Columbia Manufacturing Corporation

National Labor Relations Board - Board Decisions

Oct 15, 1982

265 N.L.R.B. 109 (N.L.R.B. 1982)

COLUMBIA MANUFACTURING CORPORATION
Columbia Manufacturing Corporation and Industrial
Carpenters Local Union No. 530, affiliated with
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 21-CA-19581(E)
October 15, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On May 27, 1982, Administrative Law Judge
Richard D. Taplitz issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, the Ap-
plicant and the General Counsel filed exceptions,
supporting briefs, and answering briefs. The Appli-
cant also filed a motion to supplement the applica-
tion for award, and the General Counsel filed a
notice of court decision published subsequent to
the issuance of the Administrative Law Judge's
Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions, briefs, and other submissions' and has de-
cided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge only to the
extent consistent herewith.
On October 21, 1981,2 the Administrative Law
Judge issued an order dismissing the complaint in
the underlying unfair labor practice case.3 The Ap-
plicant's application for an award of attorney's fees
and expenses under the Equal Access to Justice
Act (hereinafter EAJA)4 was filed on November
23.
EAJA, section 504(a)(2), provides that a party
seeking attorney's fees and other costs "shall,
within thirty days of a final disposition in the ad-
versary adjudication, submit to the [Board] an ap-
plication which shows that the party is a prevailing
party." The statute's 30-day filing period is a juris-
dictional prerequisite to application under EAJA,
and we are without authority to extend that filing
period beyond 30 days. See Monark Boat Company,
262 NLRB 994 (1982). Section 102.27 of the
Board's Rules and Regulations provides for dis-
P Consistent with our decision herein, the Applicant's motion to sup-
plement its application for award is hereby denied.
All dates hereinafter refer to 1981, unless otherwise indicated.
a On October 5, the General Counsel moved that the Administrative
Law Judge dismiss the complaint. On the same day, the Administrative
Law Judge ordered all parties to show cause, by October 16, why the
motion should not be granted No party responded to the Order To
Show Cause.
5 US.C.A. sec. 504 (1982).
missal (upon motion) by an administrative law
judge prior to issuance of a decision, and for
review of such an order to dismiss. Section 102.27
states that, "[u]nless [a] request for review is filed
within 10 days from the date of the order of dis-
missal, the case shall be closed."
With the above in mind, we turn to analysis of
the instant case. The question of "final disposition"
is governed by Section 102.27. As the last sentence
in that section makes clear, where no party files a
request for review of an order of an administrative
law judge dismissing a complaint prior to issuance
of a decision, the case is considered closed as of
the date of the order of dismissal. s Here, the Ad-
ministrative Law Judge issued his order dismissing
the complaint on October 21. And, since no party
filed a request for review, that order became the
final disposition of the underlying unfair labor
practice case.
The Applicant's application was filed with the
Board on November 23-33 days after the final dis-
position of the case. Thus, the Applicant failed to
comply with the jurisdictional time period specified
in section 504(a)(2) of EAJA, and we therefore are
without authority to pass upon the merits of the
application. Monark Boat, supra. Consequently, we
are compelled to dismiss the instant application for
lack of jurisdiction.
ORDER
It is hereby ordered that the application of the
Applicant, Columbia Manufacturing Corporation,
Gardena, California, for an award under the Equal
Access to Justice Act be, and it hereby is, dis-
missed.
a Indeed, the Administrative Law Judge correctly noted that it was
the date of his order dismissing the complaint that established that the
Applicant had prevailed.
SUPPLEMENTAL DECISION
[Equal Access to Justice Act]
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard before me on August 4 and 5, 1981.
The charge was filed on September 24, 1980, by Industri-
al Carpenters Local Union No. 530, affiliated with
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, herein called the Union. It alleges that
Columbia Manufacturing Corporation, herein called the
Applicant, discharged eight employees because of union
activity. The charge was amended on October 22, 1980,
to allege that 10 employees were discharged for that
reason. The complaint issued on November 6, 1980. It al-
leges in substance that four employees (Ramon Amador,
265 NLRB No. 12
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosa Rodriguez Herrera, Teresa Jiminez, and Carlos
Nuno) were discharged by the Applicant because of
their protected strike activities. At the hearing the Appli-
cant contended that it lawfully discharged those employ-
ees because they engaged in strike violence. At the
outset of the hearing on August 4, 1981, counsel for the
General Counsel moved to dismiss those allegations of
the complaint which related to Amador and Nuno. That
motion was granted. After the close of the hearing on
August 5, 1981, but before the issuance of my decision,
the Applicant made the contention that it had evidence
that one of the witnesses called by the General Counsel
had given false testimony. After various motions were
made, I reopened the hearing and scheduled October 7,
1981, for the receipt of any evidence the parties wished
to offer relating to the possibility of abuse of the Board's
process or false testimony. By motion dated October 5,
1981, counsel for the General Counsel sought an order
dismissing the complaint and closing the hearing. The
motion stated that the Region had reviewed the case file
and transcript of the hearing and had decided that the
case was without merit and should not be pursued. On
October 5, 1981, I adjourned the hearing without date
pending consideration of the motion and ordered all par-
ties to show cause, if there was any, on or before Octo-
ber 16, 1981, why the motion should not be granted.
None of the parties responded to that order to show
cause. The motion was granted and the complaint was
dismissed by my order dated October 21, 1981.
In an application dated November 20, 1981, the Appli-
cant seeks an award of attorneys' fees and expenses
under the Equal Access to Justice Act, Pub. L. 96-481,
94 Stat. 2325, 5 U.S.C. §§ 504 and 102.143 (1982), et seq.
of the Board's Rules and Regulations. That application
was filed with the Board in Washington, D.C., on No-
vember 23, 1981. By order dated December 3, 1981, the
Board referred the application, together with a motion to
withhold a net worth statement from public disclosure,
to me for appropriate action. No opposition has been
filed to the motion to withhold the net worth statement
from public disclosure and that motion is hereby granted.
Counsel for the General Counsel has filed an answer'
dated April 19, 1982, to the application and the Appli-
cant has filed a reply and a Motion for Partial Summary
Judgment dated May 6, 1982.2
This Decision is made on the documents in the record
pursuant to Sections 102.153 and 102.153(a) of the
Board's Rules and Regulations.
I. ISSUES
Counsel for the General Counsel has raised nine sepa-
rate defenses to the application. They present the follow-
ing issues:
1. Whether the application was timely filed.
2. Whether the application was defective in that it did
not indicate affiliates and subsidiaries.
3. Whether the General Counsel's position in the un-
derlying case was substantially justified.
i The answer and a memorandum submitted in support thereof is re-
ferred to herein collectively as the answer.
2 The issues raised in the Motion for Partial Summary Judgment will
be considered in this Decision and the motion is therefore denied.
4. Whether fees and expenses incurred before the ef-
fective date of the Act, October 1, 1981, are recoverable.
5. Whether fees and expenses incurred before the issu-
ance of complaint are recoverable.
6. Whether fees and expenses incurred in the litigation
of collateral proceedings such as unemployment hearings
and appeals and arbitration proceedings are recoverable.
7. Whether fees and expenses relating to litigation in-
volving Amador and Nuno are recoverable.
8. Whether fees and expenses related to the Equal
Access to Justice Act proceedings are recoverable.
9. Whether the fees and expenses requested by the Ap-
plicant are reasonable.
11. FINDINGS
A. The Timeliness of the Application
By motion dated January 22, 1982, counsel for the
General Counsel sought to dismiss the application. One
of the grounds raised in that motion was that the applica-
tion was untimely. By order dated March 18, 1982, I
denied that motion. In its answer counsel for the General
Counsel reraises the issue of timeliness. My conclusion is
the same. However, for the convenience of those reading
this Decision, I shall restate the basis for my order rather
than incorporate it by reference.
My order dismissing the complaint issued on October
21, 1981. As indicated in the signed declaration of Alfred
J. Landegger, attorney for Respondent, which is annexed
to his points and authorities in opposition to the General
Counsel's motion, that order was received by the office
of Respondent's attorney on October 27, 1981. The
Board order referring this matter to me indicates that
Respondent's application was filed with the Board in
Washington, D.C., on November 23, 1981.
Section 504(a)(2) of the Equal Access to Justice Act
states:
A party seeking an award of fees and other ex-
penses shall, within thirty days of a final disposition
in the adversary adjudication, submit to the agency
an application ....
Section 102.148(a) of the Board's Rules and Regulations
provides that:
An application may be filed after entry of the final
order establishing that the applicant has prevailed in
an adversary adjudication proceeding . . . but in no
case later than thirty days after the entry of the
Board's final order in that proceeding. ....
In the instant case it was the order of the Administrative
Law Judge dismissing the complaint rather than a final
order by the Board that established that the Applicant
had prevailed. A serious argument can be made that the
Administrative Law Judge's order should not be consid-
ered a final disposition until the Charging Party had
failed to take an appeal to the Board on the dismissal
after a reasonable time period had elapsed after the issu-
ance of the Administrative Law Judge's order. However,
even assuming that the Administrative Law Judge's
order is considered the final disposition as of the date of
110
COLUMBIA MANUFACTURING CORPORATION
issuance, the Respondent's application was still timely
filed under the provisions of Section 102.114(a) of the
Board's Rules. That section reads:
Sec. 102.114 Time; additional time after service by
mail or by telegraph.--(a) In computing any period of
time prescribed or allowed by these rules, the day
of the act, event, or default after which the desig-
nated period of time begins to run is not to be in-
cluded. The last day of the period so computed is to
be included, unless it is a Sunday or a legal holiday,
in which event the period runs until the end of the
next day, which is neither a Sunday nor a legal
holiday.... Whenever a party has the right or is
required to do some act or take some proceedings
within a prescribed period after service of a notice
or other paper upon him, and the notice or paper is
served on him by mail or by telegraph, 3 days shall
be added to the prescribed period: Provided, howev-
er, that 3 days shall not be added if any extension of
such time may have been granted.
The Administrative Law Judge's order dismissing the
complaint issued on October 21, 1981. Under the compu-
tation prescribed in the Rule, 30 days from then would
be November 20, 1981. The Administrative Law Judge's
order was served by mail. Section 102.113 of the Board's
Rules provides that the date of service shall be the day
when the matter served is deposited in the U.S. mail.
However that section also states: "In computing the time
from such date, the provisions in Section 102.114 apply."
Section 102.114(a) specifically provides that when a
party is served by mail, 3 days shall be added to the pre-
scribed period to respond. Three days from November
20, 1981, was November 23, and that was the date upon
which the application was filed with the Board.
Section 102.114(b) of the Board's Rules reads:
(b) When the act of any of these rules require the
filing of a motion, brief, exception, or other paper in
any proceeding, such document must be received
by the Board or the officer or agent designated to
receive such matter before the close of business of
the last day of the time limit, if any, for such filing
or extension of time that may have been granted.
That section must be read in conjunction with Section
102.114(a). Section 102.114(b) states that such matters as
an application must be received by the Board before the
close of business of the last day of the time limit. How-
ever in computing the time limit Section 102.114(a) is ap-
plicable and that section allows 3 extra days because of
the mailing.
Section 102.114(a) applies to situations where a pre-
scribed period begins after service of a notice or other
paper. An argument could be made that there is no pro-
vision in the Equal Access to Justice Act for notice of a
final disposition and that there is simply a flat require-
ment that an application be filed within 30 days of the
final adjudication regardless of service of notice. Under
such an interpretation a respondent could be barred from
applying for attorney fees even if the Board forgot to
send him a copy of the final adjudication and he did not
learn of it until after the 30 days expired. There is no
way to fully separate the concept of notice from the for-
feiture of a right to file an application under the Equal
Access to Justice Act without running into grave consti-
tutional due process problem. When Board Rule
102.148(a) is considered in the context of Board Rules
102.113(a) and 102.114(a), it appears that a balance is
struck between filing and notice requirements. Section
102.148(a) provides that the application must be filed no
later than 30 days after the entry of the Board's final
order. Section 102.113(a) provides that the Board's order
shall be considered served as of the date that it is depos-
ited in the mail. Section 102.114(a) provides that mail de-
livery gives 3 extra days for the party receiving the mail
to take action.
In sum I find that Respondent's application was timely
filed.
B. The Question of Affiliates and Subsidiaries
The General Counsel contends that there is insufficient
information pertaining to "affiliates or subsidiaries" of
the Applicant to determine whether the Applicant is an
eligible party under the EAJA.
Section 504(b)(1)(B) of the EAJA excludes from cover-
age3 any association or organization whose net worth ex-
ceeded $5 million or whose employee complement ex-
ceeded $500 at the time the adversary adjudication was
initiated. Section 102.143(g) of the Board's Rules pro-
vides that the net worth and the number of employees of
the Applicant and all of its affiliates shall be aggregated
to determine eligibility. Section 102.147(f) of the Board's
Rules states that the Applicant must provide a detailed
exhibit showing the net worth of the Applicant and any
affiliates.
The application states that "there were approximately
120 management, office clerical, production and mainte-
nance employees at the Employer's two facilities located
in Gardena, California."
There is some question whether the Board's Rules
simply require an applicant to affirmatively state its affili-
ates or subsidiaries if it has any or whether a negative
statement is required. However, in its brief the General
Counsel requests me to direct the Applicant to furnish a
verified statement bearing on affiliation. The Applicant
has already done so and therefore there is no need for
such an order. In a statement given under penalty of per-
jury attached to the Applicant's answer, an officer of the
Applicant states that the Applicant has two facilities in
Gardena, California, and no other affiliates or subsidiar-
ies. If the application in that regard were ambiguous, that
ambiguity has now been corrected and that is no show-
ing of prejudice to the General Counsel.
C. The Question of Substantial Justification
Section 504(aXl) of the EAJA provides that an award
shall be made unless "the position of the agency as a
party to the proceeding was substantially justified or ...
special circumstances make an award unjust." Some
guidance with regard to the application of that language
I With exceptions not applicable here.
11
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is given in Senate's Report 96-263 at pages 14 and 15
which states:
Under section 504(a), a party other than the
United States who prevails in an agency adjudica-
tion is entitled to reasonable fees and other expenses
unless the agency finds the position of the agency as
a party to the proceedings was substantially justified
or that special circumstances make an award unjust.
The language used in this section is identical to lan-
guage presently found in Rule 37, Federal Rules of
Civil Procedure. Its effect is to place the burden on
the government to make a positive showing that its
position and actions during the course of the pro-
ceedings were substantially justified or that some
other circumstances makes an award unjust. The
test of whether or not a government action is sub-
stantially justified is essentially one of reasonable-
ness. In order to defeat an award, the government
must show that its case had a reasonable basis in
law and fact. Absent such a showing, fees should be
awarded. The section identifies one circumstance
which may defeat or reduce an award-the actions
of the prevailing party in unreasonably protracting
the resolution of the controversy. The section fur-
ther requires that the fee determination include spe-
cific written findings and conclusions which will be
made a part of the record and which may be sub-
ject to judicial review under section 504(c).
Alternative standards were considered. For ex-
ample, S. 2354, the predecessor to S. 265 in the 95th
Congress, allowed for automatic awards to prevail-
ing parties. This mandatory award was rejected be-
cause it did not account for the reasonable and le-
gitimate exercise of governmental functions and
thus might have a chilling effect on proper govern-
ment enforcement efforts. A purely discretionary
standard such as may be found in some existing fed-
eral fee-shifting statutes [See, e.g., 15 U.S.C. 2059
(e)(4); 33 U.S.C. 1365(d); 42 U.S.C. 1937(e)] was
also considered. A discretionary standard, however,
fails to account for the natural reluctance of agen-
cies to award fees against themselves and also offers
little direction to the exercise of agency discretion.
The Department of Justice proposed standard, on
the other hand, gives some definition and some
guidance but is unnecessarily restrictive. Under the
Department's proposal, fees would be awarded only
where the government action was "arbitrary, frivo-
lous, unreasonable, or groundless, or the United
States continued to litigate after it clearly became
so." [See Christiansburg Garment Co. v. E.E.O.C.,
434 U.S. 412, 417 (1978).] In order to recover fees
under this standard, a party must first prevail and
then must marshal the facts to prove that the gov-
ernment action was arbitrary or frivolous. Placing
this heavy burden on the prevailing party makes
awards difficult to obtain, particularly in agency
proceedings. And where fees are so difficult to re-
cover, the deterrent effect created by the cost of
vindicating rights vis-a-vis the Government would
not be lessened.
The standard and burden of proof adopted in S.
265 represents an acceptable middle ground be-
tween an automatic award of fees and the restric-
tive standard proposed by the Department of Jus-
tice. It presses the agency to address the problems
of abusive and harassing regulatory practices. It is
intended to caution agencies to carefully evaluate
their cases and not to pursue those which are weak
or tenuous. At the same time, the language of the
section protects the Government when its case,
though not prevailing, has a reasonable basis in law
and fact. Furthermore, it provides a safety valve
where unusual circumstances dictate that the Gov-
ernment should not be held liable, as for example
when the Government is advancing in good faith a
credible, though novel, rule of law.
The fact that the Government lost the case does not
give rise to the presumption that its position was unrea-
sonable.4 However, as stated in the Conference Report
to accompany H.R. 5612, H.R. Rep. No. 96-1434, 96th
Congress 2d Sess:
Certain types of case dispositions may indicate
that the Government action was not substantially
justified. A court should look closely at cases, for
example, where there has been a judgment on the
pleadings or where there is a directed verdict,
where a prior suit on the same claim had been dis-
missed or where there is a substantial difference be-
tween the amount or content of the Government's
original pleadings and the settlement agreed to.
Such cases clearly raise the possibility that the Gov-
ernment was not substantially justified in pursuing
the ligitation ....
In sum the Government has the burden of establishing
that its actions were substantially justified; lack of sub-
stantial justificatinn is not established simply by the Gov-
ernment's loss of the case; such matters as judgment on
the pleadings or, in the context of this case, a successful
motion by the Government to dismiss its own case can
be construed as raising the possibility that the Govern-
ment was not substantially justified in pursuing the litiga-
tion; where the Government's case is weak or tenuous
there is no substantial justification; and where the Gov-
ernment's case is strong both in fact and law but the
Government loses because of adverse credibility or legal
findings there is substantial justification.
The conclusion is inescapable that in the instant situa-
tion the Government's case was weak and tenuous. Both
the General Counsel in his answer and the Applicant in
its reply agree that the Applicant furnished information
to the General Counsel prior to the commencement of
the hearing which indicated that the General Counsel
was relying on at best unreliable and at worst perjured
testimony.5 Subsequent events indicated that the infor-
* House Report No. 96-1005 (Part 1), 96th Cong. 2d Sess.
5 There is no implication herein that the General Counsel had anything
to do with the perjury. The assertion is that the General Counsel was
misled by the perjury of others.
112
COLUMBIA MANUFACTURING CORPORATION
mation furnished by the Applicant was reliable. At the
opening of the hearing the General Counsel moved to
dismiss those allegations of the complaint that alleged
that two of the discriminatees, Amador and Nuno, were
discharged in violation of the Act. That motion was
granted. The General Counsel continued with the litiga-
tion concerning the discharge of Jiminez and Herrera in
the face of information given to it by the Applicant that
those alleged discriminatees were not worthy of belief.
The hearing ended on August 5 and was thereafter re-
opened to allow the parties an opportunity to produce
evidence relating to the possibility of abuse of the
Board's process or false testimony. Prior to the resched-
uled hearing date the General Counsel continued its in-
vestigation and apparently concluded that the informa-
tion given by the Applicant was accurate because he
moved to dismiss his own complaint on the grounds that
it was without merit and should not be pursued. That po-
sition finds substantial support in the record of the case.
The motion was granted. One can only speculate wheth-
er or not a more thorough investigation before issuance
of the complaint would have resulted in a dismissal of
the charge rather than the issuance of the complaint, but
it is over-generous to describe the General Counsel's
case as weak or tenuous. It actually fell apart. Under
these circumstances I find that the General Counsel's
case did not have a reasonable basis in law and fact.
D. Fees and Expenses Incurred Prior to the Effective
Date of the EAJA
The EAJA became effective on October 1, 1981. Sec-
tion 102.143 of the Board's Rules and Regulations defines
"adversary adjudication" for the purpose of eligibility
under the EAJA as "unfair labor practice proceedings
pending before the Board on complaint . . . at any time
between October 1, 1981, and September 30, 1984." This
case was pending before the Board between those two
dates. The case is therefore one that is subject to the
EAJA. Section 504(a) of the Act provides for fees and
expenses: "in connection with that proceeding .... "
Section 102.144(a) of the Board's Rules speaks of "fees
and expenses incurred in connection with an adversary
adjudication." The fees and expenses that were incurred
prior to October 1, 1981, were in connection with the
Applicant's case and the case comes within the ambit of
the EAJA because it was pending on October 1, 1981. In
such circumstances the fees and expenses incurred prior
to October 1, 1981, are recoverable. Heydt v. Citizens
State Bank, 668 F.2d 444 (8th Cir. 1982); see also Bradley
v. The School Board of Richmond, 416 U.S. 696 (1974).6
e In Photo Data. Inc v. Sawyer, 533 F.Supp. 348 (U.SD.C. 1982), a
cue arising under the EAJA, the court held:
The Act explicitly applies to cases pending on October 1, 1981,
and nothing in the legislative history suggests that it should be inter-
preted to apply only to that part of the case pending on October I,
1981 that occurs on or after that date. Moreover, construing the Act
to bifurcate cases on October I, 1981 would eschew the purpose of
the Act to provide financial assistance to those litigants who would
not ordinarily be able to contest unreasonable government action, as
it would diminish their recovery and thereby remove the incentive
to sue. Without express direction from the Congress this Court will
not infer such an incongruous intent.
E. Fees and Expenses Incurred Prior to Issuance of
the Complaint
The EAJA grants relief in cases involving adversary
adjudications. However as is set forth above, that Act
also allows fees and other expenses incurred "in connec-
tion with that proceeding." As the General Counsel cor-
rectly points out, a precomplaint investigation does not
constitute an adversary adjudication. The General Coun-
sel is obligated by law to undertake an investigation
when a charge is filed and has no discretion in that
regard. However, where the precomplaint investigation
involves fees and expenses to a charged party and that
investigation leads to the issuance of a complaint and an
adversary adjudication, the precomplaint costs and ex-
penses are incurred in connection with the complaint
case and are directly related to that case. Such fees and
expenses are therefore compensable under the EAJA. In
the instant case the charge and amended charge alleged
that 10 employees were discharged in violation of the
Act. The General Counsel's investigation resulted in a
dismissal of the charge allegations relating to six of those
dischargees. With regard to those six, the Government
took no action other than to investigate and refuse to
issue a complaint. Any costs and expenses incurred by
the Applicant with regard to those six employees are
therefore not recoverable under the EAJA. The precom-
plaint fees and expenses incurred with regard to the
other four employees who were named in the complaint
are compensable under the EAJA.
The itemization of attorneys' services rendered and
fees charged annexed to the application indicates that at-
torney Alfred Landegger spent 18-1/2 hours and that at-
torney Stefan Mason spent 3 hours on the case prior to
issuance of the complaint on November 6, 1980. There is
no indication in that itemization as to what part of the
work was spent in matters relating to the four employees
who were ultimately named in the complaint as discri-
minatees and what part on the six employees who were
not named. In the absence of such itemization I will
assume that the time was equally devoted to the 10 indi-
viduals named in ihe charge. As the work attributable to
the six employees who were not named in the complaint
is not compensable, I shall disallow six-tenths of the
hours attributed to precomplaint fees. Those fees were
for 18-1/2 and 3 or 21.5 hours and six-tenths of that
figure is 12.9 hours.
F. Collateral Proceedings
The Applicant's itemization of attorneys' fees rendered
and fees charged indicates that attorney Alfred Landeg-
ger spent a total of 173.75 hours spread over 110 differ-
ent days between September 24, 1980, and November 20,
1981. Each date is separately listed and details are set
forth as to the work done on that particular day. The
itemization indicates that on 25 of those days some time
was spent on matters relating to unemployment insur-
ance, the employment development department, and ar-
bitration. On most of those days there are entries for
those matters and for the unfair labor practice case, and
there is no separation with regard to the time spent on
one or the other. The total amount of time spent on
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those days was 22 hours. Three-quarters of an hour out
of those 22 was spent prior to the issuance of the com-
plaint and one-half of that time has already been disal-
lowed. The total amount of time spent will therefore be
considered as 21.6 hours. The Applicant contends the
hours spent on such matters as unemployment insurance
and arbitration were in connection with and necessary to
the unfair labor practice proceeding. Those matters
might indeed be useful to the Applicant in connection
with the unfair labor practice proceeding but they were
in themselves independent of the unfair labor practice
proceeding and in all likelihood would have been in-
curred whether or not a complaint had issued. As there
was some interplay between those matters and the unfair
labor practice proceedings and as there was also some
work done on the unfair labor practice case on most of
those dates in question, I will disallow only half of the
21.6 hours. That comes to 10.8 hours.
G. The Dismissal of the Allegations Relating to
Amador and Nuno at the Commencement of the
Hearing
As is set forth above, at the commencement of the
hearing on August 4, 1981, the General Counsel moved
to dismiss those portions of the complaint relating to
Amador and Nuno. That motion was granted. In its
answer the General Counsel takes the position that that
portion of the case was resolved prior to October 1,
1981, and was therefore not pending as an "adversary
adjudication" as of the effective date of the Act.
The complaint was pending before me as of October 1,
1981. Prior to that time I had granted a motion to dis-
miss part of the complaint but the order granting that
motion was not a final order of the Board. The allega-
tions in the complaint concerning Amador and Nuno
were not completely put at rest. My order dismissing
that portion of the complaint was still subject to the pos-
sibility of review by the Board. In the ordinary course of
events I would have issued an administrative law judge's
Decision and any party, including the charging party,
would then have had 20 days to file exceptions. Section
102.46 of the Board's Rules provides for such exceptions
"to the Administrative Law Judge's Decision or to any
other part of the record or proceeding (including rulings
upon all motions or objections) .... " I believe that the
work done by the Applicant's counsel relating to
Amador and Nuno was sufficiently connected t6 a
matter that was pending on October 1, 1981, to be com-
pensable under the EAJA.
H. Fees and Expenses Incurred in the EAJA
Proceeding
The Applicant seeks an award for time spent in the
preparation and processing of the application under the
EAJA. Such fees are clearly in connection with the case
that was pending on October 1, 1981.
In analogous cases arising under the Civil Rights Act,
United States Courts of Appeals have held that such fees
are compensable. Manhart v. City of Los Angeles, 652
F.2d 904, 909 (9th Cir. 1981); Love v. Mayor, City of
Cheyenne, 620 F.2d 235, 237 (10th Cir. 1980); Weisen-
berger v. Huecker, 593 F.2d 49, 53-54 (6th Cir. 1979),
cert. denied 444 U.S. 880 (1979); Souza v. Southworth,
564 F.2d 609, 614 (Ist Cir. 1977). In Manhart v. City of
Los Angeles, supra, the court held:
Finally, plaintiffs have requested attorneys' fees
for time spent litigating the fees issue itself in dis-
trict court and on appeal. They are entitled to such
an award. Williams v. Alioto, 625 F.2d at 850; Ro-
senfeld v. Southern Pacific Co., 519 F.2d at 530;
Johnson v. Mississippi, 606 F.2d 635, 638-39 (5th
Cir. 1979). It would be inconsistent to dilute an
award of fees by refusing to compensate an attorney
for time spent to establish a reasonable fee. Lund v.
Affleck, 587 F.2d 75, 77 (Ist Cir. 1978).
The same logic applies in the instant case and I therefore
find that the fees and expenses related to the drafting and
processing of the application are recoverable.
I. The Reasonableness of the Fees and Expenses
The itemization of attorneys' services rendered and
fees charged annexed to the application consists of a de-
tailed compilation of the work performed by the Appli-
cant's attorneys on specified dates and the number of
hours spent performing that work. It listed 173.75 hours
for attorney Alfred Landegger of which 23.7 hours were
disallowed as is set forth above. That leaves 150.05
hours. Also claimed are 54.75 hours for attorney Stefan
Mason;7 .25 hours for attorney Belle C. Mason; and
12.75 hours for attorney Harold Knee. The total is 217.8
hours. The application also itemizes expenses which
come to $1,439.05.
The application seeks $100 per hour for Landegger;
$135 per hour from September 1980 to August 1981 and
$145 per hour thereafter for Stefan Mason; $100 per hour
for Belle Mason; and $110 per hour for Knee. However,
the EAJA provides that fees may not be awarded in
excess of $75 per hour unless the agency determines by
regulation that a higher fee is justified. s The Applicant
has petitioned the Board to increase the maximum rate
for attorneys' fees and that petition has been retained by
the Board for appropriate action. The petition is not
before me and I am limited to the $75 maximum.
Except for the assertions, that fees and expenses are
not compensable, that were raised in connection with the
matters set forth in the sections above, the General
Counsel does not contend in his answer that the itemized
expenses were unreasonable. Expenses in the amount of
$1,439.05 are therefore awarded.
Much has been written with regard to the criteria used
in setting a reasonable hourly rate. See, for example, the
12 criteria discussed in Kerr v. Screen Extras Guild, Inc.,
526 F.2d 67, 70 (9th Cir. 1975), cert. denied 425 U.S. 951
(1976).9 Those cases may be considered by the Board in
7 In its application the Applicant totals the hours for Mason at 54.75,
even though the itemization lists 60 hours. The General Counsel has
relied on the 54.75 figure in its answer and I shall also use that figure.
8 See Sec. 102.145 of the Board's Rules.
9 See also National Association of Concerned Veterans v. Secretary of De-
fense, (D.C. Civil Action No. 79-0211) (D.C. Cir. April 23, 1982).
114
COLUMBIA MANUFACTURING CORPORATION
the petition to grant more than the $75 per hour. How-
ever, I am limited to the $75-per-hour figure. Section
102.145(a) of the Board's Rules provides that: "Awards
will be based on rates customarily charged by persons
engaged in the business of acting as attorneys .... "
The General Counsel does not assert that $75 an hour is
an unreasonable hourly rate. In its answer the General
Counsel argues that if any award is granted the number
of hours claimed should be reduced and the remaining
hours should be multiplied by the statutory maximum
rate of $75 per hour. I find that $75 an hour is not unrea-
sonable. A more serious question is raised concerning the
number of hours that are compensable.
Section 102.145(cX3) of the Board's Rules provides
that in determining the reasonableness of the fees sought
consideration should be given to the time actually spent
in the representation of the Applicant. The General
Counsel does not contend that there is any discrepancy
between the time actually spent and the time as itemized
in the application. Section 102.145(c)(4) of the Board's
Rules provides that consideration should be given to
"the time reasonably spent in the light of the difficulty or
complexity of the issues in the adversary adjudication
proceeding." The General Counsel does contend that the
Applicant's attorneys spent an unreasonable amount of
time on the case and specifically asserts that there is no
apparent reason why more than one attorney had to
work on the case. The General Counsel requests that the
54.75 hours of work attributed to Stefan Mason be disal-
lowed.
This was not an unusually complicated case. Because it
was truncated by the General Counsel's motion to dis-
miss his own complaint there were only 2 days of actual
hearing. It was apparent from observing Landegger's
conduct during the hearing that he is a fully competent
attorney. There is little doubt that he could have ade-
quately represented his client without the assistance of
the other members of his firm. It was also apparent that
he is extremely zealous and conscientious with regard to
the interests of his client. In the particular circumstances
of this case I am unprepared to find that he was over
zealous or unreasonable in securing the limited assistance
of other members of his firm. It is very likely that the
diligence of the Applicant's counsel prevented not only a
substantial miscarriage of justice but also abuse of the
Board's process.'
In sum I find that the Applicant is the prevailing party
and meets the eligibility requirements of the EAJA; that
the General Counsel's position was not substantially jus-
tified and no special circumstances make an award
unjust; and that the Applicant is entitled to a fee award
based on 217.8 hours at $75 an hour which equals
$16,335 plus an expense award of $1,439.05, for a total
award of S17,774.05.
Upon the foregoing findings and conclusions, and the
entire record, and pursuant to Section 102.153 of the
Board's Rules, I hereby issue the following recommend-
ed:
ORDER 1
The application of Columbia Manufacturing Corpora-
tion for attorneys' fees and expenses under the Equal
Access to Justice Act is hereby granted to the extent
that the Applicant is awarded $17,774.05.
1o In his answer, the General Counsel notes that Landegger spent over
20 hours and Mason spent over 9 hours in preparing and drafting the
EAJA Application. The General Counsel asserts that that was an unrea-
sonable period of time for which to be reimbursed. After reviewing the
documents in the record I do not find that an unreasonable amount of
time was spent on the application.
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
115