K And I Transfer & Storage Inc. And City Cartage And Moving, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1985

277 N.L.R.B. 1063 (N.L.R.B. 1985)

K & I TRANSFER & STORAGE 1063
K and I Transfer & Storage Inc. and City Cartage
and Moving, Inc. and Chauffeurs, Teamsters
and Helpers, Local Union No . 215, a/w Inter-
national Brother1ood of Teamsters , Chauffeurs,
Warehousemen a Pd Helpers of America. Cases
25-CA-14937(E), 25-RC-7844, 25-RC-7845
11 December 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 28 March 1985 Administrative Law Judge
Irwin H. Socoloff issued the attached supplemental
decision. The Applicant filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
brief and has decided to affirm the judge's rulings,
findings, and conclusions' and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the application of the Appli-
cant, K and I Transfer & Storage, Inc., and City
Cartage and Moving, Inc., Evansville, Indiana, for
an award under the Equal Access to Justice Act is
dismissed.
I We believe that Congress, in revising the Equal Access to Justice
Act, 5 U S C. § 504 (1982, as amended by Pub L. 99-80, 99 Stat. 183
(1985)), did not alter but merely clarified, the definition of "substantially
justified " "Substantially justified" means more than "mere reasonable-
ness." H R. Conf Rep. No 99-120 at 9 (1985).
Albert G. Fisher, Esq., for the General Counsel.
Thomas 0. Magan, Esq., and William M. Schiff Esq., of
Evansville, Indiana, for the Respondent.
Samuel Morris, Esq., of Evansville, Indiana, for the
Charging Party.
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
IRWIN H. SOCOLOFF , Administrative Law Judge. On
September 19, 1984 , I issued my decision in this proceed-
ing recommending dismissal of the complaint in its en-
tirety. No exceptions were filed and , on October 17,
1984, the Board entered its Order dismissing the com-
plaint. On November 14, 1984 , Respondents filed an ap-
plication for award of fees and expenses under the Equal
Access to Justice Act (EAJA). Thereafter, the General
Counsel submitted an answer to the application and a
memorandum in support thereof.' The Application and
Answer raise the following issue: Whether the General
Counsel was substantially justified in issuing the com-
plaint and proceeding to trial.
Findings and Conclusions
As my findings and conclusions in this case rested, pri-
marily, on credibility determinations and, had contrary
credibility resolutions been made, a different result
would have obtained, I find and conclude herein that the
General Counsel was substantially justified in prosecut-
ing this case. Thus, my finding that Respondents did not
threaten plant closure rested on a refusal to credit the
testimony of employees DeLong and Cundiff and a reli-
ance on the testimony of the terminal manager, Robert
McKay. My conclusions, that the institution of an incen-
tive bonus plan was not an unlawful wage increase, and
that Healy's discharge was not for unlawful reasons,
rested on findings that Respondents, at the time they
took those actions, did not have knowledge of their em-
ployees' union activities and had not displayed antiunion
animus. Those findings, in turn, were premised on my
decision to credit the testimony of McKay over that of
Healy. In further finding that Healy was a statutory su-
pervisor at the time of his discharge, I rejected Healy's
testimony and relied, instead, on the testimony of Re-
spondents' witnesses . Similarly, conclusions pertaining to
the less serious allegations of violations of Section 8(a)(1)
of the Act were reached in reliance on the testimony of
McKay. With respect to the refusal-to-bargain allegation,
I found that, at the time of the Union's demand, it en-
joyed a card majority. My conclusion that a bargaining
order should not issue was based on the General Coun-
sel's failure to show that Respondents had engaged in
conduct tending to preclude the holding of a fair elec-
tion. That determination was based on my findings that
the 8(a)(1) and (3) allegations had not been sustained,
findings which, as noted, rested on credibility resolu-
tions.2
CONCLUSIONS OF LAW
1. Respondents are prevailing parties meeting the eligi-
bility standards of the Equal Access to Justice Act.
2. The General Counsel of the National Labor Rela-
tions Board was substantially justified in prosecuting the
instant case.
3. Respondents are not entitled to an award of fees and
expenses.
Based on the foregoing, I issue the following recom-
mended3
I On January 2, 1985, Respondents, Applicants herein, filed a request
for further proceedings. That request is denied
2 Respondents' application for fees and expenses incurred in connection
with the representation cases is rejected, as such are not covered by
EAJA. See Sec. 102.143 of the Board's Rules and Regulations
3 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 pur-
poses.
277 NLRB No. 113
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER K and I Transfer & Storage, Inc. and City Cartage and
The Application for Award of Fees and Expenses Moving, Inc., is denied.
under the Equal Access to Justice Act of Respondents,