Unpublished Disposition, 899 F.2d 18 (9th Cir. 1990)

Local 270 argues that Incardona's affidavit, solicited by the General Counsel before filing against Local 270, established her supervisory status and exemption from National Labor Relations Act protection. See 29 U.S.C. § 152(11). Thus, because Incardona's statement fulfills the statutory requirement for a supervisor, Local 270 argues, the General Counsel had no reasonable basis in law or fact to proceed against Local 270. The NLRB concluded, however, that the General Counsel's investigation as a whole "established a factually close question concerning Incardona's supervisory status."

Under the Equal Access to Justice Act, we may "modify" the NLRB's "determination of fees and other expenses only" if we find "that the failure to make an award of fees or other expenses ... was unsupported by substantial evidence." 5 U.S.C. § 504(c) (2). See also Pierce v. Underwood, 487 U.S. 552, ----, 108 S. Ct. 2541, 2549-2550 (1988).

The NLRB cited four factors to support its conclusion. Only the first factor, Incardona's friendship with the business agent, is specifically relevant to whether Incardona held a supervisory position. Given the other factors, that Incardona earned less than others and had no authority to assign work to others, however, the General Counsel could reasonably have concluded that Incardona's effectiveness in making hiring and firing decisions stemmed from friendship alone. We therefore conclude that substantial, relevant evidence supported the NLRB's decision that the General Counsel reasonably concluded Incardona was not a supervisor.

Local 270 further argues that the NLRB is estopped from concluding that Incardona's affidavit statement was "essentially a legal conclusion" because General Counsel prevented the investigator who took Incardona's affidavit from testifying. The investigator's testimony has no relevance, however, to the NLRB's characterization of Incardona's affidavit statement as a legal conclusion. Even had the investigator verified the affidavit statement as Incardona's, whether Incardona could effectively recommend employees' hiring and firing remained a conclusory inference for Local 270 to prove at hearing through evidence of instances when Incardona had acted effectively. See, e.g., NLRB v. Island Film Processing Co., 784 F.2d 1446, 1451 (9th Cir. 1986) (analyzing factual indicia of supervisory status). We therefore conclude that the failure of the investigator to testify did not estop the NLRB from reasoning that Incardona's affidavit statement was not dispositive on the issue of her supervisory status.

Finally, Local 270 argues that even if the General Counsel was substantially justified in filing the complaint against Local 270, continuing to litigate was not justified once Incardona had testified. However, because the ALJ had a credibility issue to resolve upon the close of the hearing, the NLRB decided, the General Counsel was substantially justified in not withdrawing the complaint.

Indeed, the ALJ denied Local 270's motion to dismiss the complaint at the close of Incardona's testimony specifically because the record was then inadequate for him to determine that Incardona was a supervisor. In his decision, moreover, the ALJ felt compelled to weigh the evidence for General Counsel's argument that Incardona ineffectively complained about subsequently fired employees. The record thus includes substantial relevant evidence to support the NLRB's conclusion that the General Counsel was substantially justified in continuing to litigate the complaint at the close of Incardona's testimony. We therefore deny the petition for review.

2. Alleged Procedural Errors Do Not Compel Reversal

Local 270 argues that the General Counsel failed to comply with the NLRB's strict deadlines for requesting an extension for filing exceptions to an ALJ's decision, (29 C.F.R. 102.46(d) (3)), and that therefore the NLRB's grant of an extension was an abuse of discretion. The NLRB met Local 270's objection by interpreting its regulation so that "3 days prior to the due date" included the due date. The General Counsel's request, the NLRB decided, was thus timely. The NLRB's interpretation of its regulation is indeed tortured as Local 270 contends. Local 270 has not complained or shown, however, that the extension prejudiced its case. The NLRB's grant of the extension, then, whether timely requested or not, was not an abuse of discretion. See 5 U.S.C. § 706(2) (A) ("court shall ... set aside agency actions ... found to be arbitrary, capricious, [or] an abuse of discretion").

Local 270 points to the provision of the Equal Access to Justice Act which limits a reviewing court to "the factual record made before the agency," (5 U.S.C. § 504(c) (2)), to argue further that the NLRB abused its discretion in considering investigative memoranda the General Counsel produced only for the fees and costs application proceedings before the ALJ. The Act however, authorizes the NLRB to consider "the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought." 5 U.S.C. § 504(a) (1). The record in proceedings before the ALJ on Local 270's application for fees and costs included the investigative memoranda Local 270 now challenges. The memoranda were therefore properly included for the NLRB's consideration upon the General Counsel's appeal of the ALJ's award to Local 270. Local 270's argument on this issue is without merit. See Shrewsbury Motors, Inc., 281 NLRB 486, 489 (1989).

PETITION DENIED.