Pacific Coast Metal Trades Council (Foss Launch)

National Labor Relations Board - Board Decisions

Aug 2, 1984

271 N.L.R.B. 1165 (N.L.R.B. 1984)

PACIFIC COAST METAL TRADES COUNCIL (FOSS LAUNCH)
Pacific Coast Metal Trades District Council and Se-
attle Metal Trades Council and Foss Shipyard,
a Division of Foss Launch & Tug Co. (A Dil-
lingham Company). Case 19-CB-4024(E)
2 August 1984
SUPPLEMENTAL DECISION AND
ORDER REMANDING PROCEEDING
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 22 March 1982 the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding affirming the administrative
law judge's finding that Pacific Coast Metal Trades
District Council and Seattle Metal Trades Council,
the Applicants herein, had not engaged in unfair
labor practices in violation of Section 8(b)(3) of the
Act by refusing to execute a collective-bargaining
contract with Foss Shipyard, A Division of Foss
Launch & Tug Co. (A Dillingham Company).
Thereafter, the Applicants timely filed with the
Board an application for attorneys' fees and ex-
penses pursuant to the Equal Access to Justice Act,
Pub. L. 96-481, 94 Stat. 2325, 5 U.S.C. § 504
(1980) (EAJA), and Section 102.143 et seq. of the
Board's Rules and Regulations (Board's Rules). In
their application, the Applicants argue that, as pre-
vailing parties in the underlying adversary adjudi-
cation, they are entitled to an award of fees and ex-
penses under EAJA. On 26 April 1982, pursuant to
Section 102.148(b) of the Board's Rules, the Board
ordered that the matter be referred to the judge for
appropriate action. Thereafter, the General Coun-
sel filed a motion to dismiss the application for
award of fees and expenses, and the Applicants
timely filed a response thereto. On 8 June 1982 the
judge issued an order denying the General Coun-
sel's motion to dismiss. On 7 July 1982 the General
Counsel filed an answer to the Applicants' applica-
tion and a supporting memorandum. Subsequently,
during a conference call between the parties, the
judge requested that the parties submit a supple-
mental memorandum on the issue of the Appli-
cants' eligibility for an award under EAJA, as well
as on the merits of the application. Pursuant to the
judge's request, the General Counsel filed a supple-
mental memorandum, with attachments, 2 on 10
December 1982. On 20 December 1982 the Appli-
cants filed a motion to strike the attachments to the
supplemental memorandum, and the General Coun-
sel filed a response to the Applicants' motion.
'260 NLRB 1117 (1982).
2 The attachments consisted of several letters and two affidavits ob-
tained during the General Counsel's administrative investigation of the
unfair labor practice charge.
271 NLRB No. 195
On 11 January 1983 the judge issued the at-
tached supplemental decision in this proceeding in
which he granted the Applicants' motion to strike
the evidentiary materials attached to the General
Counsel's supplemental memorandum, and also
found that the General Counsel had failed to dem-
onstrate that his position in the case was substan-
tially justified as required under Section 102.144 of
the Board's Rules. The judge found that pursuant
to Section 102.143 of the Board's Rules the Appli-
cants are eligible for an award under EAJA and
accordingly ordered that the Applicants be award-
ed attorneys' fees and expenses as provided in
EAJA and Section 102.145 of the Board's Rules.
Thereafter, the General Counsel filed exceptions
and a supporting brief, the Applicants filed excep-
tions and a supporting brief, and the General Coun-
sel and the Applicants filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In his exceptions, the General Counsel contends,
inter alia, that the judge erred in failing to aggre-
gate the net worth and number of employees of the
Applicants and their affiliated member local unions
as required by Section 102.143(g) of the Board's
Rules and, as a result, erroneously found the Appli-
cants to be eligible for an award of fees and ex-
penses under EAJA. In their answering brief, the
Applicants argue that the General Counsel's inter-
pretation of the Board's Rules, which would re-
quire that its net worth be aggregated with that of
its constituent labor organizations, is overly broad
and runs contrary to the fundamental purpose of
EAJA, because it would preclude a small entity
with "any" affiliations of protection from govern-
mental attack. Further, the Applicants argue that
their constituents do not exercise any substantial
degree of control over the trade councils which
would warrant the aggregation sought by the Gen-
eral Counsel.
We find that aggregation may be appropriate on
the facts of this case. Section 102.143 of the
Board's Rules provides that only prevailing parties
who meet certain eligibility requirements relating
to total net worth and, in most cases, number of
employees shall be eligible for an award of fees and
expenses under EAJA. Specifically, Section
102.143(c)(5) provides as follows:
(c) Applicants eligible to receive an award
are as follows:
(5) any other partnership, corporation, asso-
ciation, or public or private organization with
a net worth of not more than $5 million and
not more than 500 employees.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, Section 102.143(g) provides as follows:
(g) The net worth and number of employees
of the applicant and all of its affiliates shall be
aggregated to determine eligibility. Any indi-
vidual, corporation, or other entity that direct-
ly or indirectly controls or owns a majority of
the voting shares or other interest of the appli-
cant, or any corporation or other entity of
which the applicant directly or indirectly
owns or controls a majority of the voting
shares or other interest, will be considered an
affiliate for purposes of this part, unless such
treatment would be unjust and contrary to the
purposes of the Equal Access to Justice Act
(94 Stat. 2325) in light of the actual relation-
ship between the affiliated entities. In addition,
financial relationships of the applicant other
than those described in this paragraph may
constitute special circumstances that would
make an award unjust.
In finding the Applicants' net worth should not
be aggregated with the net worth of their member
labor organizations, the judge found that the evi-
dence showed that there was an insufficient degree
of financial control exercised by the trade councils
over the local unions or by the local unions over
the trade councils to constitute an affiliation within
the meaning of Section 102.143(g) of the Board's
Rules or Section 1.104(f) and (g) of the Model
Rules of the Administrative Conference of the
United States after which the Board's EAJA rules
were fashioned. 3 Moreover, the judge found that if
the net worth of a local union were to be automati-
cally "lumped together" with the net worth of
international unions, trade councils, or affiliated
local unions, as he construed the General Counsel
to be urging, then EAJA would for all practical
purposes be a nullity as to all but the smallest labor
organizations. 4
At the outset we address the question whether it
would be unjust or contrary to the purpose of the
EAJA to aggregate the net worth of a trade coun-
cil and its member labor organizations for the pur-
pose of determining eligibility for an award of fees
and expenses under that statute. For the reasons set
forth below, we find that it would not. As indicat-
ed in Section 102.143(g) of the Board's Rules, the
aggregation of the net worth of an applicant and
another entity is not simply permissible; rather it is
a Administrative Conference of the United States, Equal Access to Jus-
tice Act: Agency Implementation, 46 Fed.Reg 32900, 32902-32903 (June
25, 1981).
Since this case does not involve the relationship between an interna-
tional union and its affiliated local unions, we find it unnecessary to pass
on the judge's observation with respect to the eligibility issues posed by
that relationship.
mandated where the entity is directly or indirectly
controlled by, or in control of, the applicant. This
is so because the stated, and limited, purpose of
EAJA is to assist only "certain individuals, partner-
ship corporations, and labor and other organiza-
tions, who may be deterred from seeking review
of, or defending themselves against, unreasonable
governmental action because of the expenses in-
volved." 5 As indicated by the Administrative Con-
ference of the United States which prepared the
Model Rules, the intent of Congress was to aid
"truly small entities rather than those that are part
of larger groups of affiliated firms."' The only ex-
press statutory exclusion to aggregation for the
purpose of computing net worth and determining
EAJA eligibility where related entities have joined
a larger group for a common objective is that per-
taining to agricultural cooperatives. Accordingly,
we find that, where the facts evince the requisite
degree of direct or indirect financial control be-
tween a trade council and the labor organizations it
represents for bargaining purposes, such an aggre-
gation would not be unjust or contrary to the pur-
poses of EAJA. 7
As to the facts of this case, we find that, con-
trary to the findings of the judge, the Applicants'
member local unions may exert sufficient direct or
indirect financial control over the Applicants to be
considered affiliates and to require that their net
worth be aggregated with that of the Applicants
for EAJA eligibility purposes. In this connection,
we note that the record shows that the local unions
pay to the Applicants a monthly affiliation fee and
a per capita tax or dues for each union member.
While the judge found such fees insufficient to ex-
hibit the kind of financial control envisioned by
Section 102.143(g) of the Board's Rules and section
1.104(f) and (g) of the Model Rules, the financial
statements filed by the Applicants with their appli-
cation indicate that the vast majority of the Appli-
cants' total cash receipts are derived from these
contributions from the local unions. Thus, the
record suggests that the Applicants are merely
creatures of the local unions and are substantially,
if not completely, dependent on the local unions
for their financial support. We therefore find that
the judge erred in failing to give the parties an op-
porutnity to develop fully the issues relating to the
question of affiliation, including the sources and
nature of the Applicants' income. Accordingly, we
shall order that this matter be remanded to the
judge for the purpose of receiving further evidence
EAJA, sec. 202(a).
46 Fed.Reg. 32900, 32902-32903 (June 25, 1981).
7 EAJA, sec. 203(b)(1)(B).
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PACIFIC COAST METAL TRADES COUNCIL (FOSS LAUNCH)
and making further findings and conclusions con-
cerning the Applicants' EAJA eligibility. If, on
review of this evidence, the judge finds that the
Applicants derive a majority of their financial sup-
port, either directly or indirectly, from their
member local unions, the Applicants' net worth
shall be combined with that of their member local
unions to determine the Applicants' eligibility
under EAJA. We shall further order that the judge
prepare and serve a second supplemental decision
containing findings of fact and conclusions of law
upon the evidence received concerning the Appli-
cants' EAJA eligibility.
In his exceptions, the General Counsel also con-
tests the judge's interpretation of Section 102.150
of the Board's Rules and his granting of the Appli-
cants' motion to strike certain evidentiary materials
first filed as attachments to the General Counsel's
supplemental memorandum. For the reasons set
forth below, we agree with the General Counsel
that the judge erred in failing to consider the prof-
fered evidence.
The complaint in the underlying unfair labor
practice case alleged that the Applicants violated
Section 8(b)(3) by conditioning their execution of a
collective-bargaining contract with the Charging
Party on the Charging Party's use of a different
corporate name on the contract. The central issue
in the case was whether the Charging Party had in
fact changed its name from Foss Launch & Tug
Co. (A Dillingham Company) to Foss Shipyard, A
Division of Foss Launch & Tug Co. (A Dillingham
Company). In his answer to the Applicants' appli-
cation for fees, the General Counsel asserted that
his decision to go forward with the underlying case
was reasonable within the meaning of EAJA based,
inter alia, on certain information discovered during
the General Counsel's administrative investigation
of the unfair labor practice charge. Specifically, the
General Counsel stated that in issuing the com-
plaint and proceeding to hearing he relied on
sworn statements contained in affidavits obtained
from officials of the Charging Party during the in-
vestigation that it had changed its corporate name
for business purposes. Also, the General Counsel
claimed that the Applicants failed to cooperate
with the General Counsel during the investigation
by refusing to permit union officials to be inter-
viewed, and by failing to raise the issue of whether
the Charging Party had actually changed its name.
In his memorandum in support of his answer to the
application, the General Counsel stated that, if the
factual allegations relating to the investigation were
controverted by the Applicants, "an appropriate
showing can and will be made by General Coun-
sel." In response to the judge's subsequent oral re-
quest for the parties to file a supplemental memo-
randum on the issue of "substantial justification,"
the General Counsel filed a supplemental memo-
randum and attached affidavits and letters from the
investigative file to support the factual allegations
relating to the investigation of the charge. In their
motion to strike the attachments, the Applicants
contested the General Counsel's submission of the
documentary evidence with the supplemental
memorandum on the grounds that the parties had
not agreed to file further evidentiary materials. In
the alternative, the Applicants requested that, if the
evidence were accepted, a hearing be conducted on
the issues raised by the General Counsel.
In granting the Applicants' motion and striking
the attachments to the General Counsel's supple-
mental memorandum, the judge ruled that the Gen-
eral Counsel had failed to comply with Section
102.150(c) of the Board's Rules which provides in
pertinent part as follows:
(c) . . . If the answer is based on alleged
facts not already in the record of the adver-
sary adjudication, supporting affidavits shall be
provided or a request made for further pro-
ceedings under section 102.152.
The judge reasoned that, since the General Counsel
failed to submit the affidavits and letters simulta-
neously with his answer, the evidentiary materials
could not properly be included in the record. We
disagree.
The General Counsel, in his answer to the Appli-
cants' application for fees, set forth the basis for
the General Counsel's decision to go forward with
the adversary adjudication. While the General
Counsel, in his answer, relied on factual allegations
relating to the investigation of the unfair labor
practice charge which were not part of the record
in the adversary adjudication, he also made it clear
that, if these nonrecord facts were controverted,
he could and would provide supporting evidence.
We find that the General Counsel, in taking this
approach, properly sought to preserve the confi-
dentiality of the affidavits and other materials con-
tained in the Region's investigative file, while re-
serving the right to release such materials should a
material factual dispute arise. As noted above, Sec-
tion 102.150(c) of the Board's Rules specifically
gives the General Counsel the option of submitting
with the answer supporting affidavits on alleged
facts not already in the record of the adversary ad-
judication or making a request for further proceed-
ings under Section 102.152 of the Board's Rules. 8
8 Sec. 102.152 provides, in pertinent part:
Continued
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's stated willingness to adduce
suppporting evidence should certain alleged nonre-
cord facts be contested was in effect a request for
such further proceedings should they be necessary.
When the judge thereafter requested each of the
parties to file a supplemental memorandum on sev-
eral issues including that of "substantial justifica-
tion," the General Counsel had little choice but to
respond, which he did in a timely manner. Indeed,
under the circumstances, the General Counsel had
reason to construe that request as an order for fur-
ther proceedings under Section 102.152(a)-even
though the judge did not mention that section of
the Board's Rules. Consequently the General
Counsel's submission of supporting evidence re-
garding the issue of substantial justification was
warranted, if not mandated, by the judge's request.
Thus, contrary to the judge, we find that the Gen-
eral Counsel's manner of proceeding complied with
the provisions of Section 102.152(a) of the Board's
Rules and that the judge therefore erred in grant-
ing the Applicants' motion to strike the materials
submitted by the General Counsel as attachments
to his supplemental memorandum.
We further find no merit to the Applicants' con-
tention that acceptance of the evidentiary materials
at issue will deprive it of an opportunity to re-
spond. Had the judge permitted the introduction of
these materials, as he should have, the Applicants,
pursuant to Section 102.152(a) of the Board's
Rules, could have requested, or the judge on his
own initiative could have solicited, a reply thereto
and, if necessary, a hearing could have been con-
ducted.
Accordingly, we shall order on remand that, in
the event the Applicants are found to be eligible
for an EAJA award, the judge shall accept into
evidence and consider the General Counsel's at-
tachments to the supplemental memorandum. As
the parties have not had an opportunity to develop
fully the issues relating to the allegations contained
in the General Counsel's attachments, we shall
order that the judge reopen the record and, if nec-
essary, conduct an evidentiary hearing for the pur-
pose of receiving further evidence on the issues
raised in the subject materials relating to the Gen-
eral Counsel's claim that his position in the under-
lying adjudication was substantially justified.9
(a) . . . The administrative law judge, however, upon request of
either the applicant or the General Counsel, or on his or her own
initiative, may order further proceedings, including . . . additional
written submission, or an evidentiary hearing.
9 We do not at this time pass on the findings of the judge with respect
to the effective date of EAJA or the appropriate type and amount of
awards and fees to be awarded herein.
ORDER
It is ordered that this proceeding is remanded to
Administrative Law Judge Jay R. Pollack for the
purpose of reopening the record and, if necessary,
conducting a hearing to receive further evidence
relating to the Applicants' eligibility for an award
of fees and expenses under EAJA and, in the event
it is determined that the Applicants are eligible for
an EAJA award, to accept into evidence the at-
tachments to the General Counsel's supplemental
memorandum concerning whether the General
Counsel was substantially justified in proceeding in
the underlying case and to resolve any material
factual disputes in connection with these issues.
IT IS FURTHER ORDERED that the judge prepare
and serve on the parties a second supplemental de-
cision containing any necessary credibility resolu-
tions, findings of fact upon the evidence received
pursuant to the provisions of this Order, conclu-
sions of law, and recommendations; and that, fol-
lowing service of the second supplemental decision
on the parties, the provisions of Section 102.46 of
the Board's Rules and Regulations shall be applica-
ble.
SUPPLEMENTAL DECISION
(Equal Access To Justice Act)
JAY R. POLLACK, Administrative Law Judge. On
March 22, 1982, the National Labor Relations Board
issued a Decision and Order in the above-captioned case
(260 NLRB 1117) adopting my recommended Order, as
modified, and dismissing the complaint in its entirety.
On April 21, 1982, Pacific Coast Metal Trades District
Council and Seattle Metal Trades Council (the Appli-
cants) filed an application for attorneys' fees and ex-
penses under the Equal Access to Justice Act, Pub. L.
96-481, 94 Stat. 2325 (EAJA), and Section 102.143 of the
Board's Rules and Regulations. On April 26, the Board
referred this matter to me for appropriate action. After
considering the record in the underlying unfair labor
practice case, the pleadings in this action,' and the
memoranda supplemental thereto, I make the following
findings and conclusions.
1. SUBSTANTIAL JUSTIFICATION
EAJA provides that an administrative agency award
to a prevailing party certain expenses incurred in connec-
' The Applicants filed a motion to strike certain evidentiary materials
submitted by the General Counsel as attachments to his legal memoran-
dum in opposition to fees and costs. Under Sec. 102.150 of the Board's
Rules, if the General Counsel's position in based on alleged facts not al-
ready in the record of the underlying adversary adjudication, supporting
affidavits shall be provided or a request made for further proceedings
under Sec. 102.152. Here, the General Counsel filed no affidavits with his
answer but rather attempted to file affidavits and other documents some 5
months later. Accordingly, as the General Counsel has not complied with
the Board's Rules, the evidentiary materials are not properly part of the
record and the Applicants' motion is granted.
1168
PACIFIC COAST METAL TRADES COUNCIL (FOSS LAUNCH)
tion with an an adversary adjudication, unless the agency
finds that the position of the Government was "substan-
tially justified." Although EAJA is silent on the meaning
of the "substantially justified" standard, the legislative
history of EAJA contains an instructive passage:
The test of whether or not a Government action
is substantially justified is essentially one of reason-
ableness. Where the Government can show that its
case had a reasonable basis both in law and fact, no
award will be made. In this regard, the strong de-
terrents to contesting Government action require
that the burden of proof rest with the Government.
This allocation of the burden, in fact, reflects a gen-
eral tendency to place the burden of proof on the
party who has readier access to and knowledge of
the facts in question. The committee believes that it
is far easier for the Government, which has control
of the evidence, to prove the reasonableness of its
action than it is for a private party to marshal the
facts to prove that the Government was unreason-
able.
The standard, however, should not be read to
raise a presumption that the Government position
was not substantially justified simply because it lost
the case. Nor, in fact, does the standard require the
Government to establish that its decision to litigate
was based on a substantial probability of prevailing.
H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10 (1980), cited
in Enehaul, Inc., 263 NLRB 890 fn. 2 (1982). See also S.
Rep. No. 253, 96th Cong., 2d Sess. 6-7 (1980).
In the underlying unfair labor practice case, the
Board's General Counsel alleged that the Applicants vio-
lated Section 8(b)(3) of the National Labor Relations Act
by refusing to execute a collective-bargaining agreement
with Foss Shipyard, A Division of Foss Launch & Tug
Co. (A Dillingham Company) (the Company). The Ap-
plicants did not dispute that a collective-bargaining
agreement had been reached as a result of multi-
employer/multiunion bargaining. However, the Appli-
cants contended that the proper party to the contract
was Foss Launch & Tug Co. At the hearing on Septem-
ber 17, 1981, the evidence revealed that the proper legal
name of the Company was Foss Launch & Tug Co. (A
Dillingham Company). On October 20, 1981, the General
Counsel filed a motion to withdraw the complaint on the
ground that the Applicant could not "be legally com-
pelled to execute a contract with a name other than the
properly registered name." However, the Company op-
posed the General Counsel's motion to withdraw the
complaint. Thereafter, on November 5, 1981, on the basis
of the entire record, I found no merit to the allegations
of the complaint and granted the motion to withdraw the
complaint. On March 22, 1982, the Board modified my
Order and dismissed the complaint in its entirety.
Based on the facts and circumstances set forth above, I
find that the General Counsel has not shown that his
conduct of the instant proceeding was substantially justi-
fied. Under the General Counsel's view of the case, the
legal name of the Company was controlling. However,
that particular fact was a matter of public record, avail-
able to the General Counsel prior to his issuance of the
complaint. As discussed above, in order to defeat an
award the General Counsel must show that his case had
a reasonable basis in law and fact. I find that the General
Counsel has failed to carry that burden.
11. ELIGIBILITY
The General Counsel contends that the Applicants are
not eligible under EAJA because the net worth of affili-
ated labor organizations allegedly total in excess of $5
million. Section 504(b)(1)(B) of EAJA excludes from
coverage2 any association or organization whose net
worth exceeded $5 million at the time the adversary ad-
judication was initiated. Section 102.143(g) of the
Board's Rules and Regulations provides:
(g) The net worth and number of employees of
the applicant and all of its affiliates shall be aggre-
gated to determine eligibility. Any individual, cor-
poration, or other entity that directly or indirectly
controls or owns a majority of the voting shares or
other interest of the applicant, or any corporation
or other entity of which the applicant directly or in-
directly owns or controls a majority of the voting
shares or other interest, will be considered an affili-
ate for purposes of this part, unless such treatment
would be unjust and contrary to the purposes of the
Equal Access to Justice Act (94 Stat. 2325) in light
of the actual relationship between the affiliated enti-
ties. In addition, financial relationships of the appli-
cant other than those described in this paragraph
may constitute special circumstances that would
make an award unjust.
As stated above, the General Counsel contends that
the Applicants' net worth should be determined by the
aggregate net worth of their member labor organizations.
The General Counsel concedes that local unions are sep-
arate and distinct entities from the trade councils and
that one is not automatically responsible for the miscon-
duct of the other. See Mine Workers (Blue Diamond
Coal), 143 NLRB 795, 797 (1963); Carbon Fuel Co. v.
Mine Workers, 444 U.S. 212, 217 (1979). On the other
hand, in cases in which a local union, in its capacity as
an employer, is charged with the commission of unfair
labor practices, the Board in asserting jurisdiction over a
local union has relied upon affiliation with its internation-
al union. See State County Employees AFSCME Local 17,
251 NLRB 880, 882 (1980); Chain Service Employees
Local 11, 132 NLRB 960 (1961), enfd. in relevant part
302 F.2d 167 (2d Cir. 1962). However, none of those
cases are on point. Here, the question is the application
of the EAJA.
The EAJA does not make any reference to the affili-
ates of applicants. The reference to affiliates in the
Board's Section 102.143(g), supra, apparently stems from
the Model Rules of the Administrative Conference of the
United States,3 Section 104(f) and (g):
2 With exceptions not applicable here.
3 46 Fed. Reg 32900 et seq.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) The net worth and number of employees of
the applicant and all of its affiliates shall be aggre-
gated to determine eligibility. Any individual, cor-
poration, or other entity that directly or indirectly
controls or owns a majority of the voting shares or
other interest of the applicant, or any corporation
or other entity of which the applicant directly or in-
directly owns or controls a majority of the voting
shares or other interest, will be considered an affili-
ate for purposes of this part, unless the adjudicative
officer determines that such treatment would be
unjust and contrary to the purposes of the Equal
Access to Justice Act (94 Stat. 2325) in light of the
actual relationship between the affiliated entities. In
addition, financial relationships of the applicant
other than those described in this paragraph may
constitute special circumstances that would make an
award unjust.
(g) An applicant that participates in a proceeding
primarily on behalf of one or more other persons or
entities that would be ineligible is not itself eligible
for an award.
The record herein simply shows that local unions in
the metal trades industries enjoy membership in the two
trade councils which comprise the Applicants. Each
local union pays a per capita tax for each of its members
and a nominal monthly affiliation fee. However, there is
no evidence of a financial relationship between the local
unions and the trade councils envisioned by the Board or
Model Rules. The record herein does not show financial
control exercised by the trade councils over the locals or
by the locals over the trade councils. Accordingly, I find
that the Applicants' net worth does not include the
worth of the member local unions. Moreover, if the net
worth of a local union would have to be automatically
lumped together with the net worth of international
unions, trade councils, or affiliated local unions, then for
all practical purposes EAJA would not apply to labor
organizations, save some small in-plant groups. Thus, the
General Counsel's interpretation of the term "affiliates"
in Section 102.143(g) would, in effect, nullify EAJA with
respect to labor organizations. In any event, I find that
the Applicants' net worth, i.e., that of the two trade
councils taken together, does not exceed the eligibility
limitations of EAJA.
Ill. EFFECTIVE DATE OF EAJA
The General Counsel contends that fees incurred prior
to October 1, 1981, are not recoverable. Section 208 of
Pub. L. 96-481 provides that the Act "shall take effect
on October 1, 1981, and shall apply to any adversary ad-
judication . . . which is pending on, or commenced on
or after, such date." 4 Accordingly, EAJA's test for re-
4 Sec. 102.143(a) of the Board's Rules and Regulations defines an "ad-
versary adjudication" as an unfair labor practice proceeding pending
before the Board on notice of hearing at any time between October 1,
1981, and September 30, 1984. To the extent that Sec. 10 2.143(a) is incon-
sistent with EAJA, the rule must yield.
covery of attorneys' fees is whether the case was pend-
ing on or after October 1, 1981, and not when the fees
were incurred. Tyler Business Service v. NLRB, 695 F.2d
73 (4th Cir. 1982). See also Heydt v. Citizens State Bank,
668 F.2d 444 (8th Cir. 1982); Bradley v. School Board of
Richmond, 416 U.S. 696 (1974).
IV. REASONABLE ATTORNEYS' FEES
EAJA explicitly provides for awards at "prevailing
market rates for the kind and quality of the services fur-
nished," up to the ceilings for attorneys and experts.5
The legislative history indicates that the computation of
attorneys' fees should be based on prevailing market
rates without reference to the fee arrangements between
the attorney and client.6
The Board's Rules and Regulations follow this view.
Accordingly, Section 102.145(a) provides:
Awards will be based on rates customarily
charged by persons engaged in the business of
acting as attorneys, agents, and expert witnesses,
even if the services were made available without
charge or at a reduced rate to the applicant.
In the instant case, the Applicants' attorney provided
services under a retainer agreement. As discussed above,
the terms of the retainer agreement between the Appli-
cants and their attorney are not relevant to the computa-
tion of compensation under EAJA. Rather, the award of
fees is determined according to prevailing general profes-
sional standards. As the prevailing rate is in excess of $75
per hour, the $75 rate is utilized herein. See, e.g., Inter-
national Maintenance Systems Group, 262 NLRB 1 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The application of Pacific Coast Metal Trades District
Council and Seattle Metal Trades Council is hereby
granted in the following particulars:
I. The Applicants are awarded attorneys' fees for 20
hours at $75 per hour for the defense of the unfair labor
practice case.
2. The Applicants are awarded $315.50 for travel ex-
penses in connection with its trial defense.
3. The Applicants are awarded attorneys' fees for the
times spent preparing and prosecuting this application for
costs under EAJA.8
Sec. 504(b)(1)(A).
HR. Rep. No. 1418, 96th Cong., 2d Sess. 15 (1980).
7All outstanding motions inconsistent with this Order are denied. 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 purposes.
8 See Tyler Business Services v. NLRB, supra; Young v. Kenley, 641 F.2d
192, 195 (4th Cir. 1981).
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