Roofers Local 135 (Advanced Coatings)

National Labor Relations Board - Board Decisions

Apr 18, 1984

269 N.L.R.B. 1067 (N.L.R.B. 1984)

ROOFERS LOCAL 135 (ADVANCED COATINGS)
United Union of Roofers, Waterproofers, and Allied
Workers, Local Union No. 135, AFL-CIO and
Advanced Coatings and Insulation of Arizona,
Inc. Case 28-CC-733-3(E)
18 April 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 20 October 1983 Administrative Law Judge
Jerrold H. Shapiro issued the attached supplemen-
tal decision. The Applicant, United Union of Roof-
ers, Waterproofers, and Allied Workers, Local
Union No. 135, AFL-CIO, filed exceptions and a
supporting brief. The General Counsel filed cross-
exceptibns and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted, and the application of the
Applicant, United Union of Roofers, Water-
proofers, and Allied Workers, Local Union No.
135, AFL-CIO, for an award under the Equal
Access to Justice Act is dismissed.
DECISION
(Equal Access to Justice Act)
JERROLD H. SHAPIRO, Administrative Law Judge.
This supplemental proceeding is before the National
Labor Relations Board, herein called the Board, for con-
sideration of the Application for Award of Attorneys'
Fees and Expenses, herein called the Application, sub-
mitted by the Respondent, United Union of Roofers, Wa-
terproofers, and Allied Workers, Local Union No. 135,
AFL-CIO, herein called the Applicant, pursuant to the
provisions of the Equal Access to Justice Act, herein
called the EAJA, Pub. L. 96-481, Stat. 2325 and Section
102.143, et seq., of the Board's Rules and Regulations.
On March 4, 1983, the Board issued a Decision and
Order in the above-entitled proceeding, dismissing the
General Counsel's complaint in its entirety. '
On April 4, 1983, the Applicant filed with the Board
the Application herein and by its Order dated April 12,
1983, the Board referred the Application to me.
On April 19, 1983, the General Counsel filed a Motion
to Dismiss the Application. The Applicant filed a re-
' 266 NLRB 321.
269 NLRB No. 183
sponse on May 9, 1983. I issued an order on May I 1,
1983, denying the General Counsel's motion to dismiss,
but without prejudice to the right of the General Coun-
sel to include in its answer to the Application the de-
fenses raised in that motion. I also ordered the Applicant
to file an affidavit in support of its assertion that the Ap-
plicant was not under trusteeship when the complaint
issued in the underlying unfair labor practice proceeding.
On May 24, 1983, the Applicant, in response to my order
of May 11, 1983, filed the affidavit and also requested
that certain additional fees and costs incurred in connec-
tion with the prosecution of the Application be allowed.
On May 27, 1983, the General Counsel filed an answer
to the Application and a memorandum in support thereof
and, on June 2, 1983, filed a supplemental answer. The
Applicant on June 10, 1983, filed a response to the Gen-
eral Counsel's answer and supplemental answer and also
requested that certain additional fees and costs incurred
in connection with the prosecution of the Application be
allowed.
Based on the record in this supplemental proceeding,
described supra,2 and the record in the underlying unfair
labor practice proceeding, and having considered the ar-
guments advanced by the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Underlying Unfair Labor Practice Proceeding
On May 6, 1982, the General Counsel, pursuant to an
unfair labor practice charge filed April 30, 1982, against
the Applicant by Advanced Coatings and Insulation of
Arizona, Inc., herein called ACI, issued the complaint in
this case alleging that the Applicant engaged in unfair
labor practices within the meaning of Section 8(bX4)(i)
and (ii)(B) of the National Labor Relations Act, by pick-
eting on April 22, 1982, at the Hassayampa Pumping
Plant, herein called the Project, in furtherance of its
labor dispute with ACI, at a gate reserved for neutral
employers, with an object of forcing and requiring the
Project's general contractor, the Guy F. Atkinson Con-
struction Company, to stop doing business with ACI,
which was one of Atkinson's subcontractors. On June 9,
1982, I conducted a hearing in this matter and on Octo-
ber 5, 1982, I issued my decision recommending that the
compaint be dismissed. On March 4, 1983, the Board,
after considering the General Counsel's exceptions and
supporting brief and the Applicant's response, issued its
Decision and Order affirming my decision.3
B. Discussion and Ultimate Conclusions
I am of the opinion, as contended by the General
Counsel, that the Application should be dismissed be-
cause the Applicant has failed to establish that it meets
a I have considered and rejected Geteral Counsel's motion that I strike
"all the supplemental factual submissions" included in the Applicant's
May 9, 1983, response to the General Counsel's motion to dismiss, be-
cause said information was untimely filed. Likewise, I have considered
and rejected the Applicant's request that I strike the General Counsel's
June 2., 1983, supplemental answer because it was allegedly untimely
filed.
3 266 NLRB 321 (1983).
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any one of the EAJA eligibility requirements.4 My rea-
sons for reaching this conclusion are as follows.
Section 102.143(c) (1) through (5) of the Board's Rules
and Regulations, in relevant part, enumerate the appli-
cants eligible to receive an EAJA award. Applicants eli-
gible to receive an award are, among others: "(3) A
charitable or other tax-exempt organizations described in
Section 501(c)(3) of the Internal Revenue Code (26
U.S.C. 501(c)(3)) with not more than 500 employees"; or,
"(5) Any ... organization with a net worth of not more
than $5 million and not more than 500 employees."
Section 102.147(b) of the Board's Rules and Regula-
tions states in relevant part:
The application shall include a statement that the
Applicant's net worth does not exceed .. . $5 mil-
lion .... However, an applicant may omit this
statement if: (1) It attaches a copy of a ruling by the
Internal Revenue Service that it qualifies as an or-
ganization described in Section 501(c)(3) of the In-
ternal Revenue Code ....
Section 102.147(e) of the Board's Rules and Regula-
tions in relevant part provides that the application shall
"contain or be accompanied by a written verification
under oath or under penalty of perjury that the informa-
tion provided in the application is true."
Section 102.147(f) of the Board's Rules and Regula-
tions provides in relevant part that "fe]ach applicant,
except a qualified tax exempt organization ... must pro-
vide with its application a detailed exhibit showing the
net worth of the applicant .... The exhibit may be in
any form convenient to the applicant that provides full
disclosure of the applicant's . . . assets and liabilities and
is sufficient to determine whether the applicant qualifies
under the standards in this part."
The Application in this case alleges that the Applicant
is eligible to receive an award because it is a tax-exempt
labor organization, as described in section 501(c)(5) of
the Internal Revenue Code, 5 which employs less than
500 employees." This does not, however, establish the
Applicant's eligibility. As described supra, Section
102.143(c)(3) of the Board's Rules provides that it is only
"[a] charitable or other tax-exempt organization de-
scribed in section 501(c)(3) of the Internal Reveue
Code," not section 501(c)(5), which is eligible to receive
an EAJA award.7
4 In view of this conclusion I have not considered the General Coun-
sel's further contentions that the Application should be dismissed because
it was untimely filed and because, in any event, the General Counsel has
proven that the General Counsel's position in the underlying unfair labor
practice proceeding was substantially justified.
6 Due to a typographical error the Application inadvertently referred
to sec. 501(c)(3) rather than sec. 501(cX5) of the Internal Revenue Code.
This typographical error was corrected by the Applicant in its May 9,
1983, response to the General Counsel's Motion to Dismiss Application.
I I have considered and rejected the General Counsel's contention that
the copy of the IRS ruling attached by the Applicant to the Application,
in support of its assertion that it is a tax-exempt labor organization as de-
scribed in sec. 501(cXS) of the IRC, is obsolete and inadequate.
7 Sec. 501(cX3) and (5) of the Internal Revenue Code provides in rele-
vant part that the following organizations are tax exempt:
(3) Corporations, and any community chest, fund, or foundation,
organized and operated exclusively for religious, charitable, scientif-
ic, testing for public safety, literary, or education purposes, or for
Likewise the record fails to establish that the Appli-
cant is an organization with a net worth of not more
than $5 million. The Application fails to include a state-
ment that the Applicant's net worth does not exceed $5
million, as required by Section 102.147(b) of the Board's
Rules,8 and fails to include a detailed exhibit showing
the Applicant's net worth, as required by Section
102.147(f) of the Board's Rules.9
Based on the foregoing I find that the Applicant has
failed to established that it is either a tax-exempt organi-
zation described in Section 501(c)(3) of the Internal Rev-
enue Code or an organization with a net worth of less
than $5 million or that it otherwise qualifies as an appli-
cant eligible to receive an EAJA award.' ° I therefore
shall recommend that the Application be dismissed for
the reason that the Applicant has.failed to establish its
eligibility to receive an award.
On the foregoing findings and conclusions and on the
entire record, and pursuant to Section 102.153 of the
the prevention of cruelty to children or animals; no part of the net
earnings of which inuers to the benefit of any private shareholder or
individual, no substantial part of the activities of which is carrying
on propoganda, or otherwise attempting, to influence legislation, and
which does not participate in, or intervene in (including the publish-
ing or distributing of statements), any political campaign on behalf of
any candidate for public office ...
(5) Labor, Agricultural, or horticultural organization.
s The Applicant in its May 9, 1983, response to the General Counsel's
motion to dismiss the Application states that "in order to comply with
Section 102.147(b) of the Rules, a statement of net worth is attached
hereto." The statement referred to is a letter dated November 18, 1982,
addressed to the Applicant's lawyer from Kinsey M. Robinson, the Ap-
plicant's principal official, which in relevant part states, "[pllease be ad-
vised that the total net worth of [the Applicant] is less than $5 million
dollars." This letter is not signed by Robinson, rather it is signed on his
behalf by the clerical who typed it. Considering that the Board's Rules,
supra, require that the Application include a statement that the Appli-
cant's net worth does not exceed S5 million and that the Application
must include a written verification under oath that this information is
true, Robinson's unsworn letter which is not attached to the Application
and which is not signed by Robinson, but by an unidentified clerical on
his behalf, does not meet the requirements of Sec. 102.147(b) of the
Board's Rules.
9 The Applicant contends that since it is tax-exempt labor organization
as described in sec. 501(cX5) of the Internal Revenue Code that under
the portion of Sec. 102.147(f) of the Board's Rules which exempts "a
qualified tax exempt organization" from filing a detailed net worth exhib-
it, that the Applicant was privileged to omit filing a detailed net worth
statement. I disagree. It is plain from a reading of Sec. 102.14 3(cX3) and
Sec. 102.147(b) of the Board's Rules that the reference to "a qualified tax
exempt organization" in Sec. 102.147(f) refers only to a tax-exempt orga-
nization described in sec. 501(cX3) of the Internal Revenue Code. Thus
Sec. 102.143(c) limits eligibility of tax-exempt organizations only to those
described in sec. 501(cX3) of the Internal Revenue Code, and Section
102.147(b), consistent with this, permits an applicant to omit stating in its
application that it attaches an Internal Revenue Service ruling showing
"that it qualifies as an organization described in Section 501(cX3) of the
Internal Revenue Code." Under the circumstances it is abundantly clear
that by using the phrase "a qualified tax-exempt organization" in Sec.
102.147(f0 the Board Rules was referring to an organization that qualifies
as a tax-exempt organization as described in sec. 501(cX3) of the Internal
Revenue Code.
i° In view of this conclusion I have not considered the General Coun-
sel's further contention that the Applicant has not established its eligibil-
ity inasmuch as it failed to provide the number, category, and work loca-
tion of the employees or the net worth of its alleged affiliate, the United
Union of Roofers, Waterproofers, and Allied Workers, the Applicant's
parent organization.
1068
ROOFERS LOCAL 135 (ADVANCED COATINGS)
Board's Rules and Regulations, I issue the following rec-
ommended '
" 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.
ORDER
It is hereby ordered that the Application of the Appli-
cant United Union of Roofers, Waterproofers, and Allied
Workers, Local Union No. 135, AFL-CIO, Phoenix, Ar-
izona, for an award under the Equal Access to Justice
Act is denied.
1069