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Hess Mechanical Corp. v. National Labor Relations Board

April 21, 1997






On Petition for Review of an Order of the National Labor Relations Board.

(5-CA-24162) Argued: March 7, 1997

Before WILKINSON, Chief Judge, and RUSSELL and HALL, Circuit Judges.

WILKINSON, Chief Judge

Reversed and remanded by published opinion.

Chief Judge Wilkinson wrote the opinion, in which Judge Russell and Judge Hall joined.


On March 8, 1994, the Region 5 Director of the National Labor Relations Board issued a complaint on behalf of the Board's General Counsel against Hess Mechanical Corporation. The complaint alleged that Hess had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Section(s) 158(a)(1) & (3), by telling employee Richard Darr not to talk about the union to which he belonged and by terminating him for engaging in union activities.

Hess prevailed on the merits of the case, but its request for attorney's fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. Section(s) 504, was denied by the Board. Hess appeals the denial, contending that the General Counsel's legal position was not "substantially justified." We agree. The General Counsel's case is notable for its flimsiness. The evidence at the time the complaint was filed indicated that Hess fired Darr for one reason only -- poor performance. Accordingly, we set aside the Board's denial of fees and remand to the Board for the determination of an appropriate fee award to Hess.


Richard Darr is a member of the Sheet Metal Workers' International Association (the union). Hess Mechanical Corporation is a non-union construction contractor. In November 1993, Hess hired Darr and Ken Burk, another union member, to work on a project at the National Institutes of Health. The company hired both men with full knowledge of their long-term union membership. When Darr began work, he received a copy of Hess' employment policy, which states that new hires are subject to a 90-day probation period during which they will be fired if they "do not have the ability to perform the work or show a lack of interest or motivation."

Only two days after Darr began work, John Blotner, Darr's foreman, began receiving complaints that Darr was not properly performing his duties and was not getting along with co-workers. In response to these complaints, Blotner reassigned Darr several times to different tasks. Each reassignment was followed by further complaints about Darr's bad attitude, his poor productivity, and his adverse impact on the productivity of other employees. Both Blotner and Russell Long, the project superintendent, personally observed Darr's failure to produce. Blotner noted that Darr was installing approximately half the amount of air duct that other workers were hanging under the same working conditions.

On December 3, 1993, Blotner and Long gave Darr a verbal warning about his unacceptable performance. Even after a second verbal warning, co-workers continued to complain about Darr's work. Consequently, on December 17, 1993 Long provided Darr with a written warning which stated, "John Blotner and myself have spoke[n] to Richard on more than one occasion about his productivity. I have also received complaints from other lead mechanics about the same problem. This kind of substandard work will not be tolerated." Although advised that he was free to disagree with the warning statement, Darr checked and signed the box on the warning indicating that he agreed with it. Darr's performance failed to improve, and on January 5, 1994, he was fired. The written termination notice indicates that he was fired for poor performance after previous warnings.

On January 18, 1994, the union filed an unfair labor practice charge with the NLRB, claiming that Hess had fired Darr for engaging in union activities. Darr supplied the Board with an affidavit in which he claimed that he had talked to co-workers about the union and had given several employees union cards to sign. Darr further alleged that Blotner twice told him not to talk about the union and that Long informed him that he was being fired for discussing the union with other employees.

Hess submitted a statement denying any knowledge of Darr's alleged union activities and stating that Darr was terminated solely for substandard performance. Hess attached to the statement a copy of the written warning Darr had signed. At the Board's request, the company also provided a list of thirty-five employees discharged in 1993 for performance-related reasons. In addition, the Board and Hess each took affidavits from six employees which corroborated Darr's poor job performance. The employees generally ...

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