Bouley

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 653 (N.L.R.B. 1992)

653
308 NLRB No. 89
BOULEY
1 The application was timely filed. Sec. 102.148 requires that an
application must be filed no later than 30 days after the entry of the
Board’s final order in the proceeding.
2 The Respondent, a corporation which operates a restaurant, has
fewer than 500 employees. It attached to its application, an account-
ant’s statement indicating that its net worth was far below the $7
million standard set forth in Sec. 102.143(c)(5) of the Board’s Rules
and Regulations.
3 In its application, the Respondent seeks attorney’s fees in the
amount of $29,058.95 which represents the amount of time spent
multiplied by a rate of $237.21. Sec. 102.145 of the Board’s Rules
and Regulations sets the allowable rate at no more than $75 per
hour.
Bouley, Inc., d/b/a Bouley and Hotel Employees and
Restaurant Union, Local 100, of New York,
New York and Vicinity, AFL–CIO. Case 2–
CA–23851(E)
August 31, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On June 4, 1992, Administrative Law Judge Ray-
mond P. Green issued his supplemental decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record and the supple-
mental decision in light of the exceptions and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the application is denied.
Margit Reiner, Esq., for the General Counsel.
Jerrold Goldberg, Esq. (Epstein, Becker & Green, P.C.), for
the Respondent.
Harold Ickes, Esq. (Meyer, Suozzi, English & Klein, P.C.),
for the Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. On Au-
gust 29, 1990, I issued my decision in this case and held:
1. That the Respondent did not, as alleged in the com-
plaint, violate Section 8(a)(3) of the Act by discharging or
issuing a warning to David McGrath because of his union ac-
tivities.
2. That the Respondent, nevertheless violated Section
8(a)(4) of the Act by discharging McGrath because it be-
lieved that he would file an unfair labor practice charge with
the National Labor Relations Board (Board).
3. That the Respondent, violated Section 8(a)(1) of the Act
by interrogating employees about their union activities and
by threatening to close the facility.
4. That the Respondent, did not solicit grievances and
impliedly promised to remedy them.
On February 26, 1992, the Board issued its Decision and
Order which, although sustaining the 8(a)(1) and (3) findings
described above, dismissed the 8(a)(4) finding. The Board’s
majority concluded that as the complaint did not allege an
8(a)(4) theory and as such a theory was not advanced at the
trial, the Respondent did not have notice of this allegation
and therefore had no opportunity to prepare and present a de-
fense to it. Chairman Stephens, however, would have re-
manded the case for further proceedings on the 8(a)(4) issue.
On March 25, 1992, the Respondent filed an application
for attorney’s fees pursuant to the Equal Access to Justice
Act and the Board’s Rules and Regulations, Section 102.143
et seq.1 The Respondent asserted that it was a qualifying pre-
vailing party in the unfair labor practice proceeding2 and
asked for attorney fees as to the allegations concerning the
warning and discharge of McGrath and the alleged solicita-
tion of grievances. It also asked for attorney fees concerning
the appeal of the 8(a)(4) allegation, asserting that the General
Counsel was not substantially justified in seeking affirmance
of the 8(a)(4) finding by the administrative law judge.3
The Equal Access to Justice Act (EAJA) at 5 U.S.C.
§ 504(a)(1), provides in pertinent part:
An agency that conducts an adversary adjudication shall
award, to a prevailing party other than the United
States, fees and other expenses incurred by that party
in connection with that proceeding, unless the adjudica-
tive . . . position of the agency as party to the proceed-
ing was substantially justified or that special cir-
cumstances make an award unjust.
In Carpenters Local 2848 (Dallas Corp.), 291 NLRB 787
fn. 2 (1988), the Board stated:
In finding that the General Counsel was substantially
justified, the judge cites the Board’s standard for sub-
stantial justification as ‘‘something more than mere rea-
sonableness as to both law and fact.’’ Under the Su-
preme Court’s elucidation of this standard in Pierce v.
Underwood, 108 S.Ct 2541 (1988), the Government is
substantially justified if its position was reasonable in
both law and fact.
In Pierce v. Underwood, 487 U.S. 552 (1988), the Su-
preme Court, in describing the appropriate standard for the
award of attorney fees, stated:
We are of the the view, therefore, that as between
the two commonly used connotations of the word ‘‘sub-
stantially,’’ the one most naturally conveyed by the
phrase before us here is not ‘‘justified to a high de-
gree,’’ but rather ‘‘justified in substance or in the
main’’—that is, justified to a degree that could satisfy
a reasonable person. . . . To be ‘‘substantially justi-
fied’’ means, of course, more than merely undeserving
of sanctions from frivolousness; that is assuredly not
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
the standard for Government litigation of which a rea-
sonable person would approve.
The Respondent contends that the General Counsel was
not substantially justified in issuing and pursing the allega-
tions regarding the warning to McGrath on September 12,
and his discharge on September 14, 1989. I do not agree.
As noted in my earlier decision, McGrath contacted the
Union in August 1989 and solicited union membership from
other employees in August and September of that year. The
evidence showed that the Respondent contemporaneously en-
gaged in illegal interrogation (on September 17, 1989) and
in October 1989, threatened to close the restaurant if the em-
ployees selected a union. This coupled with evidence that the
Respondent was aware of union activity prior to McGrath’s
discharge, establishes a reasonable basis for issuing a com-
plaint. Nor is that diminished by the fact that the Respondent
asserted, during the investigation, defenses for its actions.
The Respondent contended that the warning to McGrath
was justified based on his insubordination to management’s
criticism on September 11, 1989. While I concluded in the
underlying case that this warning was justified based on the
credited testimony of Daubresse, the fact is that McGrath de-
nied the assertion that he cursed at Daubresse and this pre-
sented to the General Counsel, prior to issuance of the com-
plaint, a credibility issue that was best resolved by a hearing.
As stated by the court in Temp Tech Industries v. NLRB, 756
F.2d 586, 590 (7th Cir. 1985):
Moreover, we cannot find that the General Counsel’s
decision to litigate an issue that turned on a credibility
assessment was itself unreasonable; the fact that an ALJ
might make an adverse finding on a credibility issue
dose [sic] not, in and of itself, deprive the General
Counsel’s position of a basis in fact. Thus, we find that
the Board did not abuse its discretion in finding the de-
cision to litigate substantially justified.
By the same token, it is my opinion that the General
Counsel had sufficient evidence to establish, prima facie, that
the discharge of McGrath on September 14, 1989, was moti-
vated by union considerations and therefore violative of Sec-
tion 8(a)(3) of the Act. In this instance, the Respondent as-
serts that the General Counsel was well aware, prior to the
issuance of the complaint, that the Respondent was asserting
that it discharged McGrath because he wrote and transmitted
the letter dated September 13, 1989. Although this is correct,
that does not mean that the General Counsel was required to
accept the Respondent’s assertion at face value. That is, al-
though the General Counsel was aware of McGrath’s Sep-
tember 13 letter and the Respondent’s assertion that this was
the only reason that it discharged McGrath, it was not unrea-
sonable for the General Counsel to contend, in light of the
other evidence of knowledge, timing, and antiunion animus,
that the Respondent’s defense was pretextual in nature.
While I concluded that McGrath’s letter was the only rea-
son motivating his discharge, this does not mean that another
judge hearing the same facts, might not have reached a dif-
ferent conclusion. These types of cases, requiring a deter-
mination of another person’s motivation, i.e., state of mind,
are not susceptible to a scientific and quantifiable evaluation.
The administrative law judge, like anyone else must use his
own experience, knowledge, and to some degree intuition, to
evaluate the record evidence in order to attempt to ascertain
someone else’s state of mind. It is my opinion that in this
case, the General Counsel had reasonable justification when
issuing the complaint to allege that the Respondent dis-
charged McGrath in violation of Section 8(a)(3) of the Act,
notwithstanding my conclusion, after the trial, that the Re-
spondent had shown that it was not motivated by union con-
siderations. Morris Mechanical Enterprises v. U.S., 728 F.2d
497 (1984).
The Respondent contends that the General Counsel was
not substantially justified in pursing affirmance of the 8(a)(4)
finding. In this regard, Chairman Stephens, although conclud-
ing that the hearing should have been reopened, also con-
cluded that absent any other relevant information that the Re-
spondent might have offered, the General Counsel had estab-
lished a violation of Section 8(a)(4). I concur, in hindsight,
that I should not have agreed with the General Counsel’s ar-
gument that the hearing should not have been reopened. But
that does not, in the circumstances of this case, translate into
a conclusion that the General Counsel had no substantial jus-
tification in arguing that a motivation of Respondent in dis-
charging McGrath, was its belief (whether correct or not),
that McGrath was threatening to file an unfair labor practice
charge.
The allegation that the Respondent solicited grievances
and impliedly promised benefits was, at most, a very minor
aspect of this proceeding. Again, notwithstanding my conclu-
sion that this allegation lacked merit, the test here is whether
the General Counsel had substantial justification in making
the allegation and attempting to prove it at the trial. In sup-
port of its position, with which I agree, the General Counsel
furnished an affidavit given by Jay Cohen during an inves-
tigation. In this affidavit, dated December 11, 1989, Cohen
averred that in late September or early October 1989, David
Bouley told employees that a union was not a panacea; that
he would work with the staff and iron out problems; that one
of the waiters said that maybe the kitchen staff, like the din-
ing room staff, could have a representative who should come
up with a list of grievances; and that Bouley said that ‘‘that
was fine if that’s what it took.’’
CONCLUSION OF LAW
The General Counsel’s position in litigating the underlying
proceeding was substantially justified.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The application is dismissed.