Enerhaul, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 890 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enerhaul, Inc. and Ronald J. Culwell. Case 10-CA-
16646(E)
August 31, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On May 11, 1982, Administrative Law Judge
Richard J. Linton issued the attached Supplemental
Decision in this proceeding. Thereafter, the Appli-
cant and the General Counsel filed exceptions and
supporting briefs, and the Applicant filed a re-
sponse to the General Counsel's exceptions. The
Applicant also filed a response to the General
Counsel's motion to dismiss petition, which was
served on the Administrative Law Judge subse-
quent to the issuance of his 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 and to
adopt his recommended Order.
On March 22, 1982, the Board issued an Order
dismissing the complaint in the underlying unfair
labor practice case.1 The Applicant, pursuant to
the Equal Access to Justice Act (hereinafter
EAJA), 5 U.S.C.A. § 504 (1982), applied for an
award of attorney's fees and expenses in this case.
The Administrative Law Judge found that the posi-
tion of the General Counsel in the underlying case
was "substantially justified" within the meaning of
EAJA. Accordingly, he ordered that the applica-
tion be dismissed.
EAJA provides that an administrative agency
shall award to a prevailing party certain expenses
incurred in connection with an adversary adjudica-
tion, unless the agency finds that the position of the
government was "substantially justified." The legis-
lative history of EAJA characterized "substantially
justified" as a test of reasonableness, and further
clarified that, "[w]here the Government can show
that its case had a reasonable basis both in law and
fact, no award will be made." 2
Not reported in volumes of Board Decisions.
2 HR. Rept. No. 1418, 96th Cong., 2d sess. 10 (1980), reprinted in 5
U.S. Code Cong. & Ad. News 4984, 4989.
Cf. Wyandotte Savings Bank v. N.L.R.B., 110 LRRM 2929, 2930 (6th
Cir. 1982) ("mere fact that the NLRB was the losing party or the fact
that the NLRB's position was contrary to prior Sixth Circuit precedent
263 NLRB No. 121
Based on our review of this case, we conclude
that the position of the General Counsel was rea-
sonable in law and fact. In particular, we note the
Administrative Law Judge's finding in his original
Decision that the General Counsel established a
prima facie violation of the Act--a finding to
which no party excepted. 3 We therefore agree
with the Administrative Law Judge's finding that
the General Counsel's position was substantially
justified within the meaning of EAJA. Consequent-
ly, the Applicant's application shall be dismissed. 4
ORDER
It is hereby ordered that the application of the
Applicant, Enerhaul, Inc., Birmingham, Alabama,
for an award under the Equal Access to Justice
Act be, and it hereby is, dismissed.
does not mean that the Board was not substantially justified in seeking
enforcement of its order").
3 We do not, however, suggest that a finding that the General Counsel
established a prima facie case is a prerequisite to finding the General
Counsel's position reasonable in law and fact. We shall continue to ana-
lyze EAJA applications on a case-by-case basis.
Chairman Van de Water recognizes that the General Counsel is bound
to issue a complaint consistent with Board precedent contemporaneous
with his consideration of the case, and Chairman Van de Water therefore
agrees with the finding herein that the General Counsel's position was
reasonable in law and fact. But, he does not intend to imply that, were he
deciding the merits of this case, he would agree (on the basis of the facts
herein) that the employee engaged in "concerted activity."
Given our holding herein, we find it unnecessary to address the Gen-
eral Counsel's exceptions to the Administrative Law Judge's Supplemen-
tal Decision.
SUPPLEMENTAL DECISION AND ORDER
RICHARD J. LINTON, Administrative Law Judge: This
is a supplemental proceeding under the Equal Access to
Justice Act (EAJA: Public Law 96-481-October 21,
1980; 94 Stat. 2325), and Section 102.143, et seq., of the
Board's Rules and Regulations.
Enerhaul, Inc. (Enerhaul or Applicant), has filed its
application, dated March 26, 1982, for an award of fees
and expenses under the EAJA. By its application, Ener-
haul claims a total of $7,450.50 for fees (no expenses
claimed) as a result of defending itself in the underlying
unfair labor practice case, Enerhaul, Inc., Case 10-CA-
16646.1
In his April 22, 1980, motion to dismiss the applica-
tion, the General Counsel raises several procedural ob-
jections. He also moves to dismiss the application on the
merits.
I find it unnecessary to address the procedural grounds
relied on by the General Counsel, for it is clear from my
Decision in the underlying case, and I hereby find, that
the position presented by the General Counsel in Case
l Case 10-CA-16646 was heard before me in Birmingham, Alabama,
on December 7 and 8, 1981. On February 12, 1982, I issued my Decision
and recommended Order that the complaint be dismissed (JD-(ATL)-7-
82). In the absence of exceptions, the Board issued its Order of March 22,
1982, adopting my order dismissing the complaint.
890
ENERHAUL, INC.
10-CA-16646 was "substantially justified" within the
meaning of the EAJA. Accordingly, the application must
be dismissed.
ORDER 2
It is ordered that the application is dismissed.
2 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 find-
ings, 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
891