if the employees chose to be represented
by a union.
On July 31, 1998, the Union and Respondent entered into a
settlement agreement, which was approved by the Regional
Director, whereby the Respondent agreed to offer reinstatement
to Richard Gist, pay a specified amount of backpay to Mark
Moran, notify William Rogers that he, along with other appli-
cants, would be considered for employment on a non-
discriminatory basis, and post a notice. Gist was reinstated on
August 28, 1998, Moran was paid the gross amount of $2520,
Rogers was notified that he would be considered for employ-
ment if he applied, and a notice was posted from August 7–
October 8, 1998. The Respondent filed a notice of compliance
on October 14, 1998.
In the meantime, on October 2, 1998, the Respondent dis-
charged Gist again after he urged a coworker to take a higher
paying job with a unionized employer. The Union filed the
charge in Case 25–CA–26263 alleged that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discharging Richard
Gist because he engaged in union activities.
On November 20, 1998, the Regional Director set aside the
settlement agreement and issued a consolidated complaint es-
sentially alleging the violations asserted in the charge, as
amended, in Case 25–CA–25966, and the charge in Case 25–
CA–26263.
I found that the discharge was unlawful. I also found that the
Regional Director’s revocation of a settlement agreement re-
solving allegations of earlier violations of Section 8(a)(1) and
(3) (including an earlier discharge of Gist) was permissible, and
that the Respondent had committed a number of the presettle-
ABELL ENGINEERING & MFG. 135
ment violations alleged. The Board disagreed and found that,
under the circumstances, Gist engaged in disloyal conduct that
exceeded the protections of the Act. It therefore found that the
discharge did not constitute a valid basis for the Regional Di-
rector’s revocation of the settlement agreement concerning the
allegations of earlier violations of the Act. Thus, the Board
reinstated the settlement agreement and dismissed the consoli-
dated complaint in its entirety.
II. THE APPLICABLE LEGAL STANDARD
Having prevailed in the underlying case, the applicant may
be entitled to an award of fees and expenses incurred in connec-
tion with the adversary adjudication, if the General Counsel
cannot show that his position in the underlying litigation was
substantially justified, by showing that his position in the pro-
ceeding was reasonable in law and fact, or unless special cir-
cumstances make the award sought unjust. Pierce v. Under-
wood, 487 U.S. 552 (1988); Tyler Business Systems v. NLRB,
695 F.2d 73 (4th Cir. 1982). The fact that the General Counsel
did not prevail in this litigation does not raise a presumption
that his position was not substantially justified, nor must it be
established that the decision to litigate was based on a substan-
tial probability of prevailing. Westerman, Inc., 266 NLRB 799
(1983).
III. ANALYSIS AND FINDINGS
In its application for an award of fees, the Respondent argues
that the General Counsel’s factual position was not substan-
tially justified because it did not dispute the fact that Union
Organizer Richard Gist solicited employee Richard Bautista to
terminate his employment at the Respondent to work for a com-
pany with a unionized work force. It further argues that the
General Counsel’s legal position was not substantially justified
because the Board found that Gist’s conduct in soliciting
Bautista to work for unionized employer was not protected
under the Act and because the Board’s conclusion was based on
case law which the General Counsel did not attempt to distin-
quish. The arguments are unpersuasive.
In the case below, the credible evidence showed that Richard
Gist was a union organizer, who was discharged for his union
activity and subsequently was reinstated by the Respondent
pursuant to a settlement agreement. The undisputed facts
showed that on returning to work, Gist (1) unsuccessfully tried
to organize the Respondent’s sheet metal shop workers again,
(2) solicited employee Richard Bautista to terminate his em-
ployment with the Respondent to take a job making a higher
wage at a unionized company, and (3) that the Respondent had
knowledge of this activity. Finally, the undisputed facts
showed that the Respondent discharged Gist again.
Relying on a Wright Line2 type theory, the General Counsel
argued that Gist’s termination was motivated by his union ac-
tivity and that the Respondent’s reason for discharge was pre-
textual. The Respondent argued that “Gist’s discharge occurred
because of his breach of duty of loyalty that he owed to Abell
Engineering, and Abell Engineering therefore did not commit
an unfair labor practice in discharging Gist because it would

2 251 NLRB 1083 (1980), enfd. 662 F.2d. 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982).
have discharged Gist even in the absence of his union activi-
ties.” (R. posthearing Br. at pp. 16–17.) The Respondent con-
ceded that a Wright Line analysis was the appropriate legal
standard to be applied to the case. It also conceded that the
General Counsel had satisfied his initial evidentiary burden
under Wright Line. Instead, in its posthearing brief, the Re-
spondent elected to focus its argument entirely on its Wright
Line defense (i.e., that it would have terminated Gist even in
the absence of any union activity). (R. posthearing Br. at pp.
18, 22, and 24.)3
Based on the General Counsel’s evidence, I found that the
evidence showed, and the Respondent conceded, that the Gen-
eral Counsel had satisfied his evidentiary burden under Wright
Line. Specifically, I found that Gist was engaged in union ac-
tivity by (1) seeking to organize the Respondent’s employees
and (2) by encouraging Bautista to take a higher paying job
with a union company. I therefore found that Gist’s conduct
fell within the broad protective ambit of Section 7 of the Act.
At that point, the evidentiary burden shifted to the Respon-
dent. But because the Respondent’s defense related solely to
conduct that I had found (and that it had implicitly conceded)
was protected under the Act, and because the protected union
solicitation at least in part resulted in Gist’s discharge,4 I found
that the Respondent failed to demonstrate that it would have
discharged Gist absent his protected activity. See Timekeeping
Systems, Inc., 323 NLRB 244 (1997).
The Board disagreed. It found that Gist’s conduct in solicit-
ing Bautista to take a higher paying job with a union contractor
exceeded the protections of the Act. Specifically, it held that
the facts in the case below were most analogous to those in
Clinton Corn Processing, 194 NLRB 184 (1971). In that case,
a former employee, who was also a union official, attempted to
solicit employees of his former employer to quit and work for a
building trade, while he was working for a subcontractor on his
former employer’s premises. The Board found that the former
employee’s conduct was unprotected, and therefore, he was
lawfully barred from the former employer’s premises.5
The Respondent argues that in light of Clinton Corn Process-
ing, the General Counsel’s legal position was not substantially
justified. However, as noted above, the Respondent did not rely
on or cite Clinton Corn Processing in its posthearing brief or at
any time in this case. Nor did it ever argue that Gist’s conduct
was unprotected. The fact that the Board found Gist’s conduct
to be unprotected and dismissed the complaint on that basis does
not establish that the General Counsel’s reliance on a Wright
Line analysis was not substantially justified.
3 At no time did the Respondent argue that Gist was not engaged in
protected union activity or cite any case to support that position.
4 The other part was the union organizing activity.
5 In Clinton Corn Processing, there was no evidence of union hostil-
ity by the former employer toward the former employee while he was
an employee/union steward nor was there any evidence of discrimina-
tory action directed against him. The record there was free from any
evidence that the former employer’s action in barring him from the
premises was motivated by union activity while he was an em-
ployee/union steward. 194 NLRB 184, 189, and 190 fn 16.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136
Accordingly, I find that based on the evidence presented by
the General Counsel and the legal argument that he made, his
position was substantially justified.
CONCLUSION
Under all of these circumstances, I find that the position
taken by General Counsel with respect to a key Section 8(a)(3)
allegation was substantially justified and I recommend that the
Respondent’s application pursuant to EAJA be denied.6

6 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
ORDER
The Respondent’s application for an award of attorney’s fees
and expenses is denied.

Board and all objections to them shall be deemed waived for all pur-
poses.