Dame & Sons Construction Co.

National Labor Relations Board - Board Decisions

Feb 13, 1989

292 N.L.R.B. 1044 (N.L.R.B. 1989)

1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dame & Sons Construction Co. and Local 978,
United Brotherhood of Carpenters and Joiners
of America , AFL-CIO. Cases 17-CA-13613(E)
and 17-CA-13678(E)
February 13, 1989
SUPPLEMENTAL DECISION AND
ORDER.
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 20, 1987, Local 978, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO filed an unfair labor practice charge as
well as a representation petition . On December 30,
1987, the Regional Director issued a complaint and
notice of hearing . Pursuant to a request to proceed
and a Stipulated Election Agreement , an election
was scheduled for and held January 4, 1988. There-
after , the Union filed timely objections to the elec-
tion , and on January 13, 1988, the Union filed an
additional unfair labor practice charge . On Febru-
ary 4, 1988, the Regional Director issued an order
consolidating cases , consolidated complaint and
notice of hearing . On February 12, 1988 , the Re-
gional Director issued an order consolidating the C
case with the R case . The consolidated complaint
alleged that the Applicant had unlawfully interro-
gated an employee concerning his union member-
ship, promised an employee benefits, including per-
manent employment , if the employee refrained
from engaging in activity in support of the Union,
threatened an employee with layoff or discharge if
the employee continued activities in support of the
Union, and laid off Mike Andrews because he had
joined the Union.
On March 18, 1988 , the parties entered into an
agreement approved by the .Acting Regional Direc-
tor whereby the January 1988 representation elec-
tion was set aside in favor of a rerun election and
the remaining disputes were submitted to the griev-
ance-arbitration procedure of the applicable con-
tract. On March 21 the Acting Regional Director
issued an order withdrawing the complaint and
notice of hearing on the grounds that the matters in
dispute might be resolved through the grievance-
arbitration procedure of the collective-bargaining
agreement . On March 24 the Acting Regional Di-
rector notified the parties that the withdrawal of
complaint was based on the determination that fur-
ther proceedings on the charges should be adminis-
tratively deferred for arbitration . However , this did
not preclude subsequent reissuance of the com-
plaint should circumstances so warrant.
On May 24, 1988, the Applicant and the Union
entered into a non-Board agreement . Pursuant to
this agreement the Applicant paid Andrews $800
and the Union withdrew the representation petition
and the unfair labor practice charges, and abrogat-
ed reinstatement claims as well as claims to a col-
lective-bargaining relationship with the Applicant
and any claims concerning the preceding events.
On May 25 the Regional Director notified the
parties that the charges had been withdrawn with
approval. On June 23, 1988, the Applicant filed an
application for award of fees under the Equal
Access to Justice Act, Pub. L. 96-481, 94 Stat.
2325 (the EAJA), and Section 102.143 of the
Board's Rules and Regulations.
On July 11, 1988, the Board issued a Notice to
Show Cause why the EAJA application was not
untimely and the Applicant is not eligible to apply
for an award of fees and expenses because the case
was settled.
On July 14 the General Counsel moved to dis-
miss the application on the following grounds: (1)
it was untimely pursuant to Sections 102.48(a) and
(d) of the Board's Rules and Regulations;' (2) the
Applicant's entry into the non-Board settlement
agreement precluded its being a prevailing party in
the dispute concerning which the General Counsel
had been substantially justified in issuing com-
plaint;2 and (3) the application failed to substantiate
adequately eligibility requirements and legal fees
and expenses.
The Applicant responded that the application
was timely filed within 30 days of the Regional Di-
rector's notification of withdrawal of the charges
and that there was no substantial justification for is-
suing complaint. Furthermore, the Applicant
argued that it prevailed in the non-Board settle-
ment because the payment was merely the quid pro
quo for the withdrawal of the charges.
The General Counsel responded reiterating her
earlier position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
' Sec. 102.148(a) of the Board's Rules and Regulations states:
An [EAJA] application may be filed after entry of the final order
establishing that the applicant has prevailed in an adversary adjudi-
cation proceeding or in a significant and discreet substantive portion
of that proceeding , but in no case later than 30 days after the entry
of the Board 's final order in that proceeding.
Sec. 102 . 148(d) further specifies as follows:
For purposes of this section the withdrawal of a complaint by a Re-
gional Director . . . shall be treated as a final order ... .
2 See 5 U .S.C. § 504(a)(1) of the EAJA , which provides:
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 . . . position of the agency as party to the
proceeding was substantially justified or that special circumstances
make an award unjust.
292 NLRB No. 118
DAME & SONS CONSTRUCTION
The Board has considered the General Counsel's
and the Applicant's responses to the Notice to
Show Cause and has decided to grant the General
Counsel's motion to dismiss the Applicant's EAJA
application 3
We cannot find that the May 24 non-Board set-
tlement agreement was favorable to the Applicant
We cannot know what the parties sought and their
relative strengths and weaknesses when they finally
sat down to negotiate and resolve this dispute The
agreement represents a compromise in which there
is something for everyone The charges were with
drawn as an element of a compromise, not as a uni-
lateral release of the Applicant from all obligations
s In the circumstances of this case we find that the withdrawal of
complaint was not a final order terminating the proceeding We note that
the withdrawal and the related explication letter notified the parties that
the charges were merely in abeyance pending grievance arbitration pro
cedures that the matters in dispute were yet to be resolved and that the
complaint might subsequently reissue Rather the Regional Directors
May 25 letter notifying the parties of the approved withdrawal of the
charges signified the resolution of the dispute and the termination of the
proceeding Accordingly the application must be regarded as timely
1045
claimed in the complaint The Applicant incurred
financial responsibilities that it would not have had
if the complaint had been dismissed Furthermore,
the settlement precludes finding that either the
Government or the Applicant won or lost Rather,
"neither won nor lost , but clearly a prime purpose
of the Act, the promotion of collective bargaining,
was well served "4 Accordingly, the Applicant is
not a prevailing party within the meaning of the
EAJA 5
ORDER
It is ordered that the application of the Appli-
cant Dame & Sons Construction Co, Phillipsburg,
Missouri, for an award under the Equal Access to
Justice Act is dismissed
4 Carthage Heating Co 273 NLRB 120 123 (1984) Compare Shrews
bury Motors 281 NLRB 486 (1986)
6 Because we find the Applicant was not the prevailing party we need
not reach the remaining grounds of the General Counsel s motion to dis
miss