Auto Workers (B. F. Goodrich Co.)

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 281 (N.L.R.B. 2004)

AUTO WORKERS (B.F. GOODRICH CO.)
343 NLRB No. 42
281
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, Local No.
2333 (B.F. Goodrich Aerospace Landing Gear
Division of the B.F. Goodrich Company) and
David Smith. Case 8–CB–9023(E)
September 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On November 26, 2003, Administrative Law Judge
Earl E. Shamwell Jr. issued the attached supplemental
decision. The General Counsel filed exceptions and a
supporting brief. The Respondent (Respondent or Un-
ion) filed cross-exceptions, a brief in support of its cross-
exceptions, and an answering brief to the General Coun-
sel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Supplemental Decision
and Order.
The Union, having prevailed in the underlying unfair
labor practice proceeding, now seeks to recover its attor-
ney’s fees and expenses pursuant to the Equal Access to
Justice Act (EAJA) and the Board’s Rules and Regula-
tions.1 The judge, finding that this case consisted of two
distinct “components,” and that the General Counsel was
“substantially justified” in pursuing only one of those
two components, awarded the Union half of its requested
fees. The General Counsel filed exceptions, arguing that
the Union was not entitled to recover any fees; the Un-
ion, conversely, filed cross-exceptions seeking recovery
of 100 percent of its requested fees. We find that the
General Counsel was “substantially justified” in litigat-
ing the case, and we therefore dismiss in its entirety the
Union’s application for an award of fees.
The judge accurately stated the core law applicable to
this case. EAJA entitles an eligible prevailing party in an
agency adversary adjudication to an award of fees unless
the agency’s position was “substantially justified . . . on
the basis of the administrative record, as a whole.” 5
U.S.C. §504(a)(1); Section 102.143, Board’s Rules and
Regulations. “Substantially justified” means “justified to
a degree that could satisfy a reasonable person.” Pierce
v. Underwood, 487 U.S. 552, 565 (1988). In particular,
“where the General Counsel presents evidence which, if
credited by the factfinder, would constitute a prima facie

1 Originally, the Union applied for $19,285. The Union now claims
its costs have grown, to cover the EAJA litigation itself, to $26,115.85.
case of unlawful conduct, the General Counsel’s position
is deemed to be substantially justified within the meaning
of EAJA.” David Allen Co., 335 NLRB 783, 784 (2001)
(citing SME Cement, Inc., 267 NLRB 763 fn. 1 (1983)).
Background
The General Counsel’s complaint alleged, in essence,
that the Union violated Section 8(b)(1)(A) by its han-
dling of employee Smith’s grievance.2 The evidence
adduced at hearing showed that: Smith began his em-
ployment with the Employer in 1978; he was a supervi-
sor (and thus out of the bargaining unit) from 1979
through 1984; he was a poor supervisor and disliked by
many employees; he was returned to the hourly ranks
(and unit) in 1984; and upon his return to the unit, the
Union gave him an adjusted (unit) seniority date of 1982.
Smith was laid off twice during his tenure with the Em-
ployer: first, from 1994 to 1997, and second, from 1999
to 2000. Smith submitted a grievance to the Union re-
garding his second layoff, asserting that his hire date
governed for layoff purposes. The Union refused to
process the grievance, thereby prompting Smith to file an
unfair labor practice charge.
In support of his complaint, the General Counsel pro-
duced evidence that the previous independent union
(later affiliated with the Respondent) had used Smith’s
hire date, rather than his adjusted seniority date, to pro-
tect him from prior layoffs. The General Counsel also
entered testimony that the old union leadership tried to
explain Smith’s previous protection to the new union
leadership, but was met with derogatory comments about
Smith. The new union leadership investigated the griev-
ance and decided that Smith’s adjusted seniority date
controlled for layoff purposes. The Union thus decided
not to process Smith’s grievance further, taking the posi-
tion that there was no contract violation.
The judge recommended that the complaint be dis-
missed. The judge reasoned that the complaint alleged
that the Respondent refused to accept and process
Smith’s grievance because Smith refrained from engag-

2 The complaint, par. 6, alleged in relevant part:
(C) Since on or about November 19, 1999, Respondent has
failed and refused to accept and process a grievance concerning
employee David Smith’s layoff on or about October 22, 1999,
which he attempted to file under the provisions of the agree-
ment described above in par. 6(B).
(D) Respondent engaged in the conduct described above in
par. 6(C) because employee David Smith refrained from engag-
ing in union activities.
(E) By engaging in the conduct set forth above in pars. 6(C)
and 6(D) in connection with its representative status as de-
scribed above in pars. 6(A) and 6(B), Respondent has failed to
represent David Smith for reasons that are unfair, arbitrary, in-
vidious, and has breached the fiduciary duty it owes to said em-
ployee and the Unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD282
ing in union activities, and “further” alleged that the Re-
spondent’s failure and refusal was based on reasons that
were unfair, arbitrary and invidious, and, therefore, that
the Respondent breached its fiduciary duty to Smith.
The judge found that the record was “devoid of any
meaningful evidence” supporting the first allegation, and
that the General Counsel had not proved the second,
commenting that “this case does not rest on credibility.”
The Board subsequently dismissed the complaint, noting
the General Counsel’s exception to this comment, and
stated: “[W]e find that the judge made credibility find-
ings necessary for the resolution of the legal issue of
whether the Union violated Sec. 8(b)(1)(A) by refusing
to accept and process the Charging Party’s grievance.”
339 NLRB 105 fn. 2 (2003).
Supplemental Decision—EAJA
The judge’s supplemental decision, considering the
Union’s EAJA claim, echoes his underlying decision.
His disposition of the EAJA claim rests on his finding
that there were “two significant components to the
charges.” Thus, the judge found that the Union was not
entitled to recover fees to the extent that the General
Counsel alleged that the Union failed and refused to
process the grievance for reasons that were unfair, arbi-
trary and invidious, because that component was substan-
tially justified. The judge also rejected the Union’s ar-
gument that the General Counsel had failed to establish
the “core” charge, and he observed that the Board was
correct that he had made necessary credibility findings, at
least as to “one component of the charges.” Conversely,
he found the Union was entitled to recover fees to the
extent that it was forced to defend against a “phantom
charge” that it had failed and refused to accept and proc-
ess Smith’s grievance because he refrained from engag-
ing in union activities. Ultimately, the judge awarded the
Union $9642.92, derived by the “admittedly unscientific
method” of “simply dividing the Respondent’s claimed
fees and costs in half.”
Parties’ Exceptions
The General Counsel excepts to the judge’s finding
that the complaint involved two distinct and separate
issues. The General Counsel argues that the complaint
contained a single allegation—that the Respondent re-
fused to accept and process Smith’s grievance in viola-
tion of Section 8(b)(1)(A) that could be supported by two
theories: (1) that the Union’s action was motivated by
Smith’s refraining from union activities, or (2) that the
Union’s action was motivated by unfair, arbitrary or in-
vidious reasons. Alternatively, the General Counsel ar-
gues that, assuming this case involves two separate alle-
gations, the judge erred in finding that the General Coun-
sel was not substantially justified in pursuing both.
Quoting Glesby Wholesale, Inc., 340 NLRB 1059
(2003), the General Counsel argues that the Union is not
entitled to recover fees because the General Counsel’s
position, viewed as “an inclusive whole rather than as
atomized line-items,” was “substantially justified.” The
General Counsel maintains that its adherence to the
Board’s pleading manual justifies its approach to the
complaint.3
Finally, the General Counsel excepts to the judge’s or-
der of an award and to his calculation of that award.
According to the General Counsel, the judge’s initial
finding that the General Counsel was substantially justi-
fied in pursuing the allegation that the Union failed to
process the grievance for unfair, arbitrary and invidious
motives should have terminated any legitimate claim
under EAJA. Even assuming that there were two allega-
tions, the General Counsel argues that it is inconceivable
that the Union spent half of its resources on one allega-
tion and half on the other.
The Union filed three cross-exceptions. First, and like
the General Counsel, the Union argues that the complaint
alleges only a single violation of Section 8(b)(1)(A).
Unlike the General Counsel, however, the Union argues
that the single violation is supported by a single theory—
that the Union refused or failed to process Smith’s griev-
ance because Smith had refrained from engaging in un-
ion activities. The Union supports its position with its
reading of the complaint, maintaining that the “because”
used in paragraph 6(D) establishes the causal link, or
“sole theory,” and that paragraph 6(E), rather than ad-
vancing a second theory, merely describes the conduct
alleged in paragraph 6(D) as being “unfair, arbitrary and
invidious.” Alternatively, the Union argues that, assum-
ing this case involves two theories, the General Counsel
was not substantially justified in pursuing the allegation
that the Union refused to process Smith’s grievance be-
cause he refrained from union activity. Moreover, the
Union argues that Glesby does not compel dismissal of
its EAJA application, given that the General Counsel
failed to produce any evidence on one theory and pro-
duced discredited evidence on the other.
Second, the Union argues that the judge did not re-
solve credibility. The Union argues that the credibility
resolutions noted by the Board involved the General

3 The judge, agreeing with the Union that the General Counsel’s ad-
herence to the pleading manual was irrelevant, stated, “[I]t is not the
‘form’ of the complaint that controls . . . on the merits of an application
for fees and costs.” (Supp. JD, fn. 4.) The General Counsel excepts to
that finding. While we agree with the judge that the “form” of the
complaint is not determinative for EAJA purposes, we note that this
case was pled in accordance with the Board’s manual.
AUTO WORKERS (B.F. GOODRICH CO.) 283
Counsel’s “second theory” only. According to the Un-
ion, there was no need for the judge to make credibility
findings on the first theory (the only one pled in the
complaint) because, as the judge found, no evidence was
produced as to this theory.
Third, the Union argues that the judge erred in splitting
the award in half because the judge expressly found that
the General Counsel presented “no meaningful evidence”
to support the sole theory of the case. Thus, the Union
claims that it is entitled to 100 percent of its claimed fees
and expenses.
Analysis
As shown, the parties and the judge hold conflicting
views regarding whether this case involved one allega-
tion or two, one theory or two, one “component” or two,
a “core theory,” and so on. In our view, the case was
much simpler: it involved a single grievance giving rise
to a single 8(b)(1)(A) allegation. We rest our decision on
that fundamental premise.4
By his complaint, the General Counsel alleged, in es-
sence, that the Union breached its duty of fair representa-
tion in its handling of Smith’s grievance. Vaca v. Sipes,
396 U.S. 171 (1967), the seminal case in this area, estab-
lishes that a breach of the duty of fair representation oc-
curs only when conduct toward a member of the collec-
tive bargaining unit is arbitrary, discriminatory, or in bad
faith. Accordingly, the General Counsel is “substantially
justified” in pursuing the complaint if it is based on evi-
dence that, if credited, “could satisfy a reasonable per-
son” that the Union acted arbitrarily, discriminatorily, or
in bad faith in handling Smith’s grievance.
We find that the General Counsel met that burden
here. The judge discussed the General Counsel’s evi-
dence that the previous union had used Smith’s hire date
to protect him from layoffs, that he was not well liked by
fellow employees, that Union officials made derogatory
comments about him, and that these same officials
showed little or no interest in investigating the past bases
for protecting him. Considering that evidence, the judge
found that the General Counsel was substantially justi-
fied in pursuing the complaint as it related to a possibly
unfair, arbitrary and invidious motive in failing to proc-
ess the grievance. We agree with the General Counsel
that that finding should have terminated any further con-
sideration of the Union’s EAJA claim.
Our decision is bolstered by our prior finding, which
the judge acknowledged in his supplemental decision,

4 We therefore find it unnecessary to rely on Glesby, which both par-
ties cite to different ends. Glesby alleged violations of more than one
subsection of Sec. 8(a). Here, the parties do not dispute the fact that
only one violation is alleged—a violation of the duty of fair representa-
tion under Sec. 8(b)(1)(A).
that his ultimate findings in the merits phase of this case
turned on credibility. Because we might well have
reached a different result had the judge resolved credibil-
ity in the General Counsel’s favor, we find that the Gen-
eral Counsel’s litigation position was substantially justi-
fied. See cases cited above; see also Barrett’s Contem-
porary & Scandinavian Interiors, 272 NLRB 527, 528
(1984).
In sum, we find that the judge erred by fragmenting
what is, in reality, a single allegation, namely that the
Union violated its duty of fair representation vis-à-vis
employee Smith by its handling of his grievance. The
General Counsel was substantially justified in litigating
that allegation, both because: (1) it had a reasonable
basis in law and fact, and (2) it involved credibility is-
sues not subject to resolution by the General Counsel at
the investigative stage of the proceeding. We thus find,
contrary to the judge, that the Union’s EAJA application
for attorney’s fees and expenses should be dismissed.
ORDER
The recommended Order of the administrative law
judge is reversed in part and the Union’s EAJA applica-
tion for attorney’s fees and expenses is dismissed.
Tom Randazzo, Esq., for the General Counsel.
Bryan O’Connor, Esq. (Joyce Goldstein & Associates), of
Cleveland, Ohio, for the Respondent.
David Smith, of Parma, Ohio, for the Charging Party.
SUPPLEMENTAL DECISION
EQUAL ACCESS TO JUSTICE
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. On May
30, 2003, the National Labor Relations Board (the Board) af-
firmed my decision in this case (339 NLRB No. 20). I found
that United Automobile, Aerospace and Agricultural Implement
Workers of America, Local No. 2333 (the Respondent), did not
violate Section 8(b)(1)(A) of the National Labor Relations Act
(the Act) regarding its treatment of unit member and Charging
Party herein, David Smith, and dismissed the complaint in its
entirety.
On June 23, 2003, the Respondent filed with the Board an
application for attorney’s fees and expenses pursuant to the
Equal Access to Justice Act, 5 U.S.C. Section 504 (EAJA), and
Section 102.143 of the Board’s Rules and Regulations. On
June 25, 2003, the Board issued an Order referring the matter to
me for appropriate action. The General Counsel filed a motion
to dismiss the application on August 1, 2003; on August 12,
2003, the Respondent filed its response thereto. The Respon-
dent seeks legal fees and expenses in the amount of $17,320.00
and $1,965.85, respectively, totaling $19,285.85. The General
Counsel contends that the Respondent is not entitled to an
award under EAJA because in spite of the Respondent’s having
fully prevailed at the hearing, both the issuance and prosecution
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD284
of the complaint were substantially justified, as was his subse-
quent filing of exceptions to my decision.
On consideration of the entire record in this supplemental
proceeding, including the record in the underlying unfair labor
practice case, I make the following findings and conclusions of
law and order.
A. Equal Access to Justice Act Applied
EAJA, as applied through Section 102.143 of the Board’s
Rules and Regulations, provides that the respondent “in an
adversary adjudication who prevails in the proceeding, or in a
significant and substantive portion of that proceeding” may
apply for an award of fees and expenses incurred in the pro-
ceeding. To be eligible for an award, respondents must meet
certain eligibility requirements pertaining to net worth, corpo-
rate organization, and number of employees.
Once an eligible respondent files for an award, the burden of
proof is on the General Counsel to demonstrate that the
Agency’s position in each stage of the adjudication, including
issuing and prosecuting the complaint as well as filing excep-
tions to the judge’s decision, was substantially justified. In
Pierce v. Underwood, 487 U.S. 552, 565 (1988), the Supreme
Court ruled that “substantial justification” as applied in an
EAJA proceeding means “justified to a degree that could satisfy
a reasonable person” or having “a reasonable basis both in law
and fact.”1 Another basis for substantial justification exists
where credibility findings are critical in resolving the case.
David Allen Co., 335 NLRB 783 (2001).
B. The Respondent’s EAJA Application
In the instant application, the Respondent submits that at the
hearing, the General Counsel offered absolutely no evidence to
support what it views as the complaint’s “core” allegation; that
is, that the Respondent failed and refused to accept and process
Smith’s grievance concerning his layoff by the B.F. Goodrich
Aerospace Landing Gear Division of the B.F. Goodrich Com-
pany (the Employer) because Smith refrained from engaging in
union activities in violation of its duty to fairly represent him.
The Respondent also notes that the General Counsel’s excep-
tions to my decision filed with the Board did not include any
argument or make reference to any evidence at trial that would
support these pertinent complaint allegations.2 The Respondent
essentially submits that since the General Counsel, from his
opening statement to the filing of exceptions on appeal,3 never
adduced any evidence that Smith’s union activities motivated
the Respondent not to accept or process his grievance. The
Respondent argues that this omission strongly suggests that
there never was any such evidence to support the charges

1 The Supreme Court cites the source of that definition as a “Com-
mittee Report prepared at the time of the original enactment of the
EAJA.” The Report set forth “[t]he test of whether the Government
position is substantially justified [as being] one of reasonableness in
law and fact.” H.R. Conf. Rep. No. 96-1434 p. 22 (1980).
2 These allegations regarding this charge are set out in paragraphs
6(C) and (D) of the complaint.
3 I have not been provided copies of the parties’ exceptions filed
with the Board. However, the General Counsel does not take issue with
this assertion; therefore, I will accept this point as true.
against which, nonetheless, it was compelled to defend. The
Respondent asserts thus that since there was no evidence ad-
duced to support the charge there was not a reasonable basis in
law and fact to justify the core charges.
The Respondent also contends that the General Counsel ad-
vanced other arguments not pled in the complaint and thereby
forced it to address and present evidence concerning these un-
pled theories. The Respondent submits that in failing to pursue
the theory undergirding the complaint charges and pursuing
theories not contained in the original complaint, or added
thereto by timely amendment, the General Counsel has not
established substantial justification for the litigation.4
C. The General Counsel’s Motion to Dismiss
The General Counsel submits, first, that the complaint accu-
rately and sufficiently pled the allegations of wrongful conduct
by the Respondent and adequately notified the Union that it
was being charged with refusing to accept and process Smith’s
grievance for reasons that were unfair arbitrary, invidious, and
in breach of its duty of fair representation. The General Coun-
sel contends, second, that the complaint was based on signifi-
cant evidence that, if credited, would have established the
charges.
The General Counsel argues that the evidence adduced at
trial showed that Smith was protected from layoff in the past by
his union representative based on the agreed-upon hire date
criterion and the then pertinent contract clauses. He contends
in this regard that the failure to process Smith’s grievance was
contrary to past practices treating with the layoff issue.
The General Counsel also contends that there was sufficient
evidence that the Respondent’s failure to process Smith’s
grievance was based on his activities as a manager and because
the current union officials disliked him. The General Counsel
submits that if these reasons were credited, this would support,
reasonably, an inference that the Respondent failed to act on
Smith’s grievances for unfair, arbitrary, and invidious reasons
in breach of its fiduciary duty.
For these reasons, the General Counsel argues that he had
substantial justification and a reasonable basis in law and fact
in issuing the complaint, prosecuting the case, and filing excep-
tions.
D. Decisional Background
David Smith began his employment with the Employer in
March 1978. Smith had primarily been a unit employee and
continuously employed in various departments of the Com-
pany’s functions. However, during the period of 1979 through
1984, Smith was employed as a maintenance supervisor. In
1984, Smith returned to an hourly status with an adjusted (unit)
seniority date of October 11, 1982. Smith’s employment with
the Employer had been interrupted by two layoffs over time.
The first period was a layoff from June 7, 1994, through Sep-
tember 8, 1997, and the second October 22, 1999, through

4 The Respondent contends that it is irrelevant that the General
Counsel followed the Board’s Pleading Manual for violations of Sec.
8(b)(1)(A) of the Act. I agree. For purposes of EAJA, in my view, it is
not the “form” of the complaint that controls or has much bearing at all
on the merits of an application for fees and costs.
AUTO WORKERS (B.F. GOODRICH CO.) 285
April 24, 2000. The October 22, 1999 layoff formed the basis
for this litigation.
Certified collective-bargaining representatives have repre-
sented unit employees like Smith since about 1979, up to pre-
sent. During 1979 though 1991, the Aerol Aircraft Employees’
Association (AAEA), an independent union, represented unit
employees. The Respondent has represented the unit from
1991 to the present.
On October 22, 1999, Smith received official notice of his
layoff from the Employer. Smith addressed this matter with a
representative of the Respondent and requested that a grievance
be filed. On about November 22, 1999, Smith received a letter
from the Respondent advising him that it was not going to file
his grievance because after investigation, it was determined that
there was no violation of the collective-bargaining agreement.
Further, the Respondent advised that his layoff was justified by
his 1982 adjusted seniority date.
The complaint in this matter was issued on August 18, 2000,
charging a violation of Section 8(b)(1)(A) of the Act by virtue
of the Respondent’s alleged refusal to accept or process his
grievance.
E. Analysis and Discussion
Two preliminary observations. First, it should noted that, as
I stated in my decision, the complaint in question alleged essen-
tially that the Respondent failed and refused to accept and
process Smith’s grievance because he refrained from engaging
in union activities and that the failure and refusal to process the
grievance was based on reasons that were unfair, arbitrary, and
invidious in breach of the Union’s fiduciary duty to Smith.
Therefore, in my view, there were two significant components
to the charges in question. This is a significant point which
influenced my decision not to grant the Respondent’s motion to
dismiss at the conclusion of the government’s case in chief.
However, the Respondent is quite correct regarding the total
failure on the General Counsel’s part to establish the charge
that Smith’s refraining from union activities was the motivation
for the Respondent’s not accepting or processing Smith’s
grievance.
On the other hand, the General Counsel clearly adduced evi-
dence—union past practices regarding layoff and seniority and
union officials’ dislike for Smith—that, as noted, if credited
(believed by me), could form the basis of a violation of the Act.
The Respondent stakes its claim for an award on what it de-
scribed as the government’s failure to establish the “core”
charge. However, I do not accept that characterization; in my
view, the charges, while separate, are nonetheless condign. The
question is whether both charges meet the substantial justifica-
tion standards. Second, there is the matter of credibility and the
place this concept has in my rendering of the decision in ques-
tion.
The Board, in affirming my decision in a footnote,5 stated,
“We find that the judge made credibility findings necessary for
the resolution of the legal issue, of whether [the Respondent]
violated Section 8(b)(1)(A) by refusing to accept and process
[Smith’s] grievance.” The General Counsel in the instant mo-

5 See fn. 2 of the decision.
tion contends that I was overruled by the Board regarding my
credibility findings. I disagree with his assertion and wholly
agree with the Board. I note that there may have been some
misunderstanding created by my choice of language—
“Credibility, in my view, was not of much moment in my as-
sessment of the merits of each party’s claim.” By this state-
ment, I meant that no one witness’ testimony was more believ-
able than that of another. In so many words, in my view, each
witness testified with apparent sincerity and was not contra-
dicted by other credible evidence of record. I concluded, on
balance, each testified forthrightly. Notably, Chairman Battista
correctly noted in the decision that, in essence, the General
Counsel failed in his burden to establish by the preponderance
of the credible (testimonial) evidence the violation. Therefore,
for purposes of this EAJA claim, it is clear that I made credibil-
ity findings in resolving the issues at the trial before me and
that, on balance, the witnesses for each side were equally credi-
ble in my view. Thus, I would agree with the General Counsel
that credibility findings on my part were critical to the resolu-
tion of at least one component of the charges.
Conclusions
I made very clear in my decision that the General Counsel
adduced at trial absolutely no meaningful evidence to show that
the Respondent’s failure to accept or process Smith’s grievance
was based on or connected to his having refrained from engag-
ing in union activities. The Respondent, in my view, was
forced to defend (and expend resources) to defend against what
amounts to a phantom charge. Even here, in the context of this
EAJA application, the General Counsel offers nothing by way
of a defense to his failure to adduce evidence on the refraining
from union activities component. I firmly believe the Respon-
dent deserves to be compensated for fees and costs relative to
this charge.
On the other hand, the General Counsel, has, in my mind,
demonstrated to me that at each stage of the proceedings—
issuing and prosecuting the complaint, as well as filing excep-
tions to my decision—that he was substantially justified in
pursuing the complaint allegations relating to a possibly unfair,
arbitrary and invidious motive to the failure by the Respondent
to handle the grievance in question. Here, credibility made the
difference in my resolution of the charges. The Respondent is
not, therefore, entitled to an award as to this aspect of the litiga-
tion.
Accordingly, I would find and conclude that the General
Counsel had no substantial justification for issuing and prose-
cuting the complaint as well as filing exceptions to that aspect
of the complaint relating to the failure by the Respondent to
accept or process Smith’s grievance because he refrained from
engaging in union activities. The aforementioned stages consti-
tute significant and discrete portions of the proceedings within
the meaning of Section 102.143(b) of the Rules and Regula-
tions. Meaden Screw Products Co., 336 NLRB 298 (2001).6
The Respondent has therefore shown that it meets all of the
eligibility requirements for relief under EAJA. I also conclude

6 I would find and conclude also that no special circumstances make
an award unjust.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD286
that the Respondent is entitled to the legal fees and expenses it
incurred in processing its EAJA application.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7

7 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.
ORDER
The General Counsel shall pay to the Respondent $8660 as
legal fees and $982.92 as expenses, totaling $9642.92 com-
puted as of June 25, 2002.8

8 I have arrived at this award amount by an admittedly unscientific
method, namely by simply dividing the Respondent’s claimed fees and
costs in half and allocating equal amounts of the associated fees and
costs to each of what I deem to be two separate charges for purposes of
this EAJA application. I believe it unrealistic and uneconomical to
require the Respondent to attempt to determine how much time and
resources were devoted to the defense of one specific charge vis-a-vis
the other in this case.