All Shores Radio Co.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 394 (N.L.R.B. 1987)

394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Long Island Radio Company d/b/a All Shores
Radio Company and New York Local , Ameri-
can Federation of Television and Radio Artists,
AFL-CIO. Cases 29-CA-7753(E)
30 September 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 27 June 1985 Administrative Law Judge
Robert T. Snyder issued the attached supplemental
decision. The General Counsel filed exceptions and
a supporting brief. The Applicant filed cross-excep-
tions and a brief in support of its cross-exceptions
and in response to the General Counsel's excep-
tions. i
The National Labor Relations Board has consid-
ered the supplemental decision and the record in
light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge's rulings, find-
ings , and conclusions only to the extent consistent
with this Supplemental Decision and Order.
On 16 October 1981 the Board, in the absence of
exceptions, adopted the judge's initial decision
dated 27 August 1981. In his decision, the judge
had determined that the 8(a)(3) and (5) allegations
of the consolidated complaint did not have merit
and recommended dismissal of the complaint in its
entirety. The Board's unpublished Order adopting
the judge's decision resulted in the dismissal of the
entire unfair labor practice case against the Appli-
cant.
On 13 November 1981, on the Applicant's re-
quest, the Executive Secretary of the Board ex-
tended the time for the Applicant's filing of an ap-
plication for an award of attorney's fees and ex-
penses in this case pursuant to the Equal Access to
Justice Act (EAJA).2 By a telegram dated 17 No-
vember 1981, the Executive Secretary confirmed
that the Board had extended the time for filing the
Applicant's EAJA application until 23 November
1981.
On 23 November 1981 the Applicant filed its ini-
tial EAJA application. This application was one of
the first to be filed with the Board after EAJA
became effective 1 October 1981. On several subse-
quent occasions, as more fully revealed in the
judge's supplemental decision, the Applicant has
amended its application, inter alia, to update the
' The Applicant also requested oral argument in this case , which re-
quest the General Counsel has opposed This request is denied as the
record, the exceptions, the cross-exceptions, and the briefs adequately
present the issues and the positions of the parties
2 5 U S C § 504 (1982) Subsequently, EAJA was amended See Pub
L 99-80, 99 Stat 183-187 (1985)
amount of fees and expenses sought and to more
fully conform with the requirements of EAJA and
the corresponding Board Rules and Regulations,
Section 102.143 et seq.3 In turn, the General Coun-
sel has filed responses to the application and its
amendments and has disputed the timeliness, suffi-
ciency, and merit of the Applicant's claim for an
EAJA award.
The judge, in various rulings and in his supple-
mental decision, addressed the matters raised by
the parties' pleadings and awarded some of the fees
and expenses requested by the Applicant. In doing
so, the judge ruled in the Applicant's favor on two
critical motions. Thus, the judge denied the Gener-
al Counsel's motion to dismiss and found that the
Applicant's application was timely filed. Further,
the judge granted the Applicant's Motion for Par-
tial Summary Judgment on the issue of substantial
justification and recommended that the Applicant
be awarded $149,039.30. The General Counsel
timely excepted to both adverse rulings.
For the reasons detailed below, we reverse the
judge and grant the General Counsel's motion to
dismiss. We find that the Board is without jurisdic-
tion to consider the Applicant's application and,
consequently, we deny the Applicant's EAJA
claim on that basis.4
The General Counsel has opposed the Appli-
cant's application on several procedural and sub-
stantive grounds, as fully detailed by the judge in
his supplemental decision. One significant ground
asserted for dismissal of the application involves
the Board's jurisdiction under EAJA. Manifestly,
whether attorney fees should be awarded to the
Applicant turns on whether the Board has jurisdic-
tion to consider this EAJA claim. The resolution
of this threshold issue is, in view of the peculiar
factual circumstances involved, a case of first im-
pression and, in all likelihood, sui generis.
By motion dated 5 July 1983, the General Coun-
sel raised the question of whether the Board lacks
jurisdiction to consider this EAJA application be-
9 On 12 May 1986 the Applicant submitted directly to the Board a
fourth amended application for attorney fees pursuant to the Equal
Access to Justice Act This fourth amendment purports to update the
amount of recoverable attorney fees which have been incurred by the
Applicant since the judge 's supplemental decision issued In conjunction
with its fourth amended application, the Applicant also filed a petition
for rulemaking to increase the maximum rate for attorney fees By letter
dated 12 May 1986, the Board notified the parties in the case that the
fourth amended application was being held in abeyance pending the dis-
position of the case In view of our disposition of the case discussed
herein, the Applicant 's petition for rulemaking is denied
4 We find it unnecessary to reach the merits of the Applicant's EAJA
claim in view of the Board 's lack of jurisdiction to consider it We, there-
fore, do not pass on the substantial justification issue We also find it un-
necessary to pass on any of the judge's findings and conclusions regard-
ing the fees and expenses allegedly incurred by the Applicant during the
unfair labor practice or EAJA proceedings
286 NLRB No. 34
ALL SHORES RADIO CO 395
cause the Applicant failed to strictly comply with
the specified 30-day filing period of EAJA5 not-
withstanding the fact that it had been filed within
the 1-week extension to the filing period granted
by the Executive Secretary on behalf of the Board.
The General Counsel noted that several Board de-
cisions which have been enforced by various cir-
cuit courts of appeals6 held the 30-day statutory
filing requirement to be a jurisdictional prerequisite
that cannot, for any reason, be legally extended by
the Board.
In his ruling dated 28 November 1983, the judge
denied the General Counsel's motion to dismiss the
application for lack of Board jurisdiction.? The
judge based his denial of the motion on two differ-
ent grounds. As an initial matter, the judge deter-
mined that the Executive Secretary's grant of the
1-week extension to the EAJA filing period consti-
tuted an "interpretation" by the Board that the 30-
day limitation imposed by EAJA was subject to
modification for good cause within the discretion
of the Board. The judge considered that this "inter-
pretation" by the Board was binding on him and
the parties as the "law of the case." The second
ground relied on by the judge to deny the General
Counsel's motion is equitable estoppel, which the
judge, however, mistakenly mislabeled as "the eq-
uitable principle of collateral estoppel." Applying
recognized equitable estoppel principles, the judge
found that the factual circumstances of this case
warranted a finding that the Board is estopped
from refusing jurisdiction over the Applicant's ap-
plication. In the judge's view, it would be unjust to
permit what he considered a retroactive application
of a more rigid interpretation of EAJA enunciated
in Monark Boat Co., supra, to the present situation
which arose 8 months before the new interpreta-
tion came into existence.
The General Counsel excepts to the judge's
ruling of 28 November 1983 and renews her prior
arguments for dismissal of the Applicant's applica-
tion on jurisdictional grounds." The General Coun-
5 5 U S C § 504(a)(2) See also Board's Rules and Regulations, Sec
102 148(a)
6 See, e g, Monark Boat Co, 262 NLRB 994 (1982), enfd 708 F 2d
1322 (8th Cir 1983), Columbia Mfg Corp, 265 NLRB 109 (1982), enfd
715 F 2d 1409 (9th Cir 1983)
7 The judge nevertheless found that the General Counsel's motion,
which had been submitted approximately 18 months after the Applicant's
initial filing of its application, was timely We agree See Haynes-Trane
Service Agency, 265 NLRB 958 (1982)
8 In considering her exceptions to the judge's supplemental decision,
the General Counsel asks the Board to take administrative notice of Son,-
craft, Inc v NLRB, 814 F 2d 385 (7th Cir 1987), dismissing an appeal of
281 NLRB 569 (1986), and Lord Jim's Y NLRB, 772 F 2d 1446 (9th Cir
1985), enfgi 264 NLRB 1098 (1982) The Applicant does not oppose the
General Counsel's request
sel's primary contention is that the 30-day filing re-
quirement is jurisdictional and cannot be extended
or waived and equitable estoppel cannot he against
the Board because an EAJA proceeding compre-
hends a waiver of sovereign immunity. A second-
ary argument urged by the General Counsel is that,
even assuming arguendo estoppel against the Board
is available in EAJA proceedings under appropri-
ate factual circumstances, the facts of this case do
not warrant invoking the estoppel doctrine.
In response, the Applicant defends the soundness
of the judge's analysis of estoppel and, alternative-
ly, renews its earlier position, which was rejected
by the judge, that the 30-day filing requirement of
EAJA is a statute of limitations and, as such, can
be waived by the Board. The Applicant strongly
urges that jurisdiction lies with the Board, stating
at one point that to hold otherwise would not only
hamper the exercise of authority by the Board's
Executive Secretary but also would permit the
Board, after years of costly litigation, "to renege
on its word" to the Applicant which relied in good
faith on the filing extension.
To place the parties' arguments and the judge's
reasons noted above in better perspective , we ini-
tially set forth the following stipulated facts which
are relevant to the jurisdictional issue.9
On 13 November 1981 Andrew A. Peterson of
the law firm of Jackson, Lewis, Schnitzler & Krup-
man, counsel for the Applicant, made a written re-
quest of Associate Chief Administrative Law Judge
Edwin H. Bennett that the 30-day period for filing
an EAJA application be extended for the Appli-
cant.1 ° Although the General Counsel was served
with a copy of this request, there is no indication
whether the Applicant solicited the General Coun-
sel's view. The General Counsel did not respond to
the Applicant's telegram.
On the same day, Peterson telephoned Judge
Bennett to orally request the month extension and
to advise him that the written request was being
delivered contemporaneously. Judge Bennett ad-
vised Peterson that this was the judge's first deal-
ing with EAJA. Judge Bennett reviewed the appli-
cable Board Rules. He concluded that he lacked
9 Like the ,fudge, we find that an evidentiary hearing is unnecessary
inasmuch as the parties ' written stipulation of facts contamed in the
record satisfactorily covers the key events relating to the grant of the 1-
week filing extension
'O The pertinent part of Peterson 's written request to Judge Bennett is
Counsel for the Employer hereby respectfully moves for an ex-
tension of time within which to file its application for attorneys fees
and expenses pursuant to the Equal Access to Justice Act from
November 16, 1981 until December 16, 1981 This request is necessi-
tated by the novelty of the Act under which application must be
made and the complexity of the underlying legal issues Copies of
this request have this day been hand-delivered to all interested par-
ties
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
authority to act on the Applicant's request and sug-
gested that Peterson contact the office of the
Board's Executive Secretary with respect to the re-
quested extension.11
According to the parties' stipulated facts, on the
same day, Peterson sent a telegram to John C.
Truesdale, Executive Secretary of the Board, re-
questing an extension of time within which to file
the Applicant's EAJA application.12 Although the
General Counsel was served with a copy of this
telegram, there is no indication whether the Appli-
cant solicited the General Counsel's view. The
General Counsel did not respond to the Applicant's
telegram to the Executive Secretary.
Peterson also telephoned the office of the
Board's Executive Secretary on the same day. Pe-
terson first spoke with Associate Executive Secre-
tary Joseph E. Moore and then Executive Secre-
tary Truesdale. Moore assured Peterson that some
extension would be granted. He, however, was not
certain that the full 1-month extension sought by
the Applicant would be granted. Moore stated that
he would have to discuss the matter and would call
Peterson back. Later that day, Moore and Peterson
talked again. This time Moore was less definite and
stated that he was uncertain whether an extension
would be granted. He then asked Peterson to speak
with Truesdale. Truesdale told Peterson that only a
few EAJA applications had been filed up until that
time, and that this was the first request for an ex-
tension of time within which to file such an appli-
cation. Truesdale asked Peterson how long an ex-
tension the Applicant was seeking. Peterson stated
that the Applicant was requesting an extension of
time until 16 December 1981 to file the application.
11 On 13 November 1981 Judge Bennett also forwarded a written
reply to Peterson regarding the latter 's request for an extension to the
EAJA filing period The pertinent part of his reply, which was received
by the Applicant 's counsel on 17 November 1981, is
This is in reply to your letter of November 13, 1981 , requesting an
extension of time in which to file an application for attorneys fees
and expenses pursuant to the Equal Access to Justice Act As I ad-
vised you during our phone conversation , it is my opinion that the
time prescribed for filing such application is statutory and that no ex-
tension may be granted It further is my opinion that such discretion
in this regard as may exist , would be exercised by the Executive Sec-
retary on behalf of the Board and not by the undersigned Section
102 149(b) of the Board 's rules and regulations pertains to motions
for extensions of time which may be made to the undersigned with
respect to motions, documents or pleadings filed with the administra-
tive law judge after referral of the case by the Board to the judge
Accordingly , I consider that I am without authority to grant your
aforesaid request
12 Peterson's telegram addressed to the Executive Secretary essentially
repeated verbatim the Applicant 's request and reasons for an extension,
which had previously been submitted to Judge Bennett, as described
above in fn 10 Peterson also mentioned in his telegram to Truesdale his
earlier dealings with Judge Bennett on this subject as follows.
This request has also been made of Associate Chief Administrative
Law Judge Edwin R [sic] Bennett in New York, it is being repeated
to you because Judge Bennett has expressed doubt concerning his
authority to pass upon this request under 29 C F R Section 102 149
Truesdale stated that a 1-month extension would
not be granted. Peterson then requested that the
time for filing the application be extended until 23
November 1981. The Executive Secretary granted
that request on behalf of the Board and later con-
firmed the extension by forwarding a telegram
dated 17 November 1981.
The Applicant admitted, and the judge found,
that if the Executive Secretary had denied the ex-
tension, the application could have been timely
filed. The Applicant specifically noted that its
counsel had offices in both Washington, D.C., and
Baltimore, Maryland, to facilitate compliance with
the filing requirement.
On 11 January 1982 Deputy General Counsel
John E. Higgins Jr. telephoned Robert Lewis, a
senior member in the law firm that represents the
Applicant. Higgins reiterated that the Board had
granted the Applicant an extension of time within
which to submit its application. He advised that for
future reference the firm should be aware that the
General Counsel had researched the law and con-
cluded that no extensions of time in which to file
EAJA applications may be granted. Higgins ad-
vised that this would be the General Counsel's po-
sition in all future cases.
Turning to the applicable law, EAJA, Section
504(a)(2), provides that a party seeking attorney's
fees and expenses "shall within thirty days of a
final disposition in the adversary adjudication,
submit . . . an application to the Board." 13 In
Monark Boat Co., 262 NLRB 994 (1982), the Board
observed that EAJA is a relinquishment of the
Government's immunity from suit and therefore
must be strictly construed, that the language of
Section 504(a)(2) with respect to the 30-day filing
requirement is mandatory, and that it makes no
provision for exceptions or Agency discretion.
These observations led the Board to conclude that
the 30-day period for filing an application is a juris-
dictional prerequisite which the Board cannot le-
gally extend. Since Monark, the Board has adhered
to this strict construction of Section 504(a)(2). It
has consistently held that the 30-day filing require-
ment of Section 504(a)(2) is jurisdictional and
cannot be waived or extended. For example, in
Lord Jim's, 264 NLRB 1098 (1982), and Columbia
Mfg. Corp., 265 NLRB 109 (1982), the Board held
that it could not legally expand its jurisdiction by
rulemaking or otherwise.
13 Similarly, Sec 102 148(a) of the Board's Rules and Regulations,
which was in effect when the Applicant 's application became due in No-
vember 1981, provides that "an application may be filed but in no
case later than 30 days after the entry of the Board's final order in the
proceeding " (Emphasis added)
ALL SHORES RADIO CO. 397
The Board does not stand alone in viewing
EAJA's filing requirements as jurisdictional. Both
the Eighth (in Monark Boat) and Ninth Circuits (in
Columbia Mfg. Corp. and Lord .Tim's) have enforced
Board decisions propounding this view and have
specifically concurred in the Board's strict interpre-
tation of Section 504(a)(2).14 The Eighth Circuit in
Monark, without hesitation, agreed that "the statu-
tory language and history of the EAJA supports
the Board's conclusion that the thirty-clay time lim-
itation was a mandatory, jurisdictional condi-
tion."15 Likewise, the Ninth Circuit in Columbia
Mfg. succinctly held that "the NLRB's strict con-
struction of the thirty-day time limit was cor-
rect." 16 In a slightly different context, while re-
viewing EAJA's other filing requirements, both the
Seventh and the District of Columbia Circuits
have, in effect, endorsed the determination that
EAJA's filing requirements are jurisdictional and
nonwaivable. 17
Coupled with this strong case precedent is an-
other indication that strict construction of Section
504(a)(2) is warranted. When EAJA was reauthor-
ized in 1985, the Board's interpretation of Section
504(a)(2) was not altered or even addressed by
Congress. On the other hand, where Congress dis-
agreed with a particular interpretation of other
EAJA language, for example, "position of the
agency" in Section 504(a)(1), the "lnisinterpreta-
tion" was corrected with the enactment of the 1985
amendments.18 Congressional inaction with respect
to Section 504(a)(2) suggests satisfaction with the
Board's strict interpretation of that provision.
In view of the foregoing, we agree with the
judge's rejection of the Applicant's argument that
the 30-day filing requirement of EAJA is a statute
of limitations and, as such, can be waived by the
Board. We, however, disagree with his view that
the strict interpretation of Section 504(a)(2) should
not be retroactively applied in the instant case, re-
lying on the Board's actions taken in Screw Ma-
chine Products Co., 94 NLRB 1609 (1951), and
Vanity Fair Mills, 256 NLRB 1104 (1981). Screw
Machine involved the exercise of the Board's dis-
cretionary jurisdiction. There was no contention
that the Board's broad statutory jurisdiction did not
encompass the employer's operations. A problem
arose because the Board was, at the; time, in the
process of changing the standards for the assertion
14 Monark Boat Co v NLRB, 708 F 2d 1322 (8th (:ir 1983), Columbia
Mfg Corp v NLRB, 715 F 2d 1409 (9th Cir 1983), and Lord Jim's v
NLRB, 772 F 2d 1446 (9th Or 1985)
la 708 F 2d at 1327
16715F2dat1410
17 Sonicraft, Inc Y NLRB, 814 F 2d 385 (7th Cir 1987), and Action on
Smoking & Health v CAB , 724 F 2d 211, 225 (D C Or 1984)
18 See, e g , 131 Cong Rec 9992 (July 24, 1985) (Senator Grassley)
of jurisdiction based on the volume of business
done by an employer . At the time of the filing of
the representation petitions in 1948 and 1949, the
employer 's volume of interstate commerce did not
meet the Board 's prior standards , but when an
unfair labor practice complaint against the employ-
er issued in 1950 , the employer's volume of inter-
state commerce did satisfy the Board 's new com-
merce standards . The Board declined to apply the
new standards retroactively and to assert jurisdic-
tion . This is very different from the instant case,
however, in which the Applicant has urged the
Board to expand its jurisdiction and accept an ap-
plication filed beyond the 30-day maximum statuto-
ry limit . It is not a matter of whether the Board en-
tertains a "liberal" construction of the Board's
rules . Rather , the Applicant has solicited action
from the Board which simply cannot be squared
with the language of Section 504 (a)(2) itself much
less with the legislative history and authoritative
judicial construction.
Similarly , distinguishable from the instant situa-
tion is Vanity Fair Mills, supra . Once again the
issue centered on the Board 's exercise of its discre-
tionary jurisdiction . The Board reinstated an un-
timely decertification petition because the individ-
ual petitioner , through no fault of his own and re-
lying on flawed advice from the Regional Office
regarding the Board 's contract-bar principles, filed
his petition after the employer and the union had
agreed to a successor collective -bargaining agree-
ment . The Board 's contract-bar principles , howev-
er, constitute a creature of Board policy designed
to balance the conflicting interests in providing sta-
bility to the bargaining relationship while allowing
the fullest exercise of employee choice in selection
of a bargaining representative. Noncompliance
with the Board 's contract-bar principles simply
does not extend the Board 's statutory jurisdiction.
Thus, we reject the judge 's erroneous notion that,
on prior occasions , the Board has declined to give
retroactive effect to a new Board rule which has
an impact on the scope of the Board 's statutory ju-
risdiction or has carved exceptions to the rules in
order to enlarge the Board 's statutory jurisdiction.
Based on the foregoing , we conclude that the
Board is without jurisdiction to consider the Appli-
cant 's application because it did not satisfy the
filing requirements of Section 504(a)(2). Even
though we consider this result to be the most faith-
ful to the statutory scheme of EAJA, we are not
insensitive to its harshness . In this regard, we are
guided by the recent remarks of Circuit Judge Eas-
terbrook in his concurring opinion in Bailey v.
Sharp , 782 F . 2d 1366 , 1373 (7th Cir . 1986), that "[a]
court without jurisdiction is a court without
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
power, no matter how appealing the case for ex-
ceptions may be." This holds true irrespective of
any application of the principle of the "law of the
case."19 We, therefore, shall dismiss the Appli-
cant's application for lack of jurisdiction.
The Applicant, however, claims that the dismis-
sal of the application would disserve the public in-
terest and it would be grossly unfair to "penalize"
an otherwise eligible party to receive an EAJA
award because its counsel justifiably relied on the
extension granted by the Board's Executive Secre-
tary. In this respect, the Applicant asserts that the
principles of equitable estoppel should be applied
here.
It is well recognized that estoppel is an equitable
remedy and should be used with care. Although
the U.S. Supreme Court has never clearly held that
estoppel is not available against the Government,20
the Court has repeatedly shown a strong reluctance
to find the Government estopped on the same
terms as private litigants.21 In Federal Crop Insur-
ance Corp. v. Merrill, 332 U.S. 380 (1947), the
Court held that a field representative of the Feder-
al Crop Insurance Corporation could not bind the
Government by entering into an agreement to
insure crops excluded from the program in ques-
tion by Federal regulations of which the agent and
the purchaser of the insurance were not aware. Jus-
tice Frankfurter, who delivered the opinion of the
Court, stated:
Whatever the form in which the Government
functions, anyone entering into an arrangement
with the Government takes the risk of having
accurately ascertained that he who purports to
act for the Government stays within the
bounds of his authority. The scope of this au-
thority may be explicitly defined by Congress
or be limited by delegated legislation, properly
exercised through the rule-making power. And
this is so even though, as here, the agent him-
self may have been unaware of the limitations
upon his authority. [322 U.S. at 384.]
Having recognized that the case presented hard-
ship, Justice Frankfurter further remarked that
18 We also reject the Applicant's claim that the General Counsel im-
pliedly agreed to the filing extension as the "law of the case " We do not
infer acceptance on the basis of the General Counsel's failure to respond
to the Applicant's two telegrams and Deputy General Counsel Higgins'
telephone conversation of 11 January 1982 described above We also do
not infer acquiescence from the fact that the General Counsel's motion to
dismiss on jurisdictional grounds was not submitted until July 1983 In
any event, acquiescence on the part of the General Counsel cannot
expand the Board's jurisdiction
20 See Moser v U. S, 341 US. 41, 47 (1951); Heckler V. Community
Health Services of Crawford County, 467 U S 51, 60-61 (1984)
21 Federal Crop Insurance Corp. v. Merrill, 332 U S 380 (1947), Mon-
tana v Kennedy, 366 U S 308 (1961), and US. Immigration & Naturaliza-
tion Service v Hibi, 414 U S 5 (1973)
[t]he circumstances of this case tempt one to
read the regulation, since it is for us to read it,
with charitable laxity. But not even the temp-
tations of a hard case can elude the clear
meaning of the regulation. [Id. at 386.]
In 1981 the Supreme Court in Schweiker it.
Hansen, 450 U.S. 785 (1981), reasserted its marked
opposition to estoppel of the Government in the
circumstances of that case. In Schweiker, an indi-
vidual did not file a written claim for her mother's
insurance benefits because the field representative
for the Social Services Administration erroneously
told her that she was not eligible for the benefits.
In its per curiam decision, the Court held that the
Government was not estopped even though the in-
dividual's failure to comply with the written filing
requirement was directly attributable to the field
representative's error. Fairness was not a consider-
ation in the Court's opinion, which essentially
adopted the dissenting opinion below of the late
Judge Friendly.
In his dissenting opinion, Judge Friendly made
two important observations which are applicable to
our considerations of the case here. His first obser-
vation was that an applicant's eligibility for an
award does not mean that he may ignore certain
application requirements. In other words, following
the conditions imposed on the application is not an
idle gesture even if the applicant meets the eligibil-
ity requirements. In this regard, Judge Friendly
stated that "Congress did not wish all those eligible
. . . to receive them," but "wished such benefits to
flow only to those applying for them." (Emphasis
added.)22 Judge Friendly's second observation was
that "[t]here are some rules of federal law that had
best [be] left unchanged until Congress decides to
alter them even when the result is much harsher
than here. This is one of them."23 In other words,
he was not persuaded that estoppel was the appro-
priate mechanism to allow for some deviation from
the written filing requirement imposed by regula-
tion. Judge Friendly's observations clearly support
our rejection of the Applicant's argument that
EAJA's filing requirements should be relaxed to
accommodate eligible parties who file applications
beyond the 30-day statutory deadline. We agree
with Judge Friendly's view that eligibility is simply
not enough.
In light of these Supreme Court decisions disfa-
voring estoppel when the Government is involved,
we are not in a position to chart out a different
course, especially in the instant case which in-
volves sovereign immunity. The Applicant, on the
22 Hansen v Harris , 619 F 2d 942, 957 (2d Cir 1980)
23 Id at 958
ALL SHORES RADIO CO. 399
other hand, claims that equitable doctrines apply
against the Government even in cases involving
waivers of sovereign immunity. For support, the
Applicant has directed our attention to, inter alia,
Armstrong v. United States, 516 F. Supp. 1252
(D.Colo. 1981); Exchange & Savings Bank of Berlin
v. United States, 226 F.Supp. 56 (D.Md. 1964); and
Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970). On
consideration, we do not consider any of these
cases so factually similar to the instant situation
arising in the EAJA context that their holdings are
conclusive to the question of whether estoppel
should lie here.
In Armstrong, supra, the Government repeatedly
and systematically misled the plaintiff, a former Air
Force Academy student, about his active duty
status at the time of his knee injury and treatment.
The district court found that the plaintiff relied on
the Government's conduct to his detriment by fail-
ing to file an earlier application for veterans bene-
fits following his discharge from the Air Force.
The court denied, on estoppel grounds, the Gov-
ernment's motion to dismiss the plaintiff's claim for
veterans benefits covering the period prior to the
filing date of his application. In finding that the
Government agents in Armstrong engaged in af-
firmative misconduct, the court in Armstrong was
quick to point out that estoppel is "rarely a proper
defense against the government" and "[t]he gov-
ernment is immune from estoppel only where the
acts of its agents are erroneous, illegal, or unau-
thorized." 516 F.Supp. at 1254. These statements
suggest that the district court in Armstrong would
have reached a different result and found no estop-
pel if it had been faced with the instant situation of
a Government agent exceeding his scope of author-
ity and erroneously purporting to confer statutory
jurisdiction beyond that conferred by Congress.
In Exchange & Savings Bank of Berlin, supra, the
taxpayer relied on the filing deadline set forth in an
IRS notice which had mistakenly been sent to him.
As a result, the taxpayer filed an untimely tax
refund action in the district court. The district
court held that the Government was estopped from
asserting that the taxpayer's suit was barred be-
cause the taxpayer failed to comply with the rele-
vant filing requirements. Although the filing re-
quirements were jurisdictional, the judge found
clear legislative recognition that the 2-year filing
requirement involved was not inflexible. On this
point, he found that the pertinent statute itself con-
tained a provision for exception to the 2-year filing
requirement. This is totally unlike the structure of
EAJA, which has no provision for exception, as
first recognized by the Board in Monark Boat Co.,
262 NLRB 994 (1982), enfd. 708 F.2d 1322 (8th
Cir. 1983).
Also distinguishable from the instant case is
Brandt v. Hickel, supra. In that case, the plaintiffs
had filed an application for an oil and gas lease
with the local office of the Bureau of Land Man-
agement . Based on its interpretation of a depart-
mental decision, the local office rejected the appli-
cation. The local office subsequently notified the
plaintiffs that they could refile their application by
deleting the objectionable part and without any
loss of priority in terms of gaining the desired
lease . Later, it was discovered that the local office
was wrong on both points and the plaintiffs lost
their priority. The court determined that the plain-
tiffs had been denied due process. In this respect,
the local office's notice to the plaintiffs was defi-
cient in that it failed to inform them that the rejec-
tion of their application adversely affected them
while mistakenly telling them that their priority
could be maintained by filing another application.
The court determined that collateral estoppel could
be applied and that the Secretary of the Interior
could be bound by the local office's misinformation
to the plaintiffs regarding the effect of a second
filing.
A notable difference between Brandt and the in-
stant case is that the former is concerned with the
administrative regularity of a system of appeals cre-
ated by the Secretary of the Interior. The immediate
result of the estoppel in Brandt was not to enlarge
the agency's statutory jurisdiction, but rather was
to ensure that the Secretary's own appellate rules,
which the Secretary had authority to make, were
administered in a fair manner. Given these circum-
stances, we fail to see how Brandt can be relied on
to extend our statutory jurisdiction under EAJA.
More is at stake than merely the Board's adminis-
tration of its own internal rules which are, in any
event, not inconsistent with the plain language of
Section 504(a)(2) of EAJA.
Accordingly, we conclude that equitable estop-
pel principles cannot be applied to enlarge the
Board's jurisdiction under EAJA.
ORDER
The application of the Applicant, The Long
Island Radio Company d/b/a All Shores Radio
Company, Babylon, New York, for attorney's fees
and expenses under the Equal Access to Justice
Act is denied.
Alison C Fairbanks, Stuart Weisberg, and Harold J. Datz,
Esqs., for the General Counsel.
Harold Weinrich, Esq., of Baltimore, Maryland, and
Andrew A. Peterson, Esq. (Jackson, Lewis, Schnitzler &
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Krupmen), of White Plains , New York, for the Appli-
cant.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
ROBERT T. SNYDER, Administrative Law Judge. This
supplemental proceeding is before the National Labor
Relations Board (the Board), for consideration of the
"Application for Award of Attorney's Fees and Ex-
penses," (the Application), filed by Respondent, the
Long Island Radio Company, d/b/a All Shores Radio
Corp. (Applicant), pursuant to the provisions of the
Equal Access to Justice Act (EAJA), Pub. L. 96-481,
Stat. 2325 and Sec. 102.143 et seq. of the Board's Rules
and Regulations.
I. HISTORY OF THE PROCEEDING
On 16 October 1981 no statement of exceptions having
been filed with it , and the time allowed for such filing
having expired , ' the Board issued an order adopting my
findings, conclusions , and recommended Order under-
signed as contained in my decision dated 27 August 1981
and dismissed the consolidated complaint.
After granting a request of Respondent extending the
time to file the application to 23 November 1981 an ap-
plication was filed on that date , and by Order dated 1
December 1981, the Board referred this matter to the me
for appropriate action.
By a more than seven-page ruling on motions and
order dated and issued 24 May 1982, I denied General
Counsel 's motion to dismiss the application, which relied,
in part, on the claim that the fees and expenses were not
recoverable because they were incurred prior to the ef-
fective date of EAJA,2 granted the Applicant's motion
to amend its application to include fees and costs in-
curred in the processing and litigation of the EAJA ap-
plication3 conditioned on compliance with the Board's
pleading requirements and authorized the filing within 10
days of an amended application during certain pleading
defects, and including additional fees and costs incurred
after 20 November 1981, the date of the Application,
except any fees or costs incurred in amending the origi-
nal application to comply adequately with the Board's
Rules.4
i At the request of the Charging Party, the time to file exceptions and
brief was extended to 5 October 1981.
2 These rulings in principle have since been affirmed by the Board in
DeBolt Transfer, 271 NLRB 299 (1984), in which it held that the award
shall include pre-1 October 1981 fees and expenses incurred defending the
unfair labor practice case and that the award shall include fees and ex-
penses for time spent pursuing recovery of attorney 's fees under the
EAJA
"Most courts which have considered the question have recognized the
right to recover attorney 's fees for the time spent litigating the fee issue
itself, both to prevent the defendant from effectively defeating enforce-
ment of the statute by erecting costly barriers to the fee recovery and to
enable the court to make its determination of fees on the basis of a full
examination of the facts " Berger, Court Awarded Attorneys' Fees What Is
"Reasonable'? 126 U of Pa Law Review 281, at 320, fn. 159 (1977)
' See fn. 2
4 Pursuant to Sec . 102 153(b) of the Board 's Rules and Regulations,
this ruling and order, together with all other interlocutory rulings,
amended applications, answer and amended answers, transcript of confer-
A first amended application was timely filed, which in-
cluded a claim for certain fees incurred to date in pursu-
ing the EAJA award. This was followed by the filing by
the General Counsel of an answer and memorandum in
support of an answer. In its answer, the General Counsel
withdrew a prior objection to the Applicant's claim of
eligibility by virtue of a net worth of less than $5 million
and employment of fewer than 5 million employees by
Applicant and its affiliates and subsidiaries. The General
Counsel denied that it was not substantially justified in
issuing a complaint and proceeding to a hearing in the
case, continued to press its objection to recoverability of
fees incurred prior to 1 October 1981, EAJA's effective
date, and fees related to the EAJA proceeding itself (al-
though an objection was previously rejected by me), and
pleaded that the amended application failed to sufficient-
ly detail the specific services performed as required by
Section 102.147(h) of the Board's Rules and that many of
the fees and expenses claimed were excessive and unrea-
sonable.5
On 16 July 1982 the Applicant filed a reply and
motion for partial summary judgment on the issue of sub-
stantial justification. After noting that Section 102.144(a)
places on the General Counsel the burden of proving
that its position over which the Applicant has prevailed
was substantially justified, the Applicant argued that the
General Counsel had neither provided supporting affida-
vits to supplement the underlying record nor requested
further proceedings on the question whether it was sub-
stantially justified, thus permitting decision on that issue,
without a hearing, based on the facts in the record in the
underlying proceeding. The Applicant supported its ar-
gument that the General Counsel had failed to satisfy its
burden of proving that it was substantially justified in the
underlying proceeding in a memorandum of law filed 2
August 1982, and accompanied this filing with a letter
arguing that I had the authority and should exercise it to
rule on this motion separately and apart from consider-
ation of the issue of the amount of any award of fees and
costs.
By memorandum filed 8 September 1982, the General
Counsel opposed the motion, arguing, inter alia, that it
was procedurally improper under the Board's EAJA
rules, it lacked merit because issuance of the complaint
was substantially justified, no fees were recoverable be-
cause, as of 1 October 1981, there was no "adversary ad-
judication" then pending since only the Charging Party
and not the General Counsel had requested an extension
of time beyond 1 October 1981 to file exceptions to the
judge's decision and therefore there was no governmen-
tal prosecution as of the EAJA effective date, and, final-
ly, "special circumstances" made an award of attorneys'
fees unjust.
ence, other written submissions including legal memoranda and briefs, re-
sponses and replies, comprise the record in this proceeding which shall
be forwarded to the Board for filing with the original of this decision
° Issue was thus finally joined on the two matters in dispute-substan-
tial justification and what fees, if any, are recoverable-although subse-
quent conferences, further amended pleadings including documentation
and memoranda, served to sharpen and refine the differences between the
parties
ALL SHORES RADIO CO 401
By letter dated 7 October 1982, and filed 8 October
1982, the Applicant filed a reply to the General Coun-
sel's response to the Applicant's motion, responding to
the arguments made by the General Counsel in its oppo-
sition to the motion. Ruling on the motion was reserved
and shall be made in this supplemental decision.
By Order dated 5 November 19132, I convened a pre-
hearing conference for 19 November 1982 to deal specifi-
cally with the issue raised by the General Counsel's
answer denying the Applicant's entitlement to the fees
sought and asserting that the claim to the fees lacked
specificity, was excessive, and contained errors in itemiz-
ing and describing specific services on which the claimed
fees were based.6 The Order required both parties to
come prepared to make full disclosure and state posi-
tions, to enter stipulations, and narrow the issues so that
a hearing on the issue of the reasonableness of the fees
sought could be limited or avoided, but if a hearing
proved to be necessary, it was set down for later that
month.
As a consequence of the discussions that took place on
19 November 1982, the conference was continued on 30
November 1982 to be held on the record. On 30 Novem-
ber 1982 a lengthy stipulation was read into the record,
memorializing an agreement entered into between the
General Counsel and the Applicant pursuant to which
Respondent would provide greater specificity and a
more detailed statement of the fees sought in its first
amended application and the General Counsel would
have an opportunity to respond.
The 30 November 1982 transcript-a half hour and
more than 14 pages in length-also contains my prelimi-
nary views that fees sought in connection with prepara-
tion of the data to be provided pursuant to the stipula-
tion would be denied for the same reason that I previ-
ously denied fees sought in connection with the Appli-
cant's preparation of the first amended application, al-
though ruling was reserved pending full submissions by
both parties. That reason was that the Applicant should
not be rewarded for time spent and services performed
in curing defects and inadequacies in complying with the
Board's Rules and Regulations requiring that "The Ap-
plication shall be accompanied by full documentation of
the fees and expenses for which an award is sought." See
Section 102.147(h) relating to the contents of the applica-
tion and documentation of fees and expenses.'
On 7 January 1983 the Applicant filed its second
amended application for attorney's fees, claiming a total
of $148,361.50 in connection with both the underlying
unfair labor practice proceeding ($125,506) and the in-
6 The General Counsel in its answer also made a specific request, if
warranted in the view of the judge , for a heanng , inter alia, whether the
fees claimed represented productive worktime and as to their reasonable-
ness
7 I noted on the record my view that the first amended application had
failed to comply with the specificity requirement of the EAJA and the
Board's Rules, but that, in view of the stipulation , I found it unnecessary
to so rule (Tr 13.) The Applicant also preserved its right to challenge its
claimed failure to comply with the full documentation i equirement, while
at the same time, in a good-faith effort to expedite the proceeding , agree-
ing to provide the specification demanded by the General Counsel insofar
as it could do so by reconstructing the details omitted from its retainer,
billing, and time records
stant EAJA proceeding ($22,855). Attached were 11 ex-
hibits detailing billing and time records and specifying
the dates, times by hour, and portions thereof, and nature
of legal services performed by each of 25 attorneys and
law clerks for whose services claim was asserted.
On 30 March 1983 the General Counsel filed its re-
sponse to applicant's second amended application, disput-
ing portions of the claim for fees as excessive and unrea-
sonable on its face and that it also lacked sufficient speci-
ficity in certain areas. The General Counsel sought a
considerable reduction in an award and, with respect to
claims lacking sufficient specificity, a denial of the claim.
On 20 April 1983 the Applicant filed a memorandum
of law in reply to the General Counsel's response.8
Subsequently, by letter dated 5 July 1983, the General
Counsel now for the first time raised the issue that the
Applicant was time-barred because of having failed to
file its application within the 30-day statutory period,
strictly construed by the Board in Monark Boat Co., 262
NLRB 944 (1982), enfd. 708 F.2d 1322 (8th Cir. 1983), as
a jurisdictional requirement.
Following a responsive letter dated 18 July 1983, from
the Applicant, in a joint conference call I proposed the
entry of a factual stipulation, which ultimately was pre-
pared and entered by the parties on 12 and 17 August
1983, respectively. The stipulation set forth the facts re-
lating to the Applicant's request and subsequent granting
of that request, by Executive Secretary John C. Trues-
dale, on behalf of the Board, for an extension of time
within which to file the original the application. By
order dated 24 August 1983, I incorporated the General
Counsel's 18 July 1983 letter motion and later submis-
sions, including the stipulation, into the record in this
proceeding, denied the Applicant's request for an eviden-
tiary hearing as unnecessary in the absence of any dis-
pute as to material issues of fact, and directed a briefing
schedule on this newly raised issue.
Both parties filed memoranda of law in support of
their respective positions, and by a more than 11-page
ruling on motion and order dated 28 November 1983, I
denied the General Counsel's motion to dismiss the appli-
cation for an award of fees and expenses on the ground
of untimely filing of the application, grounding this
ruling on the law of the case and the equitable principle
of collateral estoppel.
By letter dated 19 November 1983, the General Coun-
sel responded to a request for such advice from the par-
ties, that it would not seek special permission of the
Board to appeal my ruling on motion and order, but
would preserve its right to except thereto, if necessary,
following issuance of this supplemental decision.
On further inquiry from the Applicant by letter dated
5 January 1984, by order dated 11 January 1984, I grant-
ed leave to the Applicant to further update its claim by
filing a supplement to its second amended application to
s By order dated 18 March 1983 , I ruled, inter alia, that on the filing of
the Applicant's reply, the proceeding in all its ramifications would be
ripe for decision and, accordingly, no further submissions would be per-
mitted As will be seen infra, a further motion filed by the General Coun-
sel, going to the jurisdiction of the Board to consider the merits of the
EAJA claim itself, necessitated a limited departure from that ruling
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specify those services rendered in connection with the
instant proceeding from 1 December 1982 to date, and
leave to the General Counsel to respond.
On 14 February 1984 the Applicant filed a third
amended application, adding $41,561.50 to its claim. As a
consequence, the Applicant now sought an award of
$64,416.50 for services rendered in connection with the
EAJA proceedings to date, and an overall award (in-
cluding services related to the underlying unfair labor
practice proceeding) of $189,923.9
The General Counsel responded to this third amended
application in a response filed 6 March 1984, opposing
certain portions of the added claim as unreasonable be-
cause they were duplicative, excessive, nonproductive,
and improper and because they were curative of earlier
failures to comply with statutory requirements.
H. THE ISSUE OF SUBSTANTIAL JUSTIFICATION
A. Standard to be Applied and Allocation of the
Burdens of Proof
EAJA provides that an administrative agency shall
award to a prevailing party certain expenses incurred in
connection with an adversary adjudication, unless the
agency finds that the position of the government was
"substantially justified." 10
The legislative history of the EAJA also makes clear
that once the private party has demonstrated that it has
prevailed in the litigation, the Government bears the
burden of demonstrating that its position was substantial-
ly justified." The courts have consistently recognized
this principle. See, e.g., Spencer v. NLRB, 712 F.2d 539
(D.C. Cir. 1983); S & H Riggers & Erectors v. O.S H.R.C.,
672 F.2d at 430 (5th Cir. 1982); U.S. ex rel. Heydt v. Citi-
zens State Bank, 668 F.2d at 447 (8th Cir. 1982).
In its memorandum of law in support of its Reply and
Motion for Partial Summary Judgment, the Applicant
argues that "substantially justified" means that the Agen-
cy's justification for bringing the suit must be more than
reasonable; it must be substantial. It cites in support S &
H Riggers & Erectors v. O. S.H. R. C., supra ("the case was
nonfrivolous, that is, having some justification, merit or
foundation."); Wolverton v. Schweiker, 533 F.Supp. 420,
424 (D. Idaho 1982) (The standard of "substantially justi-
fied" is "slightly above one based on reasonableness");
9 A 22 February 1984 letter from Applicant added $345 related to an
inadvertent omission of an additional 4 6 hours of services, thus increas-
ing the EAJA award sought to $64,761 50 and the overall award sought
to $190,268
10 In 5 U S C A § 504(a)(1) the EAJA provides that
An agency that conducts an adversary adjudication shall award, to
a prevailing party other than the United States, fees and other ex-
penses incurred by that party in connection with that proceeding,
unless the adjudicative officer of the agency finds that the position of
the agency as a party to the proceeding was substantially justified or
that special circumstances make an award unjust
Sec 102 144(a) of the Board's Rules and Regulations, provides, in rele-
vant part, that
An eligible applicant may receive an award for fees and expenses in-
curred in connection with an adversary adjudication or in connec-
tion with a significant and discrete substantive portion of that pro-
ceeding, unless the position of the General Counsel over which the
applicant has prevailed was substantially justified
H R Rep No 1418, 96th Cong., 2d Sess 10-11, 19 (1980), S Rep
No 253, 96th Cong, 1st Sess 6, 21 (1979)
and Spang v. United States, 533 F.Supp. 220, 226 (W.D.
Okla. 1982) (An Agency's action may not be deemed
substantially justified where it "chose to gloss over" evi-
dence which would have exonerated the applicant from
the underlying charges).
The Applicant also relies on statements made during
the congressional hearings on EAJA for its claim of a
standard higher than "reasonable."
The General Counsel, in its memorandum in response
to the motion for partial summary judgment, disputes
this contention, pointing out that the subsequent commit-
tee reports in the House and Senate characterize the
"substantially justified" standard as one of reasonable-
ness:
The test of whether or not a government action is
substantially justified is essentially one of reason-
ableness . Where the government can show that its
case had a reasonable basis both in law and fact, no
award will be made . [S. Rep. 96-253, 96th Cong., st
Sess . at 6; H . Rep. 96-1418, 96th Cong., 2d Sess. at
10.]
The General Counsel also refers to the conference
report which states that "[t]he test of whether the Gov-
ernment position is substantially justified is essentially
one of reasonableness in law and fact." [H. Rep. 96-1534,
96th Cong., 2d Sess. at 22.]
Only one of the three cases relied on by the Applicant
is inconsistent with a standard of reasonableness. Of far
greater significance is the fact that, after the Applicant
filed its memorandum, the Board in Enerhaul, Inc., 263
NLRB 890 (1982), reversed in other grounds, 710 F.2d
748 (11th Cir. 1983), resolved this issue by holding that
the standard, in accordance with the legislative history
of EAJA, is one of reasonableness in law and fact. The
Board stated:
The legislative history of EAJA characterized "sub-
stantially justified" as a test of reasonableness, and
further clarified that, "(w)here the Government can
show that its case had a reasonable basis both in law
and fact, no award will be made." [H.R. Rep. No.
1418, 96th Cong., 2d Sess. 10 (1980), reprinted in 5
U.S. Code Con. & Ad. News 4984, 4989.]
The Board further commented in a footnote, "We do not
.. . suggest that a finding that the General Counsel es-
tablished a prima facie case is a prerequisite to finding
the General Counsel's position reasonable in law and
fact. We shall continue to analyze EAJA applications on
a case-by-case basis. Id. at fn. 3.
In Jim's Big M, 266 NLRB 665 fn.I (1983), the Board
expounded further on the standard and its relation to the
presence or absence of a prima facie case in the underly-
ing unfair labor practice proceeding:
In its exceptions, Applicant Jim's Big M argues,
in substance, that a failure of the General Counsel
to establish a prima facie case should automatically
entitle an applicant to an award under EAJA. Con-
trary to the Applicant's contentions, we find that
ALL SHORES RADIO CO 403
the presence or absence of a prima facie case is not
determinative of whether or not an applicant is enti-
tled to an EAJA award. Rather, the legislative his-
tory of EAJA states that the standard "is essentially
one of reasonableness" and is not to be equated
with "a substantial probability of prevailing,"
S.Rep. F96-253, at 6-7 (1979); H.R Rep. No. 96-
1418, at 10-11 (1980).' 2
In Jim's Big M, the Board had dismissed the complaint
after the administrative law judge had found the evi-
dence failed to establish a prima facie case based, in large
part, on the absence of credited evidence of union
animus by the Applicants. As the case 1 hus turned on
credibility, the Board concluded that the position taken
by the General Counsel was reasonable under its Ener-
haul, Inc., standard.
The Board's further elucidation of the standard in
SME Cement, 267 NLRB 763 (1983), is also enlightening.
There, in commenting on the administrative law judge's
correct description of the standard, the Board took care
to note "that for the General Counsel's position to be
substantially justified within the meaning of Sec.
102.144(a) of the Board's Rules and Regulations, the
General Counsel must present evidence which, if cred-
ited by the fact-finder, would constitute a prima facie
case of unlawful conduct by the Respondent." Id. at fn.
1.
The Board's standard has received approval not only
in the Court of Appeals for the Eleventh Circuit (Ener-
haul, Inc. v. NLRB, cited supra) but also in the Court of
Appeals for the Seventh Circuit (Temp Tech Industries v.
NLRB, 756 F.2d 586, 590 fn. 4 (7th Cir. 1985), and the
Court of Appeals for the Fifth Circuit (S & H Riggers &
Erectors, v. O.SH.R.C., 672 F. 2d 426 ( 5th Cir. 1982))
Spencer v. NLRB, cited supra, 712 F.2d at 560, further
notes that "Sensitivity to the central objective of the
[EAJA]-reduction of the deterrents to challenges of un-
reasonable government conduct--thus suggests that, in
categories of cases in which substantial investments of
effort and money commonly are required to prosecute
suits to their ultimate conclusions, the government
should be obliged to make an especially strong showing
that its persistence in litigation was justified."
B. Application of the Standard and Allocation of
Burdens of Proof to the Underyling Proceeding
It is clear that in the underlying proceeding the Appli-
cant prevailed. The consolidated complaint alleged viola-
tions of Section 8(a)(1), (3), and (5) of the Act. The alle-
gations included claims of discriminatory discharges of
three named employees, Maura Bernard, Alan Duke, and
Michael Devlin. The complaint also alleged a refusal to
bargain arising from the Respondent's, now Applicant's,
refusal to recognize the Charging Union, New York
12 Compare Spencer Y. NLRB., cited supra, 712 F 2d at 557, quoting
from a passage of legislative history
The standard , however, should not be read to raise a presumption that
the Government position was not substantially justified, simply because it
lost the case Nor, in fact, does the standard require the Government to
establish that its decision to litigate was based on a substantial probability
of prevailing 52 H R Rep No 1418, supra at 10-11, S Rep No 253,
supra, at 6-7, U S Code Cong & Admin News 1980, at 4889
Local, American Federation of Television and Radio
Artists, AFL-CIO (Union), in an appropriate unit fol-
lowing the Union's request to bargain The General
Counsel's theory of violation of the bargaining obligation
was grounded on the Gissel principle (NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969)), that the Applicant's
conduct was such, by virtue of its unlawful discharge of
three unit employees and expressions of hostility to union
organization , that the imposition of a bargaining order
was warranted. The General Counsel, of course, also al-
leged that the Union represented a majority of the bar-
gaining unit employees at the time of its demand.
Contrary to these allegations and relief sought, I found
no merit to any of these claims and recommended dis-
missal of the consolidated complaint in its entirety. Since
no exceptions were filed by any party (although the
Union received an extension of time to file exceptions
beyond the effective date of the EAJA-a matter which
will be briefly discussed in the next subheading), the
Board adopted my decision pro forma.
Regarding the next and central issue in this proceed-
ing, I conclude that the the General Counsel has failed
to sustain its burden of demonstrating that its position in
issuing a complaint and in litigating the allegations made
there was substantially justified.
The most compelling reason for reaching this conclu-
sion , that the Government 's case did not have a reasona-
ble basis in either law or in fact, is that the Government
failed to present evidence, although credited, which
made out a prima facie case of unlawful conduct by the
Applicant. SME Cement, cited supra.
The General Counsel relied on certain testimonial evi-
dence showing knowledge by the Applicant of union in-
volvement by employees and allegedly demonstrating an-
tiunion hostility, to help establish its case for discrimina-
tory discharge and the refusal to bargain. All of this evi-
dence was credited and found by me, yet was held to be
insufficient to establish a basis for concluding either that
the discharges were discriminatory or that the Applicant
refused to bargain in good faith.
Thus, I credited General Counsel witness Vickie
King's controverted testimony that she had told Alissa
Coates, secretary to the sales manager, in June 1979, the
year in which the alleged violations occurred, the jocks
were getting involved in a union. In this conversation
King was credited in referring to Bernard, Devlin, and
Duke's interest in organizing, although two others em-
ployees were named as most active. I also credited
King's later declaration to Coates in mid-October 1979
that the d.j.s (disc jockeys) were bringing in a union.
Coates did acknowledge in her later testimony on behalf
of the Applicant that she had responded, as King had
testified, she already knew and it was not going to do
any good. King was further credited in her controverted
testimony that after asking the receptionist in mid-No-
vember 1979, when a union demand letter addressed to
Respondent was expected to arrive, she attributed to
Coates the remark, "Don't worry, Sandra [personal sec-
retary to Respondent's president and general manager
Franz Allina] already knows about it."
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Significantly, I declined to credit Coates' denial that
she refrained from passing along to Respondent any in-
formation about the Union she received from King. King
was also credited, as against Allina's denial, that in her
own exit interview, among other things, Allina told her
he was bringing in a new staff and he felt she would not
cooperate with it.
On another conflict in testimony, between King and
Marty Curley, the program director, I concluded that, in
fact, on 10 or 11 November, 1979, at the time of the al-
leged discriminatory discharges, Curley had commented
when introducing a song called "Union City Blues" to
be played over the air, "that's the story of what's going
on around here."
In a conflict between dischargee Bernard on the one
hand and Curley and employee Ucciardo on the other, I
credited Bernard that in late October 1979, Curley re-
sponded to an employee inquiry about receipt of the
Union's demand letter, "Oh the Union, oh yes, Frank
[Franz Allina] and I have talked about that." Finally, I
also credited Ucciardo, as against Curley's denial, that on
l I November 1979, shortly after the alleged discrimina-
tory discharges, Curley told him to keep his nose clean
and not to speak to anybody who had been discharged
from the station. I further found that Ucciardo, a part-
time employee fearful of his own status with the Re-
spondent, "probably had more extensive discussions
about AFTRA [with Curley] at the time the staff mem-
bers' union interest was reviving and plans were under-
way for Ucciardo and Andres (the two employees who
played the leading role in the employees' revived interest
in union organization) to visit the AFTRA offices in
mid-September. . . . The very extent of Ucciardo's
friendship with Curley and reliance on Curley for
advice, in spite of the general secrecy with which the
d.j.s knowingly proceeded with their involvement, con-
vinces me that Respondent had some advance word that
the Union would be making a bargaining demand."
The foregoing recital establishes that whatever disput-
ed evidence of union knowledge and alleged unions
animus the General Counsel adduced on the record was
credited. 13 Neither the strictly limited evidence of union
knowledge, generally, nor the extremely limited evidence
of knowledge of the alleged discriminatees' union in-
volvement, nor the ambiguous statements supposedly re-
flecting on union attitudes which, I concluded, could not
support a finding of animus, were sufficient predicates
for claiming discrimination in the dismissals of the three
named employees. When coupled with the General
Counsel's failure to explain the retention of a no less
active union employee named Tortora, and evidence of
13 The other items presented by the General Counsel as bearing on
Respondent 's antiunion animus, but not disputed by Respondent, were
also noted in the decision One, a 20 November 1979 letter from Allina to
employees after filing of the union petition for certification in Case 29-
RC-4756 , urged rejection of the Union on the grounds , inter aha, that a
union contract would restrict employee access to discuss problems and
would make the employees subject to union rules, regulations, and finan-
cial obligations The other item was testimony by an employee that in a
group employee meeting held in December 1979, Allma reiterated his
views that possible union contract restrictions on access except by way of
shop steward and grievance procedures would interfere with employee-
management working relationships
the secretive and vacillating nature of the employees'
union interest , the only evidence which raises a suspicion
of union causation for the discharges is their timing,
coming 2-1/2 to 3 weeks after receipt by Respondent of
the Union 's bargaining demand and approximately the
same or even a shorter time after filing of the RC peti-
tion.
But even this mere suspicion is swept away by the
overwhelming evidence of Respondent 's valid business
reasons for the dismissal of the three named employees,
among others , on which it commenced to act well before
the employees renewed their union interest and surrepti-
tiously signed cards and the Union contacted the Re-
spondent and filed for an election:
Respondent 's consideration of employee replace-
ments, even of a wholesale nature . . . make clear
that even before the announcing staff made tenta-
tive gestures toward organizing , the Respondent
had made important managerial decisions which on
their application , ultimately led to the replacement
of the disc jockeys.
It is also apparent that during the hiatus in union in-
terest over the late summer , particularly from late
July to mid-September , Respondent took concrete
steps to actively recruit replacements for the d.j.s,
by advertising, soliciting applicants, renewing appli-
cants' demo tapes and making inquiries as to their
availability for permanent employment before actual
offers were ultimately made . There is hardly any
evidence to support the view that these activities
were related to employee union interest, and an
abundance of evidence to show their relationship to
increasing dissatisfaction with d .j.'s on air perform-
ance and lack of cooperation with the new format.
These business grounds constitute a second compelling
reason for concluding that the General Counsel had in-
sufficient basis to issue or to prosecute the complaint. All
Respondent 's asserted and persuasive reasons for replac-
ing many of its on-air staff were disclosed to the General
Counsel by the Respondent during the postcharge and
precomplaint investigation . As the General Counsel ac-
knowledges at page 3 of its answer to application dated
22 July 1982, "the Respondent, (herein also referred to
an [sic] `The station' or `the Applicant') while otherwise
cooperating in the investigation , refusal to permit its offi-
cials to give sworn signed affidavits ." [Emphasis added.]
Thus, the General Counsel does not dispute that all
the facts relating to the Respondent 's business defenses,
viz, the timing of the decisions to replace the on-air d.j.
staff, the reasons for doing so, including the ongoing
review of on-air performances and critiques of each d.j.
and the documentation which formed part of the basis
for the reviews and critiques, as well as the substance of
the meetings at which the d.j.s. were critiqued, were
either made available to it or could have been if they had
been requested."
14 According to the Board 's Casehandling Manual (Part One), Unfair
Labor Practice Proceedings , evidence is only sought from the charged
Continued
ALL SHORES RADIO CO 405
A third, subsidiary ground for concluding that the
General Counsel did not have a reasonable basis in law
and fact for issuing complaint, at least on the 8(a)(5) alle-
gation, is that, even apart from the lack of a majority in
the bargaining unit arising from the failure of the cases
of the three alleged discriminatees to rise to the level of
a prima facie showing of violation,15 the General Coun-
sel failed , in investigation , to consider or to include in
the unit all employees who appear on-air m accordance
with Hampton Roads Broadcasting Corp. (WCH), 100
NLRB 238 (1952), the case which first laid out the prin-
ciple that the separate community of interest among em-
ployees who regularly appear before the microphone
warranted a finding that such employees constitute an
appropriate unit apart from all other radio station em-
ployees 16
By excluding from the unit three employees, two regu-
lar part time and the third full time, who regularly
render services before the microphone, none of whom
executed union designation cards, the General Counsel
was clearly in error in alleging in the complaint majority
union support at the time of receipt of the Union's
demand. 17
In the consolidated complaint, the General Counsel al-
leged majority union designation and union demand as of
17 October 1979. That date was also erroneous, as the
record showed the Respondent did not receive the
Union's demand letter until 22 October 1979 at the earli-
est. As a consequence of this error, one employee, a
union signatory, who quit on either 17 or 18 October
could not conceivably have been included in the unit,
thereby reducing by one the union designees among the
employees.
The errors just enumerated, the failure to properly es-
tablish the date of the bargaining demand, and the failure
party when the charging party's evidence and leads point to a prima facie
case, par 10056 4 of the manual There is, of course , strong doubt that
the charging party's evidence and leads suggested a prima facie case On
the record , I found otherwise Furthermore , the manual also recognizes
that not all respondent (or charged party) representatives will submit
signed affidavits on interview and, when they are not forthcoming,
memorandum should be prepared outlining the information disclosed and
pertinent records and documents reviewed Manual at secs 10056 7 and
10058 2
15 If the date selected to measure the Union' s majority designations in
the unit is the date of Respondent's alleged unfair labor practices, 10 or
11 November 1979 , the exclusion of the three alleged discriminatees fur-
ther diminishes the Union 's showing among even the more limited group
of employees who comprised the unit as urged at the hearing by the
General Counsel
16 Recently , in KJAZ Broadcasting Co, 272 NLRB 196 (1984), the
Board departed from that principle where the facts show no readily sepa-
rate community of interest among on-air employees Of course, at the
time of the underlying proceeding Hampton Roads , supra, was still the
guiding law
17 The General Counsel may have relied on the Respondent's position
taken at the RC hearing in failing to consider or include the three addi-
tional employees in the on-air unit At that hearing , the Respondent failed
to mention the three employees , describe their duties, or take a position
on their inclusion This presumed reliance does not the shield General
Counsel from the obligation for purposes of investigating preliminarily to
issuing an unfair labor practice complaint of assuring that its actions were
reasonably based
The General Counsel ' s weak assertion made in its posttrial brief that
neither of the two regular part-time employees who should have been
added to the unit appeared live over the air waves, also fails to raise its
claim of majority designation to a reasonable level
to properly prepare on the composition of the unit, all
led to the Government's improper allegation of a refusal
to bargain in good faith, with serious adverse conse-
quences to Respondent As the Applicant points out and
includes in its moving papers, prior to hearing, the Gen-
eral Counsel sought a settlement from it including recog-
nition of the Union as exclusive bargaining agent and an
undertaking to bargain in good faith with the Union in
the unit of employees who render services before the
microphone Were Respondent to have agreed to that
settlement, it would have recognized a minority union
and, further, would have reinstated and made whole
three employees whom it had legitimately terminated
from its work force. For all the foregoing reasons, the
Applicant is thus in a strong position to claim fees under
the EAJA for having undergone the financial burden of
meeting at trial the Government's unreasonable claims
advanced by it in the consolidated complaint.
One last point here is in order During the hearing, in
the presentation of its case, the General Counsel failed to
take positions that might have strengthened its support of
the allegations of the consolidated complaint. On the fac-
tual issue of the date of receipt by Respondent of the
Union's bargaining demand, the General Counsel did not
offer any evidence to clarify or aid in establishing the er-
roneous date it alleged in the complaint. The difference
in dates affected the probable inclusion of one card
signer Although promised at the hearing, the General
Counsel failed to supply any argument or case law in its
posttrial brief on the issue of whether the discharged em-
ployees had engaged in protected concerted activities
when they criticized the new music format. Without
such presentation, the Government, already in a weak
position, lost an opportunity to seek to convince me that
the discharge of the three 8(a)(3)'s violations had some
nexus to Respondent hostility to their opposition to the
imposition of the new record playing policies, conduct
which itself, it could have argued, warranted protection
under Section 7 of the Act. While my conclusion was to
the contrary, the General Counsel presented me with no
argument that might have given cause for additional
thought. The General Counsel failed to prepare a proper
foundation for the introduction of a document-employ-
ee Ucciardo's written comments about conversations he
had with Manager Curley immediately following the al-
leged unlawful discharges-which would have corrobo-
rated and thereby strengthened the testimony I did re-
ceive and credit relating to this matter Finally, the Gen-
eral Counsel failed to properly and timely move to
amend the consolidated complaint to allege the conversa-
tion alluded to as violative of Section 8(a)(1) of the Act.
The foregoing failings in trial presentation reinforce
the conclusions I have previously reached that the Gov-
ernment here unreasonably proceeded to prosecute a
complaint, which its own witnesses failed to sustain and
which Respondent cooperation in the pretrial phase
showed clearly lacked any merit. Accordingly, I also
now grant Applicant's motion for partial summary judg-
ment on the issue of substantial justification on which
ruling had been reserved
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE GOVERNMENT'S CLAIM THAT NO
ADVERSARY PROCEEDING WAS PENDING ON 1
OCTOBER 1981
The General Counsel argues in its papers that because
only the Charging Union sought an extension of time
beyond the effective date of EAJA, 1 October 1981, to
file exceptions , the Government , was not pursuing an ad-
versarial claim against the Respondent when the EAJA
became effective .18 This argument lacks merit and the
General Counsel 's motion to dismiss the application pre-
mised on it is hereby denied.
Nothing precluded the General Counsel from filing ex-
ceptions after the effective date of the EAJA. The exten-
sion , granted at the Union 's request , was available to all
parties to the proceeding . Furthermore , nothing would
have prevented the General Counsel from filing cross-ex-
ceptions after the Union's filing of exceptions by 5 Octo-
ber 1981.
In any event , by issuing complaint , the General Coun-
sel set in motion a whole set of legal procedures, which
ultimately led to the pendency of the proceeding which
was instituted without final Board determination after
the effective date of EAJA. The General Counsel cannot
claim lack of participation in a proceeding it had sole au-
thority to commence and which it never abandoned
before or after 1 October 1981. If the General Counsel
had wished to avoid the implications and impact arising
from the EAJA at the time the Charging Union sought
its extension to file exceptions , it could have advised all
parties of that implication in an effort to convince the
Charging Union , for example , that an extension to file
exceptions , keeping alive the proceeding beyond 1 Octo-
ber 1981 without final Agency determination and not ex-
ercising the privilege of actually filing exceptions, sub-
jected it to the risk of a possible EAJA award. There is
no evidence that it did so. The General Counsel could
also have opposed the grant of an extension for the
reason cited , among others. Again, it did not do so.
Finally , any exceptions the Charging Union might
have filed would have permitted the Board to review all
matters and issues raised by the exceptions , examine the
record , and issue a decision resolving the basic question
of whether to sustain in whole or in part the General
Counsel 's complaint, thus, extending the adversary adju-
dication in which the General Counsel was the prosecut-
ing party , beyond 1 October 1981.
For the foregoing reasons, I also conclude that the
General Counsel has failed to show "special circum-
stances" within the meaning of 5 U.S.C.A. § 504 (a) (1)
(see § quoted at fn . 10, supra,), which would serve to
render an award of legal fees unjust or inappropriate as
argued by the Government at pages 7-8 of its 7 Septem-
ber 1982 memorandum filed in response to Applicant's
motion for partial summary judgment and other plead-
ings.
18 As noted earlier, one of the predicates for an award under the
EAJA is that there be an "adversary adjudication " conducted by an
agency of the Federal Government See In 10 supra
IV. REASONABLE ATTORNEY FEES
A. The Underlying Unfair Labor Practice Proceeding
1. Applicant 's second amended application
In this document , Applicant claims the following
hours , hourly rates and fees for legal services performed
by the following lawyers , law clerks , and summer associ-
ates (law students):
Name Hours Rate Fees
Mark L. Sussman,
Partner and Lead Counsel
697.019 $75 $52,275.00
Philip B. Rosen,
Associate and Second
331.6 70 23,21200
Counsel 508.9 75 38,16700
Arthur R Kaufman ,
Partner
24.5 75 1,837 50
Nell M . Frank,
Partner
6.5 75 487.50
Thomas P. Schnitzler,
Partner
3.3 75 247.50
William A Krupman,
Partner
2.4 75 180.00
Roger S. Kaplan,
Partner
9 75 67.50
Steven S Goodman,
Associate
29.0 75 2,175.00
Robert E Patterson,
Law Clerk
12 0 70 840.00
Jo-Anne P. Morley,20
Law Clerk
9.7 70 679.00
Harold R. Weinrich,
Associate
5.0 75 375.00
Andrew A. Peterson ,
Law Clerk
4.6 70 322.00
Paul J. Siegel ,
Associate
45 75 337.00
Nicholas J Taldone,
Associate
4.0 70 280.00
Berenice V. Figueredo,
Law Clerk
3.0 75 225 00
Richard J. Curiale,21
Law Clerk
1.0 70 70.00
John V. Nordlund,
Associate
.3 70 21.00
William Peters,
Summer Clerk (student)
48.8 40 1 ,952.00
Christopher C. Antone,
Summer Clerk (student)
6.0 40 240.00
Michael Shapiro
Summer Clerk (student)
5.2 40 208.00
David F . Jasinski ,
Summer Clerk (student)
4.0 40 16000
Karen Kurose,
Summer Clerk (student)
4.0 40 160.00
Seamus M Tuohey, 2.0 40 80.00
19 This figure represents a reduction in hours claimed of 11 5 to cor-
rect an error in computation and a reduction of 14 hours representing
services directly related to the EAJA proceeding.
20 The submission fails to specify whether Morley became admitted as
an attorney in 1980 before or after her services were performed on 15
August of that year
21 Again , the submission is unclear as to whether Cunale was admitted
to practice when he performed these services on 12 August 1980
ALL SHORES RADIO CO. 407
Name Hours Rate Fees
Summer Clerk (student)
Total. . . . . $123,919.00
The Applicant has provided evidence that this amount
was billed to it and the General Counsel does not dispute
that Applicant has incurred services in the underlying
proceeding for which it has incurred charges in the
amount claimed.
Neither does the General Counsel dispute the hourly
rate claimed for any lawyer, law clerk, or summer clerk
(student), nor does it claim that the reconstructed de-
tailed records prepared by Applicant's counsel do not
reasonably relate to the original time and billing records
on which they are based. See Lindy Bros. Builders v.
American Radiator Corp., 382 F.Supp. 999 11011 (E.D
Pa. 1974), vacated and remanded on other grounds 540
F.2d 102 (3d Cir. 1976) ("Lindy - D.C.").
The General Counsel raises a number of objections to
the fees sought. Each of these shall be briefly discussed
and then disposed of in turn.
In a memorandum in response to Applicant's motion
for partial summary judgment and other pleadings, the
General Counsel argues that Applicant unduly prolonged
the hearing. It cites the fact that although involving
three discharges and a bargaining order, the hearing took
12 days with Applicant, alone, calling seven witnesses,
many of whom testified at length about facts already in
the record. Applicant also engaged in lengthy direct and
redirect examination of its witnesses and protracted
cross-and recross-examination of the General Counsel's
witnesses. The record thus exceeded 2500 pages. Appli-
cant also submitted a 120-page posthearing brief.
The Government's claim here relates to Section 504(3)
of the EAJA which provides, in pertinent part, that:
"The adjudicative officer of the agency may reduce the
amount to be awarded . . . to the extent that the party
during the course of the proceedings engaged in conduct
which unduly and unreasonably protracted the final reso-
lution of the matter in controversy."22
I have reexamined the record and am unable to agree
with this contention. The Government called 10 wit-
nesses over 5-1/2 days of hearing. Their examinations,
with other matters, totaled over 900 pages of records. It
was prudent for Respondent to make every effort to
present, in turn, as strong a case as it could justifying the
discharges and changes in on-air personnel[ grounded in
management 's business judgment. To do so, it called,
among other witnesses, Respondent's vice president and
general sales manager , the programming consultant who
recommended and then participated in the process of in-
troducing the new programming format and the critiqu-
ing of and ultimate decisions to replace on-air staff; the
program director; and the president and general manag-
er.
The testimony of these witnesses was substantial and
extensive. Because each of them had participated in
meetings dealing with the Respondent's economic for-
tunes and with planning and implementing the radio sta-
tion's revised format and the role of the on-air staff in
seeking to make the format a success, it was natural to
key on these individuals in presenting Respondent's de-
fense. While reasonable men might differ about the ne-
cessity of getting a picture of the station's operations and
problems from every possible perspective and describing
the decision-making process that evolved in replacing
staff who proved to be ineffective from every witness
who participated, I am not about to conclude that in de-
fending itself in a case of this nature, Respondent acted
irresponsibly in presenting such a thorough defense A
case that might have concluded in 10 or 11 days rather
than 12,23 does not evidence an unreasonable protraction
of the proceeding. Neither did Respondent's lengthy
brief unduly prolong the decision making process. Re-
spondent's care in arguing and presenting its case proved
to be most helpful to me in isolating issues, making credi-
bility resolutions, and analyzing the record and the rele-
vant case law. Indeed, in spite of the length of its brief,
Respondent also failed to deal with the issue on which
aid was specifically sought, dealing with whether em-
ployee protests against the format constituted protected
concerted activity.If it had done so, its brief would have
been even longer.
Neither can I fault the extensive nature of the cross-
examination of the General Counsel's witnesses when
motive, union knowledge, animus, employee competence,
loyalty, and adherence to a new record playing format
for on-air performers were all subjects warranting explo-
ration.
As the judge's decision was also not unduly delayed,
having issued less than 11 months after close of hearing,
I conclude that the Government's claim lacks merit.
In its response to Applicant's second amended applica-
tion, the General Counsel objects to various categories
of fees claimed in the underlying proceeding.
Section 504(b)(1)(A) of the EAJA defines the fees
which may be awarded as follows:
(A) "fees and other expenses" includes the rea-
sonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test,
or project which is found by the agency to be nec-
essary for the preparation of the party's case, and
reasonable attorney or agent fees (The amount of
fees awarded under this section shall be based upon
prevailing market rates for the kind and quality of
the services furnished, except that (i) no expert wit-
ness shall be compensated at a rate in excess of the
highest rate of compensation for expert witnesses
paid by the agency involved, and (ii) attorney or
agent fees shall not be awarded in excess of $75 per
hour unless the agency determines by regulation
that an increase in the cost of living or a special
23 Two of the days were very short in duration because of problems in
scheduling witnesses In fact, the trial consumed not more than 10 full
22 Sec 102 144(b) of the Board's Rules tracks this language, providing trial days, with a few going into the evening hours
that "An award will be reduced if the applicant has unduly or un- At least one extensive Respondent witness was called out of sequence
reasonably protracted the adversary adjudication " on the agreement of all counsel in an effort to expedite the proceeding
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
factor, such as the limited availability of qualified
attorneys or agents for the proceedings involved,
justifies a higher fee.)
Section 102.145 of the Board's Rules and Regulations
provides, with respect to allowable fees and expenses:
Sec. 102.145 Allowable fees and expenses.-(a)
Awards will be based on rates customarily charged
by persons engaged in the business of acting as at-
torneys, agents , and expert witnesses , even if the
services were made available without charge or at a
reduced rate to the applicant.
(b) No award for the attorney or agent fees
under these rules may exceed $75 per hour. Howev-
er, an award may also include the reasonable ex-
penses of the attorney, agent, or witness as a sepa-
rate item, if the attorney, agent , or expert witness
ordinarily charges clients separately for such ex-
penses.
(c) In determining the reasonableness of the fee
sought for an attorney, agent, or expert witness, the
following matters shall be considered:
(1) if the attorney, agent , or expert witness is in
practice, his or her customary fee for similar serv-
ices, or, if an employee of the applicant, the fully
allocated cost of the services;
(2) the prevailing rate for similar services in the
community in which the attorney, agent , or expert
witness ordinarily performs services;
(3) the time actually spent in the representation of
the applicant;
(4) the time reasonably spent in light of the diffi-
culty or complexity of the issues in the adversary
adjudicative proceeding; and
(d) The reasonable cost of any study, analysis, en-
gineering report, test, project, or similar matter pre-
pared on behalf of an applicant may be awarded to
the extent that the charge for the service does not
exceed the prevailing rate of similar services and
the study or other matter was necessary for prepa-
ration of the applicant's case.
The Board has rejected a number of attempts to exer-
cise its rule-making authority to increase the hourly fee
above $75 an hour. See Stephens College, 268 NLRB
1035 (1984); International Maintenance Systems, 262
NLRB 1 (1982); Allied Lettercraft Co., 262 NLRB 2
(1982).
The General Counsel first asserts that the case present-
ed a relatively simple 8(a)(1), (3), and (5) proceeding.
Thus, the total hours claimed, in excess of 1500, appears
inordinately high. I do not agree that the Government's
characterization is accurate . No 8(a)(1), (3), and (5) case
is "simple." The issues in the underlying unfair labor
practice case were varied and complex. For Respondent,
each discharge case presented a separate set of facts that
had to be analyzed particularly with respect to the valid-
ity of its business defense and the competency and adher-
ence to company policy of each employee, in a field of
endeavor certainly out of the ordinary industrial or busi-
ness setting . The vanous indicia of factors normally re-
viewed to determine the presence or absence of a prima
facie showing of discrimination had to be evaluated and
analyzed . In particular , the unit issue required the mar-
shalling of evidence by Respondent to show the nature
of the work performed by all employees claimed to be
part of the unit and the cases relied on to warrant their
inclusion . While credibility was ultimately decided ad-
verse to Respondent 's position, it would have been
remiss of Respondent to have failed to marshall all evi-
dence at trial and in argument on which it relied in seek-
ing to sustain its position as to the truthfulness of its wit-
nesses' testimony denying statements evidencing union
knowledge , hostility, and motive attributed to them. Re-
spondent was justified in demonstrating at length the
degree to which it went in seeking replacement employ-
ees for the alleged discriminatees , among others, over a
number of months, prior to their termination, and the
facts relating to that effort. Finally, the Government's
prayer for unusual relief presented Respondent with the
arduous task of seeking to minimize the extent of its al-
leged unlawful conduct and overcoming the claim of ma-
jority designations at the time of its receipt of the
Union's bargaining demand , so that the reviewing au-
thorities , myself as judge , and then the Board , as review-
ing agency , would not be disposed to grant a Gissel bar-
gaining order.
The Government next disputes the claim for fees in-
curred prior to the issuance of complaint . On this matter
I am disposed to agree that no such fees are recoverable,
as they were not incurred "in connection with [an adver-
sary adjudication]" in the words of the statute and the
Board's Rules. See fn. 10 supra.
In Debolt Transfer, cited supra , Administrative Law
Judge Robert W. Leiner rejected a claim for fees and ex-
penses incurred prior to the date of issuance of the com-
plaint . He noted , among other things , that the General
Counsel has no power to file charges thereby initiating a
Board investigation and therefore no control over the in-
curring of expenses in the investigative , nonadjudicatory
phase of the case . Furthermore, as Judge Leiner also
noted , precomplaint legal fees are ordinarily expended
whether or not complaint issues, thus they are not in-
curred "in connection with" the adversary proceeding.
And where such services are most successful , in avoiding
issuance of complaint , no fees are recoverable. The
Board in Debolt Transfer, supra , affirmed Judge Leiner's
rulings, findings, and conclusions as modified and adopt-
ed his recommended Order, although it did not comment
separately on Judge Leiner 's rejection of precomplaint
claims as it did with respect to its affirmance of his al-
lowance of both pre-l October 1981 fees and expenses
incurred defending the case and for time spent preparing
and prosecuting the application for attorney 's fees. Nev-
ertheless , it is clear that the Board rejected recovery of
precomplaint services and I am compelled by logic and
precedent to agree.24
24 The Applicant' s citation of administrative law judge's decisions in
Columbia Mfg Corp, 265 NLRB 109 (1982), and Haynes- Trane Service
Agency, 265 NLRB 958 (1982), both reversing the judge's on other
grounds, have no precedential value whatsoever
ALL SHORES RADIO CO. 409
These services, totaling 60.1 hours of work performed
by attorneys Sussman, Weinrich, Frank, and Krupman
and representing $4507.50 of the fees sought, shall be de-
ducted from the amount recommended here. They re-
flect hours spent on investigation of both the 8(a)(1) and
(3) charge and, later, the 8(a)(l) and (5) charge, prior to
issuance of the two complaints.
The General Counsel next disputes fees sought in con-
nection with settlement discussions, meetings, confer-
ences, research, and document preparation. In particular,
the General Counsel objects to fees incurred as a result
of Applicant's efforts to reach private settlements with
the alleged discriminatees. Respondent/Applicant's ef-
forts resulted in the payment of moneys in exchange for
the execution of general waivers and releases by each of
the three discharged employees.
In the judge's decision, at fn. 39, I deemed it unneces-
sary to decide whether, as urged by Respondent, these
waivers barred relief for the dischargees inasmuch as I
had recommended dismissal of their cases. I nonetheless
concluded that in any event these negotiations between
Respondent and the individual dischargees, not involving
the Charging Union or the General Counsel, could not
interfere with the public remedies available to the claim-
ants under the Board proceeding, relying on the clear
precedent of Ideal Donut Shop, 148 NLRB 236 (1964),
enfd. 347 F.2d 498 (7th Cir. 1965).
My decision on this matter, however, is not the equiv-
alent of finding that Respondent's efforts in this regard,
once it determined that it could not agree to the Re-
gion's terms of settlement, including reinstatement and a
Gissel bargaining order, were so arbitrary as to warrant
exclusion of services performed in furtherance of these
individual settlements, from recovery of reasonable attor-
ney fees under an EAJA award. It is doubtful whether
the individual negotiations would have constituted unfair
labor practices, even independent 8(a)(5) violations, but
no such conduct was charged or litigated.
Respondent counsel's efforts here, like its other serv-
ices designed to minimize its client's liability under the
Act, were fully consonant with its overall legal effort in
defending against the consolidated complaint.
Further, the fact that Respondent would not have pre-
vailed on this issue had it been necessary to decide it,
does not lessen the validity of the claim. As held by the
court in Northcross v. Board of Ed. of Memphis City
Schools, 611 F.2d 624, 626 (6th Cir. 1979), in interpreting
a statute similar to EAJA, the Civil Rights Attorney's
Fees Awards Act of 1976:
This approach [of the District Court, in cutting a
fee award to a "prevailing party" where plaintiff
had not prevailed in some issues or parts of issue] is
not proper under the Fees Awards Act. The ques-
tion as to whether the plaintiff have prevailed is a
preliminary determination, necessary before the stat-
ute comes into play at all. Once that issue is deter-
mined in the plaintiff's favor, they are entitled to re-
cover attorney's fees for "all time reasonably spent
on a matter" The fact that some of the time as
spent in pursuing issues on research which was ulti-
mately unproductive, rejected by the Court, or
mooted by intervening events is wholly irrelevant.
So long as the party has prevailed on the case as a
whole the district courts are to allow compensation
for hours expended on unsuccessful research or liti-
gation, unless the positions are frivolous or in bad
faith.
Although the standard for recovery of fees differs
under the EAJA, the underlying rationale expressed here
is persuasive , makes eminent good sense , and I follow it
here.
Surely , "Courts should be wary of interfering too
deeply on the strategic judgments made by a litigator.
Time should be disallowed only if it reflects duplication,
padding, gross overstaffing , or if it was spent on clearly
frivolous claims." Berger , Court Awarded Attorneys' Fees:
What Is "Reasonable "?, 126 University of Pa. Law
Review 281 , at 320 (1977).
I also conclude , contrary to the General Counsel's
claim , that the hours claimed for work performed in con-
nection with the private settlements , 55 hours in whole
and 1.8 hours in part,25 are not excessive in terms of the
case involved.
The General Counsel further questions the time spent
by lead counsel Sussman and his associate counsel Rosen
in preparing outlines of witnesses ' examinations , both of
Applicant 's, and to a more limited extent , the General
Counsel 's. The total hours claimed are 114 . 6 in whole
($8595) and 79 . 5 in part ($5962 . 50). In some cases , the in-
formation provided by Applicant fails to show which
witnesses ' examination outlines were being prepared.
Also, in a number of instances, for example that of
planned examination of Program Director Martin
Curley, both Sussman and Rosen combined spent 42.6
hours in whole and 19 . 5 hours in part, preparing it.
Curley's testimony consumed 2 to 3 days. Given that
fact alone, I do not deem this time excessive . The Gener-
al Counsel further argues that on this preparation for
trial , among other phases of work , in which the Appli-
cant has failed to specify in further detail the particulars
concerning the nature of the work , the claim should be
denied.
Section 102.147 (h) of the Board 's Rules requires that:
(h) The application shall be accompanied by full
documentation of the fees and expenses for which
an award is sought . A separate itemized statement
shall be submitted for each professional firm or indi-
vidual whose services are covered by the applica-
tion , showing the dates and the hours spent in con-
nection with the proceeding by each individual, a
description of the specific services performed, the
rate at which each fee has been computed, any ex-
penses for which reinbursement is sought, the total
amount claimed, and the total amount paid or pay-
able by the applicant or by any other person or
entity for the services provided . The administrative
25 Hours spent "in part" reflects the fact that in some instances, a
block of time was shown on Applicant's breakdown as attributable to
more than one particular activity, such as research and witness prepara-
tion
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
law judge may require the applicant to provide
vouchers, receipts, or other substantiation for any
expenses claimed.
I do not interpret this Rule as requiring an Applicant
to do more than this Applicant has now done, general-
ly,26 in preparing its second amended application. When
work in a particular period of time covered more than
one category of work and even when the identity of the
particular witness prepared remains unclear, a rule of
reason must prevail. As noted by the Court of Appeals
for the District of Columbia Circuit:
The sound administration of justice requires a bal-
anced, informed approach to fee awards accom-
plished in reasonable time without turning such
matters into a full trial. In light of the broad policy
objectives [of] Congress . . . attorneys must not be
deterred from engaging in this type of work by the
prospect of protracted litigation over reasonable de-
mands for compensation. Nor should the zeal of gov-
ernment counsel be permitted to require applicants to
expend substantial additional time supporting fee
claims which will only result in a request for more
compensation for these additional labors.
National Ass. of Concerned Veterans v. Secretary of De-
fense, 675 F.2d 1319, 1329 (D.C. Cir. 1982) (emphasis
added) ("Concerned Veterans").
See also Lindy Bros. Builders v. American Radiator
Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II) ("It was not
and is not our intention that the inquiry into the adequa-
cy of the fee assume massive proportions, perhaps even
dwarfing the case in chief. Once the district court deter-
mines the reasonable hourly rates to be applied, for ex-
ample, it need not conduct a minute evaluation of each
phase or category of counsel's work.") Id. at 116.
In Lindy Bros. Builders v. American Radiator Corp., 487
F.2d 161, 167 (3d Cir. 1973) (Lindy 1), the Third Circuit
specifically stated that "[i]t is not necessary to know the
exact number of minutes spent nor the precise activity to
which each hour was devoted nor the specific attain-
ments of each attorney." Id. at 167 (Emphasis added.)
Rather, what is needed is "fairly definite information as to
the hours devoted to various general activities, e.g., pretrial
discovery, settlement negotiations and the hours spent by
various classes of attorney, e.g., senior partners, junior part-
ners, associates .... " Id. (Emphasis added.) Accord: Co-
peland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)
(Copeland III); Concerned Veterans, supra, 675 F.2d at
1327; Environmental Defense Fund v. Environmental Pro-
tection Agency, 672 F.2d 42, 54 (D.C. Cir. 1982) (EDF v.
EPA). The second amended application contains more
than 100 pages of information which reasonably com-
ports with the requirements set down in such decisions
as Lindy I, Lindy II, and Concerned Veterans. I conclude
that this Application is sufficiently detailed and adequate-
26 To be sure, claims may be legitimately contested , when on specific
categories of work, for example, the documentation may prove to be in-
adequate See, e g , the discussion , infra as to the claim for services in
researching a proposed motion to me never ultimately made
ly documented to permit me to make an independent de-
termination as to the justification for the hours claimed.
As to witness preparation, the General Counsel asserts
that the time involved, 156 hours, representing $11,700 in
fees, is excessive on its face. Further, the General Coun-
sel asserts some of this work was duplicative, e.g., both
Sussman and Rosen having spent different days prepar-
ing witness Curley. Finally, the Government notes,
again, that some of the time claimed, 34.2 hours in whole
and 49.9 hours in part, fails to identify the witness pre-
pared.
I am not prepared to find this work excessive, in light
of the serious and complex nature of the proceeding as
previously described (See Sec. 102.145 (c)(4) of the
Board's Rules, supra), the absence of any pretrial discov-
ery mechanism under existing Board procedure and the
degree of expertise of the lawyers representing applicant,
established both by the uncontested affidavits submitted
with the amended application as well as the reputation
this firm enjoys at the labor bar and the extensive nature
of their labor and Board practice of which I may take
official notice, S.E.C. v. Kelly, Andrews & Bradley, 473
F.Supp. 645 (S.D.N.Y. 1976); Opie v. Meacham, 293
F.Supp. 647 (C. D. Wyo. 1968).
Although the two latter factors are not specifically in-
cluded as factors to be considered under the Board's
Rules, the former is reasonably related to the time actu-
ally spent in the representation of the applicant, a factor
included at Section 102.145(c)(3) of the Board' s Rules,
because, I conclude, in agreement with the Applicant, as
argued in its memorandum of law in reply that the ab-
sence of any discovery mechanism placed a greater
burden on Applicant in terms of preparation naturally re-
flected in the hours spent in preparing witnesses for trial.
As to the latter factor, rather than calling for reduction
in time as argued by the General Counsel at, e.g., page
19 of its response, I also conclude that this factor is di-
rectly related to the reasonableness of actual hours ex-
pended, Board's Rule Sec. 102.145(c)(3), and note, in
agreement with Application's contention in its memoran-
dum of law in reply that more qualified and expert coun-
sel will take greater care in preparing witnesses and will
exercise greater skill in uncovering issues and analyzing
the case and its defenses, which, in the ordinary course,
will also naturally consume a greater amount of time.
All three of these factors, I also conclude, have
weighed heavily in my conclusions with respect to the
reasonableness of multiple counsel at trial and the time
reasonably spent in preparing Respondent's posttrial
brief. However, as this was a relatively complicated case
and multiple attorney's services were utilized, in order to
minimize the posssibility of duplicative, overlapping, or
padded claims , I will follow the lead of appellate courts
which have discounted the total hours claimed by a
small percentage and in this case reduce the fee allowed
by 10 percent. Thus, in Northcross Y. Board of Ed., cited
supra at 636-637 the court noted that "hours may be cut
for duplication, padding, or frivolous claims. In compli-
cated cases, involving many lawyers, we have approved
the arbitrary but essentially fair approach of simply de-
ducting a small percentage of the total hours to eliminate
ALL SHORES RADIO CO 411
duplication of services. Oliver v. Kalamozoo Bd. of Educ.,
576 F 2d 714 (6th Cir. 1978). Such an approach seems
preferable to an attempt to pick out, here and there, the
hours which were duplicative."
I also conclude that the General Counsel has failed to
show that merely because Curley (and Allina) were pre-
pared for trial by two different attorneys, the two coun-
sel were engaged in duplicative work. In light of the
nature of the proceeding and relief' sought by the Gov-
ernment , and the factual support for the work provided
by Applicant, I conclude that Applicant has met its ini-
tial burden of adequately documenting its claim here and
that the Government has not met its burden of contest-
ing the award on this issue. As stated by the court in
Concerned Veterans at 1337-1338 of the concurring opin-
ion of Tam, Circuit Judge:
The burden of proof is, of course, on the appli-
cant and remains with the applicant throughout the
proceedings. The initial burden of proceeding is
also on the applicant. The applicant meets this
burden by submitting an application accompanied
by the sufficiently detailed supporting documenta-
tion contemplated by Copeland and clarified by our
opinion today. The burden of proceeding then shifts
to the party opposing the fee award, who must
submit facts and detailed affidavits to show why the
applicant's request should be reduced or denied.
Just as the applicant cannot submit a conclusory ap-
plication, an opposing party does not meet his
burden merely by asserting broad challenges to the
application. It is not enough for an opposing party
simply to state, for example, that the hours claimed
are excessive and the rates submitted too high.
Neither broadly based, ill-aimed attacks, nor nit-
picking claims by the Government should be coun-
tenanced. District courts should examine with care
the "issues" raised by opposing parties. If they
appear to be more in the nature of a blunderbuss
attack than a precise and well-founded challenge,
the Government has failed to carry its burden, and
assuming that plaintiff has met his threshold burden,
the fees requested by plaintiff should be awarded.
However, as noted, this claim, as all others, will be dis-
counted by 10 percent.
The Government's further claims as to lack of specifi-
cation is denied, again because Applicant has met its ini-
tial burden under Concerned Veterans, supra , and Cope-
land v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980), by
sufficiently detailing the time devoted to preparation of
witnesses , and the General Counsel has failed to show
with facts and/or specific, detailed argument analyzing
those facts that preparation of other witnesses, not
named , or preparation of multiple witnesses on the same
day, without breaking down the time devoted to each,
was unreasonable. In the example the General Counsel
provides at pages 10-11 of its response, the witnesses
named , other than Curley and Alhna, to wit, Robert
Buchman , Tony Michaels, and Alissa Coate, each proved
to be important in the presentation of Respondent's de-
fenses, in its attempts to meet the evidence of alleged
animus, union knowledge, and marketability of the sta-
tion's musical format which the General Counsel sought
to show in the presentation of its case in chief. The total
time devoted to all named witnesses on the days in ques-
tion was also not unreasonable.
I am prepared to deny the General Counsel's objection
to recovery of fees for preparation for trial engaged in
by both Sussman and Rosen, for the reasons previously
stated Objection is also raised to claims made on behalf
of four others for preparation for trial: Partners Harold
Weinrich and Arthur Kaufman and associate John Nord-
lund and clerk JoAnne Morley. Contrary to the General
Counsel's assertion, Kaufman entered an appearance on
behalf of Respondent and participated at counsel table on
the first 2 days of hearing, 30 June and 1 July 1980. His
claim is supported and documented and shall be allowed.
Weinrich did not participate in the trial, and without an
adequate explanation for his involvement in this phase, I
will disallow the 2.0 hours ($150) so allocated. Nordlund
did not participate in the trial, and again , without an ade-
quate explanation, his .3 hour. ($21) is also disallowed.
Morley's claim for 2.6 hours. of preparation, as well as
7.1 hours. of participation in trial, both on 15 August
1980, shall be allowed. At the time, she was a law clerk,
although admitted to practice sometime in 1980. Her ap-
pearance at trial represented only a second counsel for
Respondent on that date, along with Sussman. As I have
earlier indicated, but now hold, Respondent acted rea-
sonably and responsibly in assigning two counsel to trial
of the underlying proceeding (but only two), and Mor-
ley's appearance on 15 August to assist Sussman at coun-
sel table is well within reasonable limits and her prepara-
tion and trial participation shall be compensated.
With respect to conferences, the Government's claim
that conferences among counsel should be disallowed be-
cause of the "vast wealth of labor law experience" of
Applicant's attorneys is rejected. Apart from the point
earlier made, that experienced and sophisticated counsel
will likely consult and plan strategy on more issues and
in greater depth than would routine counsel, their time
will also likely be far more productive than would be
that of an attorney or law firm with less expertise. See
Northcross v. Board of Ed. cited supra at 637. Confer-
ences held, particularly among or between partners, will
tend to have the salutary effect of sharpening issues,
more precisely defining positions and strategy, and there-
fore, aiding the trier of the facts in expediting the trial
and the decision, and making the trial process more pro-
ductive and efficient.
The Government's ground of objection that the
Board's Rules contemplate awards for only one attorney
because Section 102.145(b) speaks in the singular is un-
worthy of comment. As for the Applicant not specifying
the subject matter of the conferences, this was not gener-
ally the case. Conferences on trial and settlement strate-
gy and the possibility of 10(j) injunctive relief, between
partners and with another lawyer and clients related to
the nature of the issues and possibilities of settlement,
appear in the documentation. Where specification is lack-
ing I nonetheless conclude conferences were held on
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
germane matters and were not an unreasonable expendi-
ture of time.
I have already determined that a claim for two counsel
at trial was reasonable and, accordingly, reject the Gov-
ernment's contention to the contrary.
Concerning the General Counsel's contention that trial
attendance time has been inflated beyond the hours
during which the trial was held, I agree that the Appli-
cant's claim for 1 July 1980 is inflated, but by 1 hour, not
3.1 hours as contended. My review of the trial minutes
show the hearing on 1 July 1980, excluding the 50-
minute luncheon recess , was held over 6.05 hours (or 6.1
hours) as against the claim of 7.1 hours. I will reduce the
claim in this regard of Sussman and Kaufman, each, by
1.0 hour.
I will also subtract 2.3 hours from Sussman's claim of
4.3 hours and 4.3 hours from Rosen' s claim of 6.3 hours,
both for participation in the approximately 2-hour trial
session held on 2 July 1980. This session was extremely
short because a scheduled General Counsel witness failed
to appear and no others were then available. At the con-
clusion of the session an adjournment sine die was grant-
ed to permit enforcement of a subpoena for witness at-
tendance by the General Counsel.
Turning to the General Counsel's objections to time
claimed for research, I again express disagreement with
its characterization of the case as not particularly diffi-
cult. The Government was seeking a particularly serious
and comprehensive remedy-a bargaining order which
has been the subject of enumerable litigations. Whether,
assuming the Government established the Respondent's
liability on the three discharge cases, such a remedy was
warranted, was a prime subject for extensive research.
So, too, were the multitude of questions surrounding
each discharge case, the inclusion of certain employees
in the bargaining unit, and the date to determine majori-
ty status, among other legal issues . Again, experienced
and sophisticated counsel of the nature of the counsel
representing Respondent would reasonably spend more
time researching issues that might not have been consid-
ered or noted by inexperienced or less experienced coun-
sel. The Applicant's counsel were also within reasonable
parameters in assigning some of this work to law student
clerks (summer associates) whose hourly charge of $40
was slightly more than half permitted the hourly charge
of the attorneys assigned to the case. These charges shall
be affirmed.
On the brief submitted to me, I found it to be of excel-
lent calibre and most helpful in the preparation of my de-
cision. The care and skill taken in its preparation was
well worth the effort, even with respect to those por-
tions dealing with credibility resolutions Although I re-
jected Respondent's arguments for crediting its witnesses
when credibility conflicts appeared, their presentation
proved helpful to me in weighing and ultimately decid-
ing those questions. The legal arguments on unit, indicia
of discriminatory motive, and business justification for
the discharges , including extensive case citations and ap-
plication of these cases to the facts, were invaluable.
The time spent in reading and analyzing the transcript
and exhibits appears to have been reasonable-a pace of
280 pages over an 8 hour day is not unduly slow or inef-
ficient, especially given the nature of this case . Neither
was the time spent in drafting , revising , and redrafting
the brief ill spent , excessive , or unreasonable . The Gener-
al Counsel has failed to show by either facts or close
analysis that the claim made here should be disallowed.
The paucity of its argument that the claim should be lim-
ited to preparation of an adequate or acceptable brief
when the high stakes in this case justified preparation of
a superior brief is apparent . All charges related to its
preparation , including discussions and conferences
among counsel during its preparation , are fully warrant-
ed and shall be approved.
I do agree with the General Counsel that certain
claims for document preparation which fail to specify the
document prepared should be disallowed . Without de-
scribing the document , the General Counsel is in no posi-
tion to comment or adequately meet the claim . Accord-
ingly , the 5 .2 hours claimed for law student Michael Sha-
piro on 26 June 1980 shall be disallowed . Sussman's
claim for 2 . 7 hours in preparing two letters to Applicant
shall be allowed . A lawyer must , of necessity , be able to
consult periodically with his client , with respect to the
nature of the services being performed . Such time shall
be treated like any other compensable service. These let-
ters, not otherwise identified, are no exception.
The General Counsel 's objections to services in pre-
paring a motion for a bill of particulars and petitions to
quash subpoenas are rejected . Contrary to the General
Counsel 's assertion, Respondent did not lose on the
merits of the motion for a bill of particulars . My review
of the transcript shows that on certain demands included
in the motion , I directed the General Counsel to provide
the requisite information see, e . g., Tr. 15 , 17, 18, 19, 20,
and 22 (transcript of underlying proceeding). In any
event , as I have ruled earlier , even if Respondent's
motion had been denied in full , Applicant would be enti-
tled to recovery of fees incurred in its preparation.
Northcross v. Board. of Ed., supra.
There is also no question that Respondent did not
assert its objections to the subpoened materials in bad
faith or as frivolous gestures . They were asserted serious-
ly, and the rulings I made rejecting them appear at Tr.
1294 to 1300 of the underlying proceeding. Thus, the
preparation of the petitions to quash also constitutes time
reasonably expended in this matter. Northcross v. Board of
Ed., supra . The time devoted to all of these motions was
not excessive.
Concerning the time listed by Applicant in furtherance
of "motions prepared , but not made ," totaling 37 . 5 hours
in whole ($2812.50) and 4 . 8 hours in part ($360), I agree
with the General Counsel that it should not be compen-
sated . Whether it was unproductive , as claimed by the
Government , is unclear What I find decisive here is that
without describing the nature of the motion or motions
under consideration , the Government does not have the
requisite minimum information necessary to determine
whether to make a rational objection to the claim as ex-
cessive or unproductive and I do not have the necessary
information on which to base a rational judgment or
ruling . The Applicant having failed to provide sufficient
detail to permit either a reasoned attack or an independ-
ALL SHORES RADIO CO.
ent determination whether the hours claimed are justi-
fied, they shall be disallowed. Concerned Veterans, supra
at 1326.
With respect to certain miscellaneous items that the
General Counsel contests, I do not agree that requests
for extensions of time to file documents or postpone
hearing or brief should be uncompensated. They are part
and parcel of a lawyer's work and also may, in the par-
ticular circumstances, provide the time necessary to
better prepare a document or better prepare for resump-
tion of hearing. The Government must be aware that, as-
suming fees are otherwise recoverable, all services that
went into the successful defense against its prosecution
will be calculated and totaled if not subject to some infir-
mity, not here apparent.
The preparation of a trial book was certainly produc-
tive, and the time (12.7 hours) which went into its prepa-
ration as well as organizing files will be compensated.
The Applicant sufficiently described the "trial book,"
page 4 of exhibit 7 attached to its second amended appli-
cation,27 so as to overcome the General Counsel's objec-
tion on the ground of lack of specificity.
Nowhere in the second amended application do I find
time attributable to meals and travel. The General Coun-
sel's objection to such a request is accordingly rejected. I
do not decide whether such time is recoverable.
Any time attributable to the representation proceeding
will be disallowed as not arising in the unfair labor pro-
ceeding. The 3.5 hours in whole ($262.50) sought are
therefore rejected.
B. The EAJA Proceeding
1. Applicant's second amended application
In this document, Applicant claims the following
hours, hourly rates, and fees for legal services performed
by the following lawyers, law clerks, and summer associ-
ates (law students):
Name Hours Rate Fees
Andrew A. Peterson ,
Associate and Co-lead Coun-
sel
246.8 $75 $18,510.00
Harold R. Weinrich,
Partner and Co-lead Coun-
sel28
36.5 75 2,737.50
Roger S. Kaplan,
Partner
9.5 75 712.00
Dolores Gehhardt,
Law Clerk
16.0 40 640.00
Roger P . Gilson,
Associate
1.4 75 105.00
Philip B . Rosen,
Associate
.7 75 52.50
William A Krupman, .6 75 45.00
27 The Applicant described the book as including pleadings, outlines of
expected testimony of company witnesses , key cases in areas of the law
expected to be an issue , etc It appears to be akin to a trial brief, a docu-
ment whose preparation constitutes an excellent preparation for a trial.
28 Since July 1982
Name
Partner
Add 1.4 hours at $75 per hour
erroneously included in
breakdown for services per-
formed in underlying pro-
ceeding
Total ......................... .
105.00
$22,907.00
The General Counsel's opposition to this fee does not
include any attack on the fact that the Applicant has in-
curred charges in the amounts claimed.29 Neither does
the General Counsel dispute the hourly rates claimed nor
the correspondence between the breakdowns of time in-
cluded in the second amended application and the hours
for which Applicant has either been billed or for which
original records of time spent have been compiled.
Consistent with my interlocutory ruling denying fees
for time spent in amending the original application to
comply with the Board's Rules, see section I, paragraph
3, I will disallow the 11.5 hours ($862.50) claimed by
Andrew Peterson for preparing the first amended appli-
cation in order to comply with my 24 May 1982 Order,
as well as the .6 hours ($45) claimed by Roger S. Kaplan
for conferring with Peterson regarding my order at the
time Peterson prepared the amendment.
In its response, the General Counsel questions the time
devoted to research, 87.5 hours in whole ($6002.50) and
52.0 hours in part ($3900), by the persons named. Its
contentions that the time is excessive and duplicative is
rejected. This was a new law, requiring extensive re-
search. Furthermore, the Government cannot have it
both ways. By vigorously litigating the Applicant's
claimed entitlement to fees the Government cannot both
raise multiple issues seeking to block recovery and, at the
same time, claim that the Applicant's responses to this
effort do not warrant compensation. Indeed, the Govern-
ment can claim credit here for increasing the compensa-
ble and reasonable fees incurred in the EAJA proceed-
ing. As noted by the court in Copeland III, 641 F.2d at
888, in relation to the time generated in the underlying
proceeding, but which comment is equally applicable to
the nature of the litigation in the EAJA proceeding
itself:
While the Secretary now suggests that there were
really no serious issues at stake, this is not borne out
by the facts. The litigation went forward in a rela-
tively civilized manner but it was hard fought. The
Government offered firm, persistent resistance
throughout the litigation.
29 A contingent for arrangement was worked out between Applicant
and counsel pursuant to which the Applicant would, unless successful, be
invoiced for only one-half of the usual hourly rates of the attorneys prin-
cipally responsible for the EAJA proceeding That fee arrangement is not
attacked by the General Counsel and should not adversely affect recov-
ery in light of Sec 102 145 (a ) of the Board 's Rules that permits awards
based on rates customarily charged "even if the services were made
available without charge or at a reduced rate to the Applicant "
413
Hours Rate Fees
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A later comment by the same court directly related to
the fee proceeding itself is particularly apt:
Because time spent litigating the fee request is itself
compensable , the depth of the inquiry ironically
might lead to an increase, rather than a diminution,
in fee awards. [Id. at 896.]
It is well to note here that the reduction in fees by a
factor of 10 percent to minimize the possibility of dupli-
cative or padded claims applies equally to the claims in
the EAJA proceeding and the underlying case.
I reject the Government's objections to the 9.3 hours
in whole and 13.5 hours in part devoted by multiple
counsel to preparation of the original application, in
view of the necessity of counsel to familarize themselves
with a newly adopted statute and Board Rules and their
effort to prepare an application that would be dismissal
proof. Even so, the General Counsel prepared and filed a
motion to dismiss the application asserting a number of
deficiencies in its preparation.
I find the time (13.7 hours in whole and 5.1 hours in
part) spent on a 7-page letter response to the General
Counsel's response to Applicant's motion for partial sum-
mary judgment a reasonable expenditure of time, con-
trary to the General Counsel's claim that the time was
excessive. That letter was, in essence, a memorandum of
law in response to the General Counsel's opposition to
its motion that I dispose of the issue of substantial justifi-
cation on the papers filed before turning to the issue of
the fees. The Applicant's motion presented a well
thought out approach to handling this matter as a two-
step process and warranted serious consideration. Al-
though I did not grant the request to dispose of the sub-
stantial justification issue separately, the Applicant's
motion warranted the fee claimed, and is not separately
contested in the Government's response to the second
amended application.
The General Counsel's response to the motion for par-
tial summary judgment not only dealt with claimed pro-
cedural defects in the bifurcated procedure the Applicant
advocated in its motion but also made for the first time
or reiterated defenses to the EAJA application itself, in-
cluding substantial justification, special circumstances
exist rendering an award of fees unjust, recovery of fees
improper because no adversary adjudication as of the
EAJA's effective date, no basis exists for recovery for
fees incurred prior to the Act's effective date, undue pro-
longation of the hearing warranting reduction in fees,
and prohibition of fee recovery in the EAJA proceeding.
The Applicant was thus compelled to respond to each of
these defenses, and did so in a letter brief which was ec-
onomical and taut in its construction and presentation
and worth the fee incurred.
Two other contentions disputing time devoted to doc-
ument preparation, that by grouping several activities
within the same block of time listed for an individual at-
torney, the General Counsel cannot sort out the time de-
voted to each, and fee requests for extension of time to
file documents are unreasonable, are both rejected. I con-
clude that respective to the former contention, the Ap-
plicant provided sufficiently detailed summaries of serv-
ices reconstructed from its original billing and time
records so as to meet its burden of presentation in this
matter, see cases cited and quoted at supra, and I con-
clude as to the latter contention, it was the Government
by its vigorous litigation of the issues which led to the
request for extension of time and that such requests, in
any event, are part and parcel of a lawyer's services that
may be recovered as reasonable if the claim is otherwise
valid.
I further reject the Government's objection to fees
sought related to conferences held between counsel for
the reasons previously stated.
I reject summarily the General Counsel's objection to
participation in the informal conference held on 19 No-
vember 1982 by two of Applicant's counsel, noting that
the General Counsel appeared by two counsel at the
meeting that day. I finally reject the objection to 5-plus
hours Attorney Peterson devoted to reviewing my nine
page ruling on motions and order dated 4 May 1982.
Among other matters dealt with, that Ruling required
Applicant to take certain steps promptly if it wished to
continue to make claim for services in this proceeding at
the risk of dismissal of its application. The time Peterson
devoted to a close reading and study of its ramifications
was reasonably related to a successful prosecution of the
EAJA application.
2. Applicant's third amended applicationso
In this document, applicant claims the following hours,
hourly rates, and fees for legal services rendered by the
following lawyers:
Name Hours Rate Fees
Andrew A . Peterson,
Associate and Co-lead Coun-
sel
457.2 $75 $ 34,290.00
Harold R. Weinrich,
Partner and Co-lead Counsel
57.4 75 4,305.00
Philip B. Rosen,
Associate
12.6 75 945.00
Christopher C. Antone,
Associate
13.4 70 938.00
Mark L Sussman ,
Partner
12.4 75 930.00
Roger S . Kaplan ,
Partner
3.7 75 277.50
Donna R . Tsamis, 2.3 70 161.00
Associate .3 75 22.50
William A Krupman,
Partner
.6 75 45.00
Neil M. Frank,
Partner
.5 75 37.50
Total .................................. $ 41,951.50
This claim, like the earlier ones, is not disputed in
terms of the charges for which Applicant has been billed,
the hourly rates of counsel, or the fact that the claims
30 Applicant's request to modify the award sought to include 4 6 hours
inadvertently omitted from the third amended application is granted.
ALL SHORES RADIO CO. 415
are based on the time and billing records of counsel
which have been incorporated in the Application and
each amendment thereto.
The General Counsel again claims the fees sought are
unreasonable, excessive, and not sufficiently detailed. I
do not agree and, again, for the reasons I have previous-
ly stated respecting these same objections made to the
second amended application. As an example of the Gov-
ernment's erroneous objection to a so-called lumped-to-
gether claim, it disputes Peterson's claim for 3.5 hours in-
curred on 11 March 1983 when he "Reviewed General
Counsel's Answer; reviewed cases on reasonableness of
attorneys' fees; outlined Applicant's Reply to the Gener-
al Counsel's Answer." It would clearly be unreasonable
to require a further breakdown of the time which meets
Applicant's pleading burden, particularly when Appli-
cant is reconstructing allocations of time from billing and
time records almost a year old. Greater precision is not
required by the EAJA, the Board's Rules or the cases
previously cited and quoted at length and the Govern-
ment's attack here fails to satisfy its burden of showing
any of this time to be unreasonable or excessive.
An attack on Attorney Kaplan's claim for .9 hours in-
curred on three separate dates for a "conference" and
"research regarding legal standards governing fee appli-
cation and awards" because allegedly insufficiently ex-
plained also fails for the same reasons.
Turning to the Government's renewal of its contention
that fees incurred in preparation of the second amended
application are not recoverable, I agree, and will reduce
the fee award recommended by the 113.1 hours in whole
($8418.50) and 36.9 hours in part ($2767.50) spent com-
piling billing information and drafting the document and
the 3.2 hours in whole ($237) and 27.4 hours in part
($2055) spent discussing the document's preparation at
conferences and in telephones calls. This ruling confirms
the opinion I stated preliminarily at the continued con-
ference held on the record on 30 November 1982, and
for the reasons there stated. See section I, paragraph 10.
This denial of recovery penalizes Applicant for failure to
comply with the Act's and Rule's requirements, even
though if Applicant had timely and initially complied
with the pleading and specification standards, this time
would have been fully recoverable. I am not convinced
by Applicant's argument that a portion of this time
should be recovered or that deductions should be made
from earlier submissions only. In this ruling, I do not
adopt the General Counsel's arguments that this time
represents either duplication of work or is particularly
excessive or represents a reconstruction of billing
records,sl but rely solely on the contention that it would
be improper to reimburse Applicant for time spent by its
counsel in correcting an inadequate application under the
statute. In so ruling, I recognize Applicant's reservation
of its right, to contest, on appeal, my statement on the
s 1 As acknowledged by the court in Concerned Veterans, supra, 675
F 2d at 1326-1327, "the better practice is to prepare detailed summaries
based on contemporaneous time records indicating the work performed
by each attorney for whom fees are sought " This is precisely what Ap-
plicant ultimately and belatedly did, as well as including submission of
the actual time and billing records See EDF v EPA, cited supra, 672
F 2d 42 at 54
record of the conference that its first amended applica-
tion did not conform to the Board's specification require-
ments, and to challenge the degree of specificity request-
ed by the General Counsel. See footnote 6, supra.
In its response to the third amended application, the
General Counsel next attacks the claim for fees based on
Applicant's preparation of its memorandum of law in
reply to the General Counsel's response to the second
amended application. The General Counsel asserts that
because the memorandum of law was necessitated by
Applicant's failure to comply with the pleading require-
ments of EAJA of specifically detailing the services per-
formed, no recovery should be allowed. I do not agree.
As the prior two sections of this supplemental decision
(IV, A,1 and IV, B,1) make clear, the General Counsel's
response to the second amended application placed in
issue a whole host of objections to fee recovery of the
services detailed in the second amended application
which warranted Applicant in responding by way of its
memorandum of law. Indeed, by my Order dated 18
March 1983 I overruled the General Counsel's opposi-
tion to the Applicant's request for an extension of time
for filing its reply to the General Counsel's response to
the second amended application. Noting that as that
amended Application "constitutes a factual pleading re-
lating solely to the reasonableness of the legal fees
sought . . . to which the General Counsel has now re-
sponded with both factual and legal contentions, and to
which Applicant should have the opportunity of replying
by way of legal memoranda, in accordance with both the
wording and spirit of the Board's Rules and Regulations,
in particular Section 102.150 thereof, "I granted the re-
quested extension to file a Reply."
The Government's further attack on the size of the
fees claimed in preparing its memorandum in Reply is
also rejected. The General Counsel's response was 24
pages long, with a 9-page attachment. They made de-
tailed and specific arguments contesting the fees on nu-
merous and varied grounds. The Applicant was well
within reasonable limits in taking care in research and in
framing its replies to these arguments and in submitting a
42-page legal memorandum containing three exhibits at-
tached. Its arguments were cogent and knowledgeable
and helpful to me in resolving the numerous issues pre-
sented. Particulary apt here is the comment of the U.S.
District Court for the Southern District of N.Y. in Rich-
ardson v. Civil Services Commission of the State of New
York, 449 F. Supp. 10, 11-12 (1978):
This Court finds more persuasive the argument ad-
vanced by plaintiffs and accepted by other courts
that absent a showing of frivolity or bad faith a
court engaged in measuring the fairness of fees
sanctioned by the statute should not judge the stra-
tegic wisdom of every litigational tactic used or
employ omniscient hindsight to expand or contract
an award by a standard "requir[ing] attorneys (often
working in new or changing areas of the law) to
divine the exact parameters of the court's willing-
ness to grant relief."
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel disputes the fees sought in con-
nection with the preparation of Applicant's response to
the General Counsel's additional motion of dismissal.
This was the motion which raised , for the first time,
more than a year and a half after the filing of the appli-
cation, the issue of timeliness of the application. The
General Counsel calls this issue "relatively uncomplex."
To the contrary, it was thorny, difficult, and complex,
and, on my part, called for the deepest research and
thought I was called on to make in this whole litigation.
My ruling on motion and order exceeded 11 legal size
pages, double-spaced and cited and analyzed a number of
Supreme Court of the United States decisions in the
course of making my ruling denying the relief sought. It
was not unreasonable for Applicant's counsel to spend
the time it did, at least 116 hours, possibly another 124,
in research, drafting, and conferencing on Applicant's re-
sponse.
Attorney Weinrich's time devoted to drafting a three
page letter to me relating to the stipulation of facts I pro-
posed and Applicant's fear that only a hearing would
provide the kind of record necessary to resolve the issues
raised by the General Counsel's motion on jurisdiction
(timeliness) was not unreasonable under all the circum-
stances I have discussed and I will allow it. Again, re-
quests for extensions of time which I find did not unduly
delay the proceeding but which probably made the Ap-
plicant's presentations more effective and incisive are
fully compensable.
Finally, the conferences among Applicant's counsel, in
line with my earlier rulings on these objections, were, in
my review, not excessive, were productive, and contrib-
uted to a sharpening of issues and better quality in pres-
entation which in turn resulted in a more efficient and
productive conclusion to the litigation before me, and I
shall grant the fees requested for the time claimed.
Conclusion
On the basis of the foregoing, the Applicant is entitled
to recovery as legal fees the following amounts:
I. The Underlying Unfair Labor Practice Proceeding
A. Fees Claimed $123,919.00
B. Fees Disallowed 8,795.50
$115,123.50
C. 10% Reduction I1,512.35rn,s,n
D. Fees Allowed $103,611.15 $103,611.15
II. The EAJA Proceeding
A. Second Amended Application
1. Fees Claimed $22,907.00
2. Fees Disallowed 907.50
$21,999.50
3. 10% Reduction 2,199.50
4. Fees Allowed $19,800.00 $19,800.00
B. Third Amended Application
1. Fees Claimed $41,951.50
2. Fees Disallowed 13,478.00
$28,473.50
3. 10% Reduction 2,847.35
4. Fees Allowed $25 ,628.15
Total Fees $149,039.30
It is, therefore , my recommended32
ORDER
That Applicant be awarded $149,039 . 30 pursuant to its
EAJA application , as amended.
32 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