Electric By Miller, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1073 (N.L.R.B. 2005)

ELECTRIC BY MILLER, INC.
345 NLRB No. 84
1073
Electric By Miller, Inc. and International Brother-
hood of Electrical Workers, Local 584, Affiliated
with International Brotherhood of Electrical
Workers, AFL–CIO. Case 17–CA–22667(E)
September 30, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 2, 2005, Administrative Law Judge George
Carson II issued the attached supplemental decision. The
Applicant filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the supplemental decision and the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge.
Charles T. Hoskin Jr., Esq., for the General Counsel.
Donald W. Jones, Esq., for the Respondent/Applicant.
SUPPLEMENTAL DECISION
EQUAL ACCESS TO JUSTICE ACT
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. Pursuant to
the Equal Access to Justice Act (EAJA), Pub. L. 96-481, 94
Stat. 2325, 5 U.S.C. § 504, and Section 102.143 of the Board’s
Rules and Regulations, the Respondent timely filed an applica-
tion for fees and other expenses in this matter on March 17,
2005, accompanied by a motion to withhold confidential finan-
cial information from public disclosure.1 On March 22, 2005,
the Board issued a corrected Order referring the application to
me for appropriate action. On April 15, 2005, counsel for the
General Counsel filed a motion to dismiss in which he argues
that the Respondent is not entitled to an award regarding com-
plaint allegations that were withdrawn by an amendment to the
complaint and that the General Counsel’s position regarding the
remaining allegations was substantially justified. On April 22,
2005, the Respondent filed a corrected opposition to the motion
to dismiss.

1 In adopting the judge’s denial of the application for attorney’s fees
and expenses with regard to the dismissed allegations, we find, for the
reasons set forth by the judge, that even assuming the dismissed allega-
tions were a substantial and discrete part of the underlying case, those
allegations were substantially justified.
1 The confidential financial information is sealed and attached to the
Respondent’s application as Exh. A. An itemization of fees and ex-
penses is attached as Exh. B. The Respondent has amended its fee
request to conform to the maximum $125 permitted by the EAJA, but
which exceeds the $75 per hour prescribed by Sec. 102.145(b) of the
Board’s Rules and Regulations.
On May 2, 2005, I issued an Order to Show Cause as to why
the motion to dismiss should not be denied for failure to present
evidence in support of the assertions that the General Counsel’s
position was substantially justified with regard to the allega-
tions that were withdrawn prior to hearing. On May 10, 2005,
the General Counsel presented affidavits and a letter from al-
leged discriminatee Travis Jelik and argued that the affidavits
established substantial justification for the position of the Gen-
eral Counsel until receipt of the letter dated July 25, 2004, in
which Jelik stated that he would not cooperate in the prosecu-
tion of the case. On May 17, 2005, the Respondent filed a reply
to the foregoing submission.
The EAJA provides that attorney fees may be awarded to
eligible parties who prevail in cases tried before administrative
agencies unless the Government establishes that its litigation
position was “substantially justified.” The Supreme Court, in
Pierce v. Underwood, 487 U.S. 552 (1988), stated that “sub-
stantially justified” means “justified to a degree that could sat-
isfy a reasonable person” or as having a “reasonable basis both
in fact and law.” The Respondent contends in its application, in
its opposition to the motion to dismiss, and in its reply to the
submission of the General Counsel pursuant to the Order to
Show Cause that the General Counsel’s position in Electric by
Miller, 344 NLRB No. 20 (2005), was not substantially justi-
fied with regard to the allegations that were amended out of the
complaint prior to the hearing and the allegations of the com-
plaint that I recommended, and the Board agreed, should be
dismissed.
I. BACKGROUND
Before addressing the substantial justification issue, a brief
summary of the underlying proceeding is appropriate. Follow-
ing receipt of a letter dated July 25, 2004, from alleged dis-
criminatee Travis Jelik in which he stated that he would not
testify, the General Counsel, on August 13, 2004, a month and
a day prior to the commencement of the hearing, amended the
complaint by withdrawing three 8(a)(1) allegations and para-
graph 7 of the complaint which alleged that Jelik had been con-
structively discharged on February 13, 2004, in violation of
Section 8(a)(3) of the Act. The remaining allegations were
litigated on September 14, 2004.
The Company, a nonunion contractor, is owned by President
Kathy Miller. On December 13, 2003, Miller hired Mike
Harrell as operations manager. John R. Carter sought and ob-
tained permission from Local 584, International Brotherhood of
Electrical Workers, the Union, to seek work with this nonunion
Company, and he was hired on December 31, 2003. The al-
leged unfair labor practices that were litigated all occurred dur-
ing the last week of Carter’s employment, which ended January
16, 2004, shortly after Carter put the Union in touch with the
apprentices that were employed by the Respondent. On January
16, 2004, Miller met with Union Organizer Roger Canada. I
found that, although the Union did have an organizational ob-
jective, Canada did not demand immediate recognition nor did
he request that Miller sign anything on January 16. Id., JD slip
op. at 4. I found, as alleged in the complaint, that the Respon-
dent, by Miller, violated the Act by threatening closure of the
business if the employees selected the Union as their collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
bargaining representative, falsely announcing closure of the
business in order to discharge an employee, Carter, and dis-
charging Carter because of his union activities. I found that the
allegation that selection of the Union as the employees’ collec-
tive-bargaining representative would be futile was subsumed in
the more serious hallmark violation of the threat of closure and
that an allegation of interrogation should be dismissed because,
under the circumstances, it was not coercive. I recommended,
and the Board agreed, that subparagraphs 6(a) and (b) of the
complaint alleging the refusal to hire Brent Sloan and the revo-
cation of employee Carter’s cellular telephone privileges be
dismissed. Id., JD slip op. at 5–6.
II. DISCUSSION
A. The Withdrawn Allegations
The Board considers a respondent to be a prevailing party
when complaint allegations are withdrawn. See Shrewsbury
Motors, 281 NLRB 486, 487 (1986), Dake Structural & Rebar
Co., 293 NLRB 649, 651 fn. 6 (1989). Nevertheless, no fees
and expenses are allowed when the General Counsel’s initial
position is substantially justified and the General Counsel acts
“with due diligence to withdraw the complaint” at the point that
further proceedings are no longer justified. Best Bread Co., 276
NLRB 1298 fn. 1 (1985). In B. J. Heating & Air, Inc., 273
NLRB 329, 332 (1984), complaint allegations were withdrawn
when witnesses failed to appear at trial. The Board held that the
position of the General Counsel was substantially justified up
until that point.
With regard to the withdrawal of the 8(a)(3) allegation that
employee Travis Jelik was constructively discharged and
8(a)(1) allegations relating to solicitation of information to
justify a discriminatory termination, solicitation to revoke un-
ion authorization cards, and instruction to provide false testi-
mony to the Board, the General Counsel relied upon an affida-
vit signed by Jelik on April 8, 2004. In a prior affidavit taken
on February 2, and signed on February 3, 2004, in Case 17–
CB–5911, Jelik had stated that he and the other apprentice
asked Owner Kathy Miller “if she would type . . . letters” to
the Union stating that they “wanted no part of the Union.” In
his April 8, 2004 affidavit Jelik stated that Miller was present
when he was giving the February affidavit and that he “did not
feel I could be completely truthful.” In the April 8, 2004 affida-
vit Jelik states that he did not ask Miller to prepare a request to
withdraw his union authorization card, rather she “typed the
letter and brought it to me to sign.” The letter requested the
Union to “disregard the card I signed.” Jelik’s April 8, 2004
affidavit also stated that Owner Kathy Miller told him that “she
fired Harrell and Carter because they supported the Union” and
“had told them she was going to close the business . . . [but] she
was not going to.” She asked Jelik “if I had any more dirt on
them [Harrell and Carter] so she could have other excuses for
firing them.” In late February 2004, after he had quit, the affi-
davit reports that Miller informed Jelik that someone from the
Labor Board was going to call him and that he should “continue
to tell them what I had said in my first statement.” Jelik’s affi-
davit states that he quit on February 13, 2004, because the
Company “was unstable and I did not know if my job would
continue to be there, I had three bosses in the short amount of
time I worked there, and because I felt pressure from Miller to
withdraw my union card and lie to the Labor Board.”
By letter dated July 25, 2004, postmarked on July 29, 2004,
Jelik wrote to the Regional Office stating that he was “not ok
with testifying against Kathy Miller.” He noted that she was
aware that he had a prior criminal record. It concludes with the
statement, “Kathy [Miller] is capable of terrible things, I don’t
want any part of her wrath.”
The Respondent argues that the General Counsel’s position
was not substantially justified citing, among other factors,
Jelik’s admission of a prior conviction. That fact was stated in
the July 25, 2004 letter contemporaneously with his statement
that he was “not ok with testifying against Kathy Miller.” The
Respondent assails the investigation by the Region and asserts
that Owner Miller was not confronted “about the alleged facts
stated in the latest affidavit of Jelik.” Miller was represented by
counsel and the record does not reflect whether Miller was
made available for an affidavit in this case, Case 17–CA–
22667. Miller had, in an affidavit she submitted in Case 17–
CB–5911 dated February 3, 2004, stated that Jelik and the other
apprentice had requested that she type the letter to the Union.
Jelik’s affidavit of April 8, 2004, repudiated his February 3,
2004 affidavit and contradicted Miller’s statement. Thus, a
testimonial credibility conflict existed. When credibility cannot
be determined on the basis of documentary evidence, those
issues must be determined “at a hearing before an administra-
tive law judge.” National Fire Protection, 281 NLRB 624 fn. 1
(1986).
The General Counsel, citing Intercon I (Zescom), 333 NLRB
223 (2001), argues that the allegation of a constructive dis-
charge was substantially justified because Jelik was presented
with a Hobson’s Choice of lying to Board representatives and
disavowing his union activities or being discharged. Although
Jelik stated in the April 8, 2004 affidavit that he “did not feel”
that he could be “completely truthful” when giving his Febru-
ary 3, 2004 affidavit because Miller was present, he does not
claim that Miller, prior to his quitting, told him to be untruthful.
The request that he “continue to tell them what I had said in my
first statement” occurred after he quit. Jelik’s April 8, 2004
affidavit does cite affirmative acts, Miller’s admission to him
that she terminated Harrell and Carter because they supported
the Union and her presentation to him of the letter requesting
the Union to disregard the card that he signed, that, if credited,
objectively establish that support of the Union was incompati-
ble with continued employment by the Respondent.
The Respondent, citing the dissent of Member Hurtgen in In-
tercon I (Zescom), argues that Jelik was not given a “clear and
unequivocal presentation of a choice” to abandon the Union or
abandon his job. The Board majority in that case, Chairman
Truesdale and Member Liebman, pointed out that “[a] construc-
tive discharge is not a discharge at all but a quit which the
Board treats as a discharge because of the circumstances which
surround it. Such situations may arise when an employer con-
fronts an employee with the Hobson’s Choice of either continu-
ing to work or foregoing rights protected by the Act.” Ibid. The
Board majority acknowledged that, although the respondent
“did not literally state that . . . [the employee] had to abandon
her support for the Union as a condition of her continued em-
ELECTRIC BY MILLER, INC. 1075
ployment, . . . the Respondent’s message was unmistakable.”
Id at 224. The evidence in the possession of the General Coun-
sel herein was consistent with a similar unmistakable message.
Miller had informed Jelik that she had fired Harrell and Carter
because they supported the Union by falsely telling them that
she was closing the Company. She presented him with a letter
which requested that the Union “disregard the card I signed.”
Jelik signed the letter that Miller presented him. The facts in the
possession of the General Counsel established that Jelik was
presented with the Hobson’s Choice of “either continuing to
work or foregoing rights protected by the Act.”
The evidence in the possession of the General Counsel,
Jelik’s affidavit of April 8, 2004, revealed that, although Jelik
initially chose to continue to work when presented the forego-
ing Hobson’s Choice, he quit on February 13, because of the
instability of the Company and because he felt pressure to
withdraw his union card and lie to the Labor Board. It is well
established that an employer violates the Act when it informs
employees that union affiliation is incompatible with their con-
tinued employment. Ryder Truck Rental, 318 NLRB 1092,
1094–1095 (1995). Board precedent establishes that an em-
ployer may not force employees “to work under illegally im-
posed conditions or to quit their employment” and that employ-
ees who quit when confronted with such a requirement have
been constructively discharged. Superior Sprinkler, Inc., 227
NLRB 204, 210 (1976).
The evidence that the General Counsel expected to adduce
provided a reasonable basis for the constructive discharge alle-
gation on both the facts and the law. Although Jelik signed the
letter revoking his union card, he thereafter quit, stating in his
affidavit, among other reasons, pressure to withdraw his union
card. Case law does not establish that an employee who initially
chooses to continue to work when confronted with the
Hobson’s Choice of continuing to work or foregoing rights
protected by the Act but who thereafter chooses to quit is not
protected by the Act. In Indianapolis Mack Sales, the Board
affirmed the administrative law judge’s discussion of substan-
tial justification in which she set out the following language
from Lion Uniform, 285 NLRB 249, 254 fn. 33 (1987):
The General Counsel will be found to have acted with sub-
stantial justification in issuing a complaint whenever the Gen-
eral Counsel possesses, at the time the complaint is issued,
evidence that could reasonably lead an administrative law
judge to find a violation and does not possess evidence that
clearly would defeat an allegation that the charged party has
violated the law.
I find that the General Counsel possessed evidence that could
“reasonably lead” to the finding of a violation at the time it
issued the initial complaint herein. Even if it were to be argued
that an employee’s delayed decision not to give up Section 7
rights was a novel issue, the Board, in Teamsters Local 741
(A.B.F. Freight), 321 NLRB 886, 890 (1996), held:
The General Counsel may carry its burden of proving that its
position was substantially justified “by showing its position
advanced ‘a novel but credible extension or interpretation of
the law.’” Timms v. U.S., 742 F.2d 489, 492 (9th Cir. 1984),
quoting Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th
Cir. 1983).
Thus, even if it were to be determined that Jelik’s quitting af-
ter initially agreeing to forego his right to be involved with the
Union as evidenced by the letter he signed was a novel issue, I
would find that the position of the General Counsel was consis-
tent with a “credible . . . interpretation of the law” and was
substantially justified.
Jelik’s April 8, 2004 affidavit provided substantial justifica-
tion for the 8(a)(1) and (3) allegations that would have been
established if Jelik testified consistently with the statements set
out in that affidavit. Jelik’s July 25 letter is postmarked July 29,
2004. Given his unwillingness to testify, the Region obtained
an amended charge on August 11, 2004, and amended the com-
plaint by withdrawing the allegations that were dependent upon
Jelik’s testimony on August 13, 2004. I find that the General
Counsel acted with due diligence in withdrawing the allega-
tions within 2 weeks of its receipt of notification of Jelik’s un-
willingness to testify and a month and a day prior to the sched-
uled hearing. Best Bread Co., supra at fn. 1.
B. The Dismissed Allegations
Where the General Counsel’s position as a whole is substan-
tially justified at a particular stage of the litigation, no EAJA
fees for that stage will he awarded, even if certain allegations,
considered individually, were not substantially justified at that
stage. The Board’s rules implementing EAJA specify that an
eligible respondent who prevails in a Board proceeding, “or in a
significant and discrete substantive portion of that proceeding,”
may be awarded EAJA fees. NLRB Rules and Regulations
Section 102.143(b). In Glesby Wholesale, Inc., 340 NLRB
1059, 1060 (2003), the Board pointed out:
For the purpose of deciding whether the bringing of a case
was substantially justified, “[w]hile the parties’ postures on
individual matters may be more or less justified, the EAJA . . .
favors treating a case as an inclusive whole rather than as at-
omized line-items.” Commissioner, INS v. Jean, 496 U.S. 154,
161–162 (1990), C. Factotum, Inc., 337 NLRB 1 (2001). Ac-
cordingly, the Board does not award EAJA fees for individual
complaint allegations upon which an applicant prevails.
Rather, the Board determines whether the allegations as “an
inclusive whole” were substantially justified. [Emphasis
added.]
My recommended dismissal of certain discrete allegations
that were litigated, with which the Board concurred, did not
alter my overall finding that the Respondent’s actions were
motivated by its antiunion animus. Nor did my recommended
dismissal of those discrete allegations establish that the position
of the General Counsel was not substantially justified.
Notwithstanding the foregoing, I shall address the Respon-
dent’s arguments concerning the discrete allegations that I dis-
missed and upon which the Respondent asserts the position of
the General Counsel was not substantially justified.
Regarding the interrogation allegation, pursuant to the deci-
sion of the Board in Rossmore House, 269 NLRB 1176 (1984),
a determination of whether an interrogation is coercive must be
made on the case-by-case analysis set out in Blue Flash Ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
press, 109 NLRB 591 (1954). In my decision I noted that on
Thursday, January 15, 2004, the two apprentices were ques-
tioned to obtain clarification regarding what they had actually
signed and that Carter explained that what they had signed
related to the apprenticeship program. I found that, on January
16, 2004, “[w]hatever Canada said prompted her [Miller] to
speak with an apprentice regarding what he had actually
signed,” and that, in that circumstance, the interrogation was
not coercive. Electric by Miller, supra, JD slip op. at 5. The
foregoing finding was predicted upon a full record and credibil-
ity determinations. In the overall context of threats of closure
and an unlawful termination, the foregoing discrete allegation
of interrogation was not significant. Golden Stevedoring Co.,
343 NLRB 115 (2004).
My recommended dismissal of the allegation relating to
revocation of cellular telephone privileges was predicated upon
crediting Miller that the Company required that cellular tele-
phones be left at the facility for charging. Electric by Miller,
supra, JD slip op. at 6. In view of my crediting Miller regarding
company policy, I did not address Carter’s testimony at page 74
of the transcript, lines 17–24, testimony which I did not credit,
that he had the cellular telephone for 10 days.
My dismissal of the allegation that the Respondent discrimi-
natorily refused to hire Brent Sloan was also based upon credi-
bility resolutions and the entire record. In my decision, I dealt
with the failure to hire Sloan in summary fashion because the
record established that there was no work available on the
Thursday and Friday immediately following Sloan’s agreement
to work on an as needed basis if given sufficient notice and
that, following Carter’s discriminatory discharge, the Respon-
dent was unaware of how to contact Sloan. Critical to the fore-
going determination that the Respondent was unaware of how
to contact Sloan was my crediting Miller’s testimony that she
did not recall Sloan’s name and Carter’s admission that he did
not give Miller Sloan’s address or telephone number. Although
Carter testified that he gave Sloan’s name to Miller, she testi-
fied that Carter never stated Sloan’s name. I made no credibility
resolution as to whether Carter had done so, but, crediting
Miller, I found that, even if Carter did name Sloan, “Miller did
not recall Sloan’s name and Carter did not provide Sloan’s
address or telephone [number].” Id., JD slip op. at 2.
If, contrary to her denial, I had found that Miller did recall
the name of Brent Sloan, the factual situation would have been
one in which an employer “knows of potential employees who
are interested in employment and, because of antiunion animus,
prevents those employees from applying for a position.” David
Allen Co., 335 NLRB 783, 785 (2001), citing Service Opera-
tion Systems, 272 NLRB 1033 (1984). Miller’s statement that
she was closing when she ejected Canada from her office on
January 16, made any immediate action by Sloan futile.
Because of the case specific facts relating to Sloan, it was
unnecessary to set out the analytical framework prescribed in
FES, 331 NLRB 9 (2000), i.e. (1) that the respondent had con-
crete plans to hire, (2) that the applicant had the experience
relevant to the position, and (3) that antiunion animus contrib-
uted to the decision not to hire the applicant. The Respondent
did have concrete plans to hire a journeyman on an as needed
basis and Sloan, a journeyman electrician, had the experience
relevant to the position. Miller, who was aware that Carter was
contacting a journeyman electrician, asked Harrell “whether the
electrician [Sloan] was ‘union’” and “Harrell answered that he
did not know, but assumed that he was.” Electric by Miller,
supra, JD slip op. at 2. Miller’s threats and termination of
Carter establish the Respondent’s animus towards union affili-
ated employees. Thus, although not stated in my decision, the
General Counsel established a prima facie case. When the Gen-
eral Counsel establishes a prima facie case, his position is “sub-
stantially justified.” SME Cement, Inc., 267 NLRB 763 fn. 1
(1983). Because I found that the Respondent was unaware of
how to contact Sloan, the failure to hire him could not be at-
tributed to antiunion animus, and the prima facie case was re-
butted. If I had not credited Miller’s testimony that she did not
recall Sloan’s name, the General Counsel’s prima facie case
would not have been rebutted.
There was no work available on Thursday or Friday, January
15 and 16. Electric by Miller, supra, JD slip op. at 5. Thereafter
there were positions that Sloan could have filled. If I had found
that Miller recalled Brent Sloan’s name, there is no reason that
Miller, having continued to operate after making the false rep-
resentation that she was closing the Company, would not have,
in the absence of antiunion animus, sought to contact Sloan
who she knew was willing to work. Carter informed Harrell
that Sloan was willing to work with “as much notice as we
could give him.” Miller, shortly thereafter, told Carter not to
have the electrician “come up the next day.” (Tr. p. 76, LL. 8–
18.) On January 22, 2004, Miller hired Levi Kirkwood and
Leon Jackson. Id., J.D. slip op. at 5. Jackson quit on January
30. (GC Exh. 8.) Another journeyman, Carter, was hired on
February 20, 2004, and he worked until April 1, 2004. (GC
Exh. 10.) Sloan was fully qualified to fill those positions.
The Respondent, in its opposition, argues that I “advised the
General Counsel during the hearing that [the] claim [relating to
Sloan] should be abandoned.” The transcript, at page 186, re-
flects that counsel for the Respondent moved to dismiss the
allegation relating to Sloan, and I informed him, at page 187,
lines 1–6, that I was not going to issue a bench decision and to
brief the issue. Thereafter, at page 188, lines 17 and 18, I ob-
served that the General Counsel “has got a very, very thin reed
upon which to base that allegation.” My assessment of the
strength of the General Counsel’s case did not constitute advice
that the claim should be abandoned. I neither ask nor advise
parties to abandon claims. I grant motions to dismiss when the
General Counsel fails to present a prima facie case. The Gen-
eral Counsel presented a prima facie case. I did not direct the
General Counsel to abandon the allegation. I directed both par-
ties to brief the issue.
III. CONCLUDING FINDINGS
My determination that the Respondent did not violate the Act
with regard to the foregoing discrete allegations that were liti-
gated was made after consideration and analysis of the eviden-
tiary facts and credibility resolutions. The General Counsel was
fully justified in proceeding against this Respondent. My rec-
ommended dismissal of the foregoing allegations was predi-
cated upon the entire record and placing more weight upon
particular portions of testimony, ascribing more significance to
ELECTRIC BY MILLER, INC. 1077
some facts than to others, and drawing inferences from that
testimony and those facts. The Board has held that “[s]uch
weighing of facts and drawing of inferences is not the General
Counsel’s province in the investigative stage of a proceeding.
The weighing of various explanations . . . and the drawing of
inferences from the testimony are, in the first instance, the ex-
clusive province of the judge; they require submission of the
case to the fact finding process of litigation.” Lathers Local 46
(Building Contractors), 289 NLRB 505, 508 (1988).
I concluded that the Respondent violated the Act by its
threats of closure, a hallmark violation of the Act, by falsely
announcing that it had closed in order to effectuate the dis-
charge of employee Carter, and by discharging Carter pursuant
to that false announcement because of his union activities. I did
not find that there was no threat of futility; rather I found that
this allegation was subsumed in the more serious hallmark vio-
lation of the threats of closure. I found that the circumstances in
which the interrogation occurred did not establish that it was
coercive, and, crediting Miller, I found that the instruction that
Carter return his cellular telephone was consistent with Com-
pany policy. I credited Miller’s claim that she did not recall
Brent Sloan’s name which, coupled with Carter’s failure to give
her his address or telephone number, established that the Re-
spondent was unaware of how to contact him, thereby rebutting
the General Counsel’s prima facie case that the Respondent
failed to hire him because of his union affiliation.
The General Counsel’s position with regard to the withdrawn
allegations was substantially justified up until the witness who
would testify in support of those allegations advised that he
would not participate in the proceeding. The General Counsel
acted with due diligence in withdrawing those allegations
within 2 weeks of receiving the foregoing notification from the
uncooperative witness which was more than a month before the
scheduled hearing. The Respondent’s animus was undisguised
and resulted in threats of closure and the termination of Carter
pursuant to the false announcement of closure. I find with re-
gard to the entire case, including the withdrawn allegations, that
the litigation of this case was “substantially justified . . . on the
basis of the administrative record, as a whole . . . .” 5 U.S.C. §
504(a)(1). The General Counsel’s prosecution of this case had a
reasonable basis on the facts and the law. In view of this, I shall
recommend that the General Counsel’s motion to dismiss be
granted and that the Respondent’s application for an award of
fees and expenses be denied.2
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.3
ORDER
The General Counsel’s motion to dismiss Respondent’s ap-
plication for reimbursement of fees and expenses under EAJA
is granted, and the Respondent’s application is denied.

2 In view of the foregoing, it is not necessary to address any other is-
sues, including the amount of any award, the eligibility of the Respon-
dent for an award, and the Respondent’s motion to withhold confiden-
tial financial information. The financial data submitted by the Respon-
dent shall remain under seal pending the outcome of this matter. As
amended, the Respondent’s application claims that 66 percent of the
attorney fees and 50 percent of its expenses relate to the allegations that
were withdrawn more than a month prior to the hearing or dismissed.
The Respondent plead multiple defenses in its answer and, in its brief,
argued that John R. Carter was a supervisor and that the Union sought
to place “union agents in managerial positions” and thereby “entrap the
Employer.” The decision rejected both of those defenses.
3 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.