Stonehouse Coal Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1258 (N.L.R.B. 1985)

1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stonehouse Coal Company and -United Mine Work-
ers of America, District 29. Case 9-CA-
20314(E)
30 September 1985
DECISION AND ORDER.
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 1 May 1984 Administrative Law Judge
Martin J. Linsky issued the attached decision under
the Equal Access to Justice Act (EAJA). Stone-
house Coal Company filed exceptions and a sup-
porting brief. The General Counsel filed an answer
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 , answer , and briefs
and has decided to affirm the judge 's findings and
conclusions ' and to adopt the recommended
Order.
ORDER
It is ordered that the General Counsel's motion
to dismiss be granted and Stonehouse Coal Compa-
ny's petition for an award under the Equal Access
to Justice Act is denied.
In light of our determination that the General Counsel 's position in
the underlying case was, substantially justified , we find it unnecessary to
resolve the questions raised concerning Stonehouse 's failure to meet pro-
cedural and technical requirements of EAJA and the Board's Rules and
Regulations , or to remand the proceeding to the judge for resolution of
these issues.
We believe that Congress , in revising the Equal Access to Justice Act,
5 U S C § 504 (1982), as amended by Pub L 99-80, 99 Stat 183 (Aug
5, 1985), did not alter , but merely clarified , the definition of "substantially
justified " "Substantially 'justified" means more than "mere reasonable-
ness " H.R Conf Rep 99-120, p 9
Patricia Rossner Fry, Esq. and Engrid Emerson Vaughan,
Esq., of Cincinnati, Ohio, for the General Counsel.
William M. Herlihy, Esq. and Charles L. Woody, Esq., of
Charleston,' West Virginia, for the Applicant.
DECISION
[Equal Access to Justice Act]
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. The
complaint, which issued on December 19, 1983, alleged
that Stonehouse Coal Company, the Respondent in the
unfair labor practice case but herein called Applicant,
violated Section 8(a)(1), (2), and (3) of the National
Labor Relations Act (the Act). Specifically, the com-
plaint charged that: (1) the Applicant threatened employ-
ees with starvation,-no work, discharge, layoff and/or re-
fusal to recall, and physical violence if they persisted in
pressing grievances with the Union, and the Applicant
promised employees jobs if they discontinued pressing
grievances with the Union in violation of Section 8(a)(1)
of the Act; (2) the Applicant recognized and bargained
with a "mine committee" as the representatives of the
employees, notwithstanding that this "mine committee"
had not been duly elected or appointed to act on behalf
of the Union in violation of Section 8(a)(2) of the Act;
and (3) the Applicant had refused to recall from layoff
five named employees because these employees had
joined, supported, or assisted the Union; filed grievances
with the Union; and engaged in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection in violation of Section 8(a)(3) of the Act.
On February 7, 1984, the record was opened, and
without taking testimony I accepted an informal settle-
ment made between the Applicant, the Union, and the
General Counsel. The parties agreed to execute an infor-
mal settlement agreement as to the 8(a)(1) charges,
which included a notice to employees which was read
into the record in which the Applicant stated it would
not threaten its employees with discharge, etc., for press-
ing grievances or make promises to employees if they
dropped grievances. The notice to its employees to be
posted by the Applicant contained the standard nonad-
mission clause.
With respect to the 8(a)(2) charge, the parties agreed
to be bound by a prior arbitration decision concerning
this same matter and at the mutual request of the Appli-
cant, the Union, and the General Counsel that portion of
the complaint was dismissed by me.
The parties agreed to submit the 8(a)(3) charge, which
concerned the failure to recall the five employees, to ex-
pedited arbitration wherein the Union would be permit-
ted to fully litigate not only the refusal to recall, which
was one of the charges in the complaint, but also the
merits of the original layoff which was not part of the
complaint. The Applicant' agreed to waive any argument
regarding the timeliness of the submission of the matter
to arbitration under the grievance arbitration clause of its
contract with the Union. The Applicant and Union fur-
ther agreed to be bound by the arbitrator's decision and
not seek review of it by the General Counsel. In addi-
tion, the Applicant and Union agreed that certain indi-
viduals would not be selected as the arbitrator. The Ap-
plicant had prior to the February 7, 1984 hearing already
recalled two of the five alleged discriminatees back to
work and agreed to recall the remaining three back to
work during the week following the hearing.
On March 8, 1984, the Applicant filed with the Board
a petition for award of fees and other expenses under the
Equal Access to Justice Act (EAJA)' The Board in an
Order dated March 22, 1984, referred the petition to me
for appropriate action. Thereafter, I received General
Counsel's motion to dismiss application for an award of
fees and expenses under the Equal Access to Justice Act.
1 5 U.S C § 504 (1982) The Board' s Rules and Regulations implement-
ing the Act are contained at 29 CFR § 102 143 et seq
276 NLRB No. 140
STONEHOtJSE COAL' CO 1259
The Applicant alleges that it meets the EAJA eligibil-
ity standards, was the prevailing party as to the- 8(a)(2)
and 8(a)(3) portions of the complaint, and is entitled to
an award of attorney's fees and expenses. More specifi-
cally,' the Applicant alleges with respect to the-8(a)(2)
charges that the position of the General Counsel was not
reasonable in law and fact because the General Counsel
did not agree to- defer to the arbitrator's :decision until
the--date of the hearing. With respect to the 8(a)(3)
charges the Applicant claims that the withdrawal of the
8(a)(3) charge and the agreement to submit the failure to
recall to binding arbitration without Board review of the •
arbitrator's decision establishes that these charges were
lacking in merit. The Applicant seeks attorney's fees in
the amount of $7843.75. An itemized statement is includ-
ed showing 30.25 hours at $115 per-hour and 72.75 hours
at $60 per hour. The Applicant asserts its belief that a-
higher rate than the $75-per-hour prescribed maximum -
should be awarded because the limited availability of
qualified attorneys in Pineville, West Virginia, where the
Applicant's business is located, required the Applicant to
obtain more expensive counsel from quite a distance
away from its place of business. -
The General Counsel moves to dismiss the petition on
the following grounds: (1) the application fails to meet
the requirements set forth in the Board's Rules and Reg-
ulations because no detailed statement of net worth is at-
tached; (2) the Applicant fails to state the particulars in
which it allegedly prevailed or identify the positions of
the General Counsel which it alleges were not substan-
tially justified; (3) the 'Applicant seeks attorney fees in
excess of the. maximum amount but has failed to explain
fully why a higher rate is warranted ; (4) the Applicant
fails to comply with the requirement of specificity and
documentation by improperly including in its petition
legal expenses incurred in the preparation of cases other
than the unfair labor practice case ; and (5) the Applicant
was not a "prevailing party" in the unfair labor practice
case and the General Counsel was "substantially justi-
fied" in its prosecution of the complaint.
Discussion and Conclusion
For the reasons set forth below, it is unnecessary for
me to resolve the questions raised concerning Applicant's
alleged failure to meet procedural and technical require-
ments of the - statute and regulations . In order to succeed.
in its petition the Applicant must be the "prevailing
party" and even if it is the "prevailing party" the Gener-
al Counsel must be shown not to have been "substantial-
ly justified" in the prosecution of the matter. The Gener-
al Counsel was the prevailing party in every sense of
that term as regards the 8 (a)(1) allegations . Even assum-
ing that the Applicant has met all EAJA eligibility re-
quirements, the Applicant simply did not prevail on the
merits. The Applicant asserts that it was a prevailing
party because one charge (the 8(a)(2) was dismissed in
deference to an arbitrator's decision and another, (the
8(a)(3)) was ,withdrawn and the matter taken to binding
arbitration as part of the settlement. The courts have
found applicants for attorney fees to have been- a "pre-
vailing party" even where the case has been settled, dis-
missed, or resulted in a consent decree . Spenser v. NLRB,
712 F.2d 539 (D.C.'Cir. 1983); Maher v. Gagner, 448 U.S.
122 (1980); Watkins v. Mobile-Housing Board, 632 F.2d
565 (5th Cir. 1980). The courts have given guidelines for
determining if one is a, prevailing- party. In Watkins Y.
Mobile Housing Board, supra, the court, announced that
the test of whether one is' a prevailing -party turns-on
whether the litigant "received substantially the relief re-
quested or -has' been successful on that central issue
.. " In Maher v. Gagner,-the Supreme Court affirmed
the lower court's finding that the plaintiff was a prevail-
ing party "because while not prevailing in' every particu-
lar, she won substantially all the relief originally sought
in her complaint in the consent decree." 448 U_-.S. 122,.
127.
-Applying these. standards to the instant case , clearly
the applicant cannot be considered'a prevailing party. Of
the three issues charged in the complaint;;the Applicant
can only claim to have prevailed on the. charge under
Section 8(a)(2) which was resolved by an arbitrator in its
favor. That part of the complaint which alleged unlawful
threats and'promises in violation of Section,8(a)(1) would
have been remedied by 'a notice similar to the one agreed
to by the parties, if the matter had been' fully litigated
and decided against the Applicant. This is notice is there-
fore "substantially all the relief originally sought" in the
complaint which makes the General Counsel and not the
Applicant the prevailing party on this issue.
That part of the complaint which alleged the failure to
recall the five laid-off employees in violation of Section
8(a)(3) was settled by recalling the three remaining al-
leged discriminatees immediately (two had been recalled) .
and submitting the entire issue to binding arbitration.
The five discriminatees were all back to work as a result
of the settlement and the arbitration; was to address not
only the issue of the failure to recall but also the issue of
the original layoff, which was not even part of the com-
plaint. The General Counsel and Union were the prevail-
ing party as to this portion of the complaint.
The Applicant asserts that the position of the General
Counsel was not reasonable because they did not agree
to defer to the arbitration award on 8(a)(2) charge prior
to the date of the settlement. The Applicant contends
that in light of the Board's decision in Olin Corp., 268
NLRB 573, and United Technologies Corp., 268 NLRB
557, both decided January 19, 1984, the General Counsel
was unjustified in refusing to defer to the arbitrator's de-
cision right away. These cases, however, were decided
only 2-1/2 weeks before the - scheduled hearing in this
case . They are landmark decisions which overruled set-
tled precedent in the areas of deferral to arbitration and
the deference to be accorded in the decisions of arbitra-
tors. The two aforesaid decisions were issued -1 month
after the unfair labor practice complaint had issued.
The existing Board law. at the time the complaint
issued and up to January ,19, 1984, when the Board
issued its. landmark decisions, in Olin Corp., supra, and
United Technologies Corp., supra, was. such that the Gen-
eral Counsel was clearly substantially justified in pros-
ecuting the 8(a)(2) and the 8(a)(3) portions of the com-
plaint . The Board' s decision in Olin Corp., supra, was",
persuasive in causing the General Counsel-and Union to
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree to dismiss the 8(a)(2) as part of the settlement of
the case. The Board's decision in United Technologies
Corp., supra , was persuasive in causing the General
Counsel and the Union to let the 8(a)(3) charge be decid-
ed by arbitration. These very recent changes in the law
do not mean that the General Counsel was not, substan-
tially justified in prosecuting the complaint. The General
Counsel must enforce the law as it exists not as they
might like it to be or as they predict it will become.
From the foregoing it is clear that the Applicant was
not the prevailing party regarding the 8(a)(1) portion of
the case. Regarding the 8(a)(3) portion of, the case the
Applicant was similarly not the prevailing party. As re-
gards the 8(a)(2) portion of the case a change in the law
less then 3 weeks before the hearing might be viewed as
making the Applicant the prevailing party in this portion
of the case but the General Counsel was nevertheless
"substantially justified" in prosecuting that portion of the
case since the decision in Olin Corp., supra, overruling
Suburban Motor Freight, 247 NLRB 146 (1980), could
not have been anticipated to come down when it did.
The record is devoid of evidence to show that the
8(a)(2) charge would have been dismissed under the state
of the law as it existed up to January 19, 1984. Lastly, an
overview of the entire record in this case coupled with
the reality that settlements are compromises and that set-
tlements are to be encouraged leads to the inescapable
conclusion that the General Counsel was more than sub-
stantially justified in handling this case the way it did.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The General Counsel's motion to dismiss is granted,
and the petition of Stonehouse Coal Company for an
award of fees and expenses under the Equal Access to
Justice Act is denied.
2 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-
t