National Electrical Contractors Assn., Birmingham Chapter

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 770 (N.L.R.B. 1994)

770
313 NLRB No. 131
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Applicant responded to the initial information request by
stating that the Union itself possessed the information sought.
Birmingham Chapter, National Electrical Contrac-
tors Association and Local Union 136, Inter-
national Brotherhood of Electrical Workers.
Case 10–CA–19910(E)
February 28, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On February 1, 1990, Chief Administrative Law
Judge Melvin J. Welles issued a decision in the above-
entitled proceeding. On July 24, 1990, the National
Labor Relations Board remanded this proceeding for
further consideration. On October 27, 1993, Chief Ad-
ministrative Law Judge Melvin J. Welles issued the at-
tached supplemental decision. The Applicant filed ex-
ceptions and a supporting brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings, and
conclusions as clarified below and to adopt the rec-
ommended Order.
The Applicant, Birmingham Chapter, National Elec-
trical Contractors Association, has excepted to the
judge’s dismissal of its application for an award of at-
torney’s fees and expenses under the Equal Access to
Justice Act, 5 U.S.C. § 504 (EAJA). We agree with
the judge that the Applicant was not a prevailing party
within the meaning of EAJA, and that the position of
the General Counsel in the underlying unfair labor
practice proceeding was substantially justified. We ac-
cordingly agree with the judge that the Applicant does
not qualify for an award under EAJA.
The complaint in the underlying unfair labor prac-
tice proceeding alleged that the Applicant violated Sec-
tion 8(a)(5) and (1) of the Act by failing to provide
the Union, upon request, with ‘‘a list of the contractors
on whose behalf Respondent held authority to be their
bargaining representative.’’ The Applicant had not
complied with the Union’s prior request to provide
such a list. The Applicant did comply, however, with
the Union’s postcomplaint, somewhat differently word-
ed request which stated: ‘‘In order that there is no mis-
understanding, this letter is a formal request for you to
submit to Local Union 136 a roster showing the names
and addresses of all the members of the [Applicant] in-
cluding those whom you contend are not bound by the
. . . negotiations.’’ After the Applicant complied with
the latter request for information, the Board’s Regional
Office approved the Union’s request to withdraw its
unfair labor practice charge and dismissed the com-
plaint.
We have carefully reviewed the Applicant’s conten-
tion that it was the prevailing party in the underlying
proceeding because the unfair labor practice charge
was withdrawn and the complaint dismissed. The Ap-
plicant contends that the Union’s requests for informa-
tion were fundamentally different, and that therefore its
compliance with the second request was not a settle-
ment of the complaint allegations concerning the initial
request. Thus, the Applicant contends that it did not
comply with the initial information request because it
did not in fact know all the employers who had exe-
cuted letters of assent to permit the Applicant to bar-
gain on their behalf, since such letters were frequently
forwarded only to the Union.1 The Applicant asserts
that it was, by contrast, able to comply with the
Union’s postcomplaint request for a list of the Appli-
cant’s membership, including a list of names of those
who had revoked bargaining authority, because it pos-
sessed that information.
We agree with the judge’s rejection of the Appli-
cant’s contention that the requests for information were
fundamentally different. Although the two requests are
not identical, they overlap in their attempt to secure
from the Applicant a list of employers the Applicant
considered to be bound by any negotiations conducted
by the Association. The Union’s initial request may
have been inartfully drawn in requesting a list of em-
ployers that the Applicant did not possess in full. The
Union clarified its request, however, to avoid any
‘‘misunderstanding’’ and the Applicant thereafter com-
plied with the Union’s information request. Thus, al-
though the parties did not enter into a formal settle-
ment of the complaint allegations, the Applicant’s
compliance with the Union’s postcomplaint clarifica-
tion of its information request rendered moot the sub-
ject of the complaint and constituted a de facto settle-
ment of the complaint allegations. This sequence of
events, in which the complaint was dismissed after the
Applicant’s compliance with the clarified information
request, cannot support a finding that the Applicant
was the prevailing party in the underlying unfair labor
practice proceeding.
We further agree with the judge’s alternative finding
that the position of the General Counsel in the underly-
ing proceeding was substantially justified. In this con-
nection, we note that it is well established that Section
8(a)(5) of the Act obligates an employer to provide a
union information that is relevant and necessary to its
role as the exclusive bargaining representative of the
unit employees. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967).
The General Counsel here issued a complaint based
on the Applicant’s undisputed failure to provide infor-
mation to the Union upon request. The Applicant does
not contest the relevance of the information sought. In
addition, we find that the Union had a legitimate need
to know in essence whether the Applicant’s records
771NATIONAL ELECTRICAL CONTRACTORS ASSN., BIRMINGHAM CHAPTER
2 The Applicant has excepted to the judge’s failure to conduct a
hearing in this case. We have reviewed the evidence which the Ap-
plicant sought to adduce at a hearing, set forth in the Applicant’s
reply with supporting affidavit to the General Counsel’s answer to
the EAJA application. The Applicant asserts, inter alia, that the
Board’s Resident Officer, after being apprised of the Applicant’s
contention regarding the insufficiency of the Union’s initial request
for information, informed the Applicant that the complaint would be
dismissed. We find that even assuming the truth of the Applicant’s
averments, the documentary record supports the judge’s findings that
the Applicant was not the prevailing party in the underlying proceed-
ing and that the General Counsel’s position was substantially justi-
fied. We accordingly find that the judge’s failure to conduct a hear-
ing, and his unfortunate delay in processing this case, did not preju-
dice the Applicant’s claim for an EAJA award.
1 The Board’s remand order directed me to consider, if necessary,
the General Counsel’s additional arguments why the Applicant
should not receive an award under the Equal Access to Justice Act
‘‘[and to] order any further proceedings necessary to resolve these
issues.’’
2 Counsel for the General Counsel attached copies of a statement
in support of the charge and correspondence between the parties to
the answer to the Application. Any ‘‘findings’’ here are based on
all the various papers filed by the parties in this case, distilling from
them what are clearly uncontested facts. Some conclusions and infer-
ences drawn from these facts are, of course, my own.
showed any revocations of bargaining authority of
which the Union was unaware. Information of this
kind must be shared by both parties to the relationship
if the process of collective bargaining is to be ad-
vanced. Although the Applicant asserts that the initial
information request was insufficiently specific to im-
pose a legal duty on the Applicant to provide informa-
tion, ‘‘[i]t is well established that an employer may not
simply refuse to comply with an ambiguous and/or
overbroad information request, but must request clari-
fication and/or comply with the request to the extent
it encompasses necessary and relevant information.’’
Keauhou Beach Hotel, 298 NLRB 702 (1990). While
the Applicant’s defense to the complaint allegations
may or may not have proven successful had the under-
lying proceeding been fully litigated, we cannot con-
clude that the Union’s initial information request was
so deficient as to establish that the position of the Gen-
eral Counsel was without substantial justification.
Rather, the issuance of complaint in this case was rea-
sonable both in fact and law based on the Applicant’s
undisputed failure to comply with the Union’s request
for relevant and necessary information.2
ORDER
The application of the Applicant, Birmingham Chap-
ter, National Electrical Contractors Association, Bir-
mingham, Alabama, for attorney’s fees and expenses
under the EAJA is dismissed.
SUPPLEMENTAL DECISION AND ORDER
Equal Access to Justice Act
MELVIN J. WELLES, Chief Administrative Law Judge. On
February 1, 1990, I issued a Decision and Order in the
above-entitled proceeding, denying Respondent’s Application
for Award of Fees and Other Expenses. Thereafter, pursuant
to exceptions filed with the Board, the Board remanded the
case to me for further consideration.1 In my decision, I based
certain findings on what I thought at that time was Respond-
ent’s failure to reply to the General Counsel’s answer to Re-
spondent’s application. It is now established that such a reply
was in fact sent, and therefore a predicate for my initial
holding no longer exists. That is the basis for the remand.
I now address the case in the light of all the documents and
papers that are presently before me.
I. THE UNDERLYING UNFAIR LABOR PRACTICE
PROCEEDING
As set forth in my earlier decision, the charge in this case
was filed on January 12, 1984, and on February 29, 1984,
the Regional Director issued a complaint alleging that Re-
spondent violated Section 8(a)(5) and (1) of the Act by not
furnishing the Union a list of contractors on whose behalf
Respondent was authorized to bargain. Thereafter Respond-
ent filed an answer denying the allegations of the complaint.
Correspondence exchanged between the Union and Re-
spondent shows that on at least two occasions before the
charge was filed the Union asked Respondent to furnish it
with a list of contractors on whose behalf the Association
held authority.2 The Union’s first request, on November 30,
1983, said, ‘‘In for the Local Union to know who this letter
applies to, please furnish me with a list of the contractors
[employers] on whose behalf your Association holds author-
ity.’’
Respondent replied, on December 1, that the information
as to the employers who were signatory to letters of assent
with the Union could be obtained from the union representa-
tive, Jimmy Russ. On December 9, the Union wrote again,
saying, ‘‘I am also in receipt of your letter dated December
1, 1983, and again I ask that the information previously re-
quested from the Chapter be submitted promptly.’’ Applicant
responded by saying, ‘‘The answer is every contractor who
has signed a Letter of Assent that has not given notice of
a revocation of that authority to be their bargaining rep-
resentative.’’ There is no dispute as to the contents of these
exchanges.
On March 18, 1984, after the complaint issued, the Union
by letter again requested information as follows:
In order that there is no misunderstanding, this letter
is a formal request for you to submit to Local Union
136 a roster showing the names and addresses of all the
members of the Birmingham Chapter, NECA, including
those whom you contend are not bound by the Inside
Agreement negotiations. Please indicate on the roster
those wham you contend are not bound by the Inside
Agreement negotiations.
All we are seeking is a roster of contractor members.
It is very important with respect to our contractual posi-
tion with the Association. We believe that there may be
a violation of our bargaining Agreement and the com-
plete list will assist us in administration of the contract.
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 22 Respondent replied enclosing ‘‘a list of the
names and addresses of the members of the Birmingham
Chapter NECA,’’ and setting forth the names of those mem-
bers who had given notice of termination of their authoriza-
tion to the Chapter to bargain on their behalf. This was the
first time that Respondent purported to comply with the
Union’s request by furnishing a list of names of any kind.
On June 20 the Union requested withdrawal of its charge,
and on June 27 the Acting Regional Director approved the
request and dismissed the complaint.
II. THE APPLICATION AND ANSWER
Applicant asserts, among other things, that it prevailed in
the unfair labor practice proceeding ‘‘totally, and more par-
ticularly in that said complaint was dismissed, the notice of
hiring withdrawn, and the case closed by order of the Acting
Regional Director.’’ The General Counsel, in the answer,
claims that Applicant did not prevail. The General Counsel
also contends that no award shall issue because it was ‘‘sub-
stantially justified’’ in issuing the complaint.
The General Counsel, in support of its claim that Appli-
cant did not prevail, contends that the unfair labor practice
case was resolved by a non-Board adjustment prior to litiga-
tion, that if Respondent had prevailed it would not have been
required to furnish the Union any of the requested informa-
tion and that the settlement reflects the typical settlement
compromise in which neither side wins or loses, citing
Carthage Heating Co., 273 NLRB 120 (1984).
Applicant counters this contention by arguing that there
was no ‘‘settlement’’ at all. It claims that it furnished infor-
mation to the Union only after the Union’s March 18 letter
and in response to that, not the earlier requests, and not in
settlement of the complaint’s allegations. And Applicant as-
serts that the March 18 request was not the same as the one
on which the complaint was based.
The General Counsel first made this argument in the ear-
lier motion to dismiss. I rejected that argument there because
at that time it appeared to raise factual issues which could
not be resolved on the motion to dismiss and its merits were
not reached. In the answer counsel for the General Counsel
has attached a statement and documents supplying a factual
basis for the argument.
I am now of the opinion that this matter can be decided
without any further hearing. Although most of the delay in
the handling of this case is fairly attributed to me, the fact
remains that at this late date, determination of the principal
issues in this EAJA case—whether Applicant is a prevailing
party and whether the General Counsel had reasonable
grounds for proceeding—have been rendered increasingly
difficult by the passage of time itself as Applicant points out
in its response to the answer.
EAJA cases generally support the proposition that their
resolution without a hearing is preferable. Indeed, Section
201.152 of the Board’s Rules and Regulations states, with re-
spect to awards under EAJA: ‘‘Further proceedings—Ordi-
narily, the determination of an award will be made on the
basis of the documents in the record. An evidentiary hearing
shall be held only when necessary for resolution of material
issues of fact.’’
The exchanges of correspondence between Applicant and
the Union that took place both before and after issuance of
the complaint are not in dispute. For reasons I am about to
discuss, I am satisfied that these uncontested facts suffice to
resolve this EAJA proceeding.
III. DISCUSSION
‘‘Settle’’ is defined as ‘‘To decide [a lawsuit] by mutual
agreement of the involved parties without court action.’’ And
a ‘‘settlement’’ as ‘‘An adjustment or other understanding
reached in financial matters, business proceedings, or the
like.’’ American Heritage Dictionary, 1976 Ed., p. 1186.
Most settlements, by whatever term they happen to be called,
involve each side to a controversy giving up a little bit, per-
haps one side more than another, so as to avoid further fuss
and bother, expense, or litigation. Indeed, the expense of liti-
gation itself is often a compelling factor in inducing a party
to settle, however strong parties’ belief in the righteousness
of their causes may be.
A careful reading of all the documents filed in this case
persuades me that what occurred here was just that—a settle-
ment in every sense of the word. The Union sought certain
information, and when it was eventually satisfied that it had
what it sought, there was no point in its continuing to litigate
so, at its own prompting, it withdrew its charges, and the Re-
gional Director withdrew the complaint. In a typical settle-
ment, there is no admission of guilt, and, except perhaps in
a settlement in which the General Counsel participates, no
winner or loser. In other words, there is no prevailing party.
It would be just as logical, with respect to an out-of-Board
settlement for either side to claim that it prevailed. The fact
that the complaint was withdrawn obviously cannot by itself
establish a respondent as a prevailing party. The cir-
cumstances of the withdrawal must be considered. For exam-
ple, if the General Counsel decided at the trial to capitulate;
i.e., that he had no case, then of course, the respondent
would be a prevailing party.
Despite the fact that all the outward trappings of an out-
of-Board settlement are present here, Applicant, as noted
above, claims that it was responding to a brand new and fun-
damentally different request by the Union. My reading of the
precomplaint and postcomplaint requests does not even come
close to a conclusion that the two are different at all; rather,
they are substantially the same. Obviously, the Union felt so,
for it withdrew the charges following the receipt of the infor-
mation.
Assuming that Applicant was in good faith in its initial re-
sponse to the Union’s request, rather than, as might appear,
playing games with the Union, that would not militate
against the conclusion that it did not ‘‘prevail.’’ Even a for-
mal settlement, with a nonadmission clause, does not require
a respondent to abandon its conviction that it never commit-
ted an unfair labor practice.
A case very much in point is Dame & Sons Construction
Co., 292 NLRB 1044 (1989). There a complaint had issued
alleging a host of unfair labor practices, including an unlaw-
ful layoff of employee Andrews. The Regional Director sub-
sequently withdrew the complaint based on the parties’
agreement to submit the dispute to the grievance-arbitration
procedure. Thereafter, the respondent and the union involved
entered into a ‘‘non-Board agreement.’’ Pursuant to that
agreement, the respondent paid Andrews $800, and the union
withdrew all unfair labor practice charges, and abrogated re-
instatement claims as well as claims to a collective-bargain-
773NATIONAL ELECTRICAL CONTRACTORS ASSN., BIRMINGHAM CHAPTER
3 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.
ing relationship with the Applicant and any claims concern-
ing the preceding events.
In the above circumstances, the Board dismissed Appli-
cant’s claim for an EAJA award. The Board stated at 1045:
We cannot find that the May 24 non-Board settle-
ment agreement was favorable to the Applicant. We
cannot know what the parties sought and their relative
strengths and weaknesses when they finally sat down to
negotiate and resolve this dispute. The agreement rep-
resents a compromise in which there is something for
everyone. The charges were withdrawn as an element
of a compromise, not as a unilateral release of the Ap-
plicant from all obligations claimed in the complaint.
The Applicant incurred financial responsibilities that it
would not have had if the complaint had been dis-
missed. Furthermore the settlement precludes finding
that either the Government or the Applicant won or
lost. Rather, ‘‘neither won nor lost, but clearly a prime
purpose of the Act, the promotion of collective bargain-
ing, was well served.’’ [Citing Carthage Heating,
supra]. Accordingly the Applicant is not a prevailing
party within the meaning of the EAJA.
The discussion of prevailing party, and conclusion that re-
spondent is not one, even if erroneous, would not establish
applicants’ right to an EAJA award. If, for example, the
General Counsel was substantially justified in issuing the
complaint and continuing to prosecute the case up to the time
of the withdrawal, Applicant would not be entitled to any
award.
It might well be that had the underlying unfair labor prac-
tice proceeding been fully litigated and decided, Applicant
would have prevailed, perhaps on the very ground urged
here—that the Union’s precomplaint request for information
was ambiguous, or sufficiently so as to absolve Applicant of
any unfair labor practice liability for not providing the Union
with any information. The converse could also be true—that
an 8(a)(5) violation would have been found.
On its face, the initial request (for ‘‘a list of the contrac-
tors on whose behalf your association holds authority’’)
sought information plainly relevant to the collective-bargain-
ing process. Applicant does not contend otherwise. Nor did
its response to the first request (‘‘get it from the Union rep-
resentative’’) or to the second request (‘‘the answer is every
contractor who has signed a Letter of Assent that has not
given notice of a revocation of that authority . . .’’). The
second response does not even suggest that Applicant did not
possess the information.
It would have been very easy for the Association to pro-
vide the names of ‘‘every contractor,’’ as it eventually did
after the postcomplaint ‘‘clarification’’ by the Union, when
it furnished ‘‘a list of the names and addresses of the mem-
bers of the Birmingham Chapter NECA,’’ and set forth the
names of those members who had notified the Association of
termination of their authorization. As noted above, Applicant
does not assert that the various exchanges of correspondence
between Respondent and the Union that are attached to the
moving papers and responses are in any way not genuine.
Holding a hearing for the purpose of ascertaining whether the
General Counsel did have a reasonable basis for continuing
to prosecute the case up to the time of the withdrawal would
be highly unlikely to reveal any more than can now be
gleaned from the plenitude of papers filed herein.
Based on the record before me, I am satisfied that the
General Counsel did have a substantial basis for issuing the
complaint. That being so, there was, of course, no reason for
the General Counsel to dismiss the complaint until the Union
withdrew the charge.
For all the foregoing reasons, I am satisfied that the instant
claim for attorney’s fees under EAJA should be denied, and
that no hearing is required herein. My primary ground for so
concluding is my finding that Applicant is not a prevailing
party. The finding that the General Counsel had a substantial
basis for issuing the complaint is an alternative ground for
denying the application.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The application of Birmingham Chapter, National Elec-
trical Contractors Association for attorneys’ fees and ex-
penses under the Equal Access to Justice Act is dismissed.