V. B. Fabricators

National Labor Relations Board - Board Decisions

Aug 15, 1984

271 N.L.R.B. 1032 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. B. Fabricators, Inc. and United Steelworkers of
America, AFL-CIO-CLC. Case 6-CA-
16270(E)
15 August 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 April 1984 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Applicant filed exceptions 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the application of V. B. Fab-
ricators, Inc., Glenshaw, Pennsylvania for attor-
ney's fees and expenses under the Equal Access to
Justice Act is denied.
SUPPLEMENTAL DECISION
Equal Access to Justice Act
THOMAS R. WILKS, Administrative Law Judge. This
case now comes before me on application for an award
of attorney's fees and expenses pursuant to the Equal
Access to Justice Act, Pub. L. 96-481, 94 Stat. 2325, 5
U.S.C. § 504 (EAJA) and Section 102.43 et seq. of the
Board's Rules and Regulations.
On January 27, 1984, I issued a Decision and Order
recommending the underlying complaint in this case be
dismissed which the Board adopted in its entirety by De-
cision and Order of March 8, 1984, in the absence of ex-
ceptions.
On March 1, 1984, Respondent filed with the Board an
application for award of attorney's fees and expenses
pursuant to the EAJA and Section 102.43 et seq. of the
Board's Rules and Regulations. On March 12, 1984, the
Board referred this application to the administrative law
judge for appropriate action. Thereafter, on March 21,
1984, the General Counsel filed a motion to dismiss Re-
spondent's application. On March 26, Respondent filed a
response to motion to dismiss. For the reasons stated
below, Respondent's application is denied.
The General Counsel's motion to dismiss is premised
primarily on an argument that the General Counsel was
substantially justified in issuing the complaint. Secondari-
ly, the General Counsel argues that Respondent is not
entitled to fees incurred prior to the date of the issuance
of the complaint. Respondent argues that the General
271 NLRB No. 164
Counsel's answer is improper because it attached a copy
of a letter purportedly served by Respondent on the
General Counsel during the investigation of the case
wherein Respondent refused to cooperate with the inves-
tigation. Respondent argues that the General Counsel be
ordered to file an appropriate answer excising what it
contends is not properly part of the record. I find it un-
necessary to resolve the issue of whether or not that
letter ought to be excised because my ultimate decision is
not affected by the existence or nonexistence of such a
letter, and it would be too time-consuming and nonpro-
ductive to order a refiling of an answer.
Respondent raises several procedural arguments as to
whether or not the General Counsel appropriately raises
the issue of substantial justification by way of a motion
to dismiss. With some cogency, Respondent argues that
there is only one issue to resolve and that is the issue of
substantial justification. It argues that the General Coun-
sel appears to be attempting to file two "answers," and
urges that the General Counsel's motion to dismiss be
treated as an answer in order to expedite the proceeding
and eliminate unnecessary costs.
In agreement with Respondent, I conclude that the ar-
gument of substantial justification constitutes an affirma-
tive defense which runs to the merit of the claim. In -lr-
ther agreement with Respondent, I conclude that it
would unnecessarily compound the expenses of this pro-
ceeding to dismiss the motion and to direct an answer.
Rather, I will construe the General Counsel's motion to
constitute its answer. However, contrary to Respondent,
I conclude that the General Counsel must prevail in its
affirmative defense of substantial justification.
Section 504(a)(1) of the EAJA provides that an award
shall be made unless the position of the agency as a party
to the proceeding was substantially justified or special
circumstances make an award unjust. The Board has
stated that the legislative history characterized "substan-
tially justified" as a test of reasonableness and that where
the "Government can show that it had reasonable basis,
both in law and fact, no award will be made. l The
burden of proof that the Government's position was sub-
stantially justified rests with the General Counsel. How-
ever, unreasonableness is not necessarily presumed by the
loss of the Government's case, nor does "substantial jus-
tification" presuppose that the Government's decision to
litigate was premised on a substantial probability of pre-
vailing. 2 Furthermore, the establishment of a prima facie
case is not deemed by the Board to be a prerequisite to
reasonableness in law and fact.3 The statutory exception
of "special circumstances" was intended to allow the
Government to advance "in good faith the novel but
credible extensions and interpretations of the law that
I Enerhaul. Inc., 263 NLRB 890 (1982), revd 710 F.2d 748 (11th Cir.
1983). The court held that the General Counsel was not substantially jus-
tified in fact or law as held by that circuit, notwithstanding supporting
Board precedent. There is no contention herein that General Counsel's
position was in clear contravention of precedent peculiar to this circuit.
2 S. Rep. No. 96-253, 96th Cong., Ist Sess. 6-7, 14-15 (1979); H.R.
Rep. No. 96-1418, 96th Cong., 2d Sess. 10-11 (1980), Spencer v. NLRB,
715 F 2d 539 (D.C. Cir. 1983).
3 Enerhaul, supra. Jim's Big M, 266 NLRB 665 fn. 1 (1983).
1032
V. B. FABRICATORS
often underlie vigorous enforcement efforts," and to liti-
gate a "close question of law or fact."4
My decision in the instant case was premised on a res-
olution of credibility between the General Counsel's wit-
ness and Respondent's witnesses, i.e., whether the partici-
pants in contract negotiations had agreed on a final and
binding collective-bargaining agreement, or whether em-
ployee ratification of the collective-bargaining agreement
had been made a precondition to such agreement. That
determination required an analysis of the testimony of
the witnesses, i.e., direct and cross-examination as well as
consideration of their demeanor which as I stated in the
decision "tips the balance" in favor of Respondent's wit-
nesses. It did not appear from the face of documentary
evidence alone, or form pretrial affidavits, that the Gen-
eral Counsel's witness was inherently unbelievable.
4 S. Rep. 96-253, supra, at 7; H. Rep. 96-1418, supra; 126 Cong.Rec.
H10226 (daily ed., October 1, 1980).
Therefore, assuming that Respondent had cooperated
with the investigation of this case and had submitted
contradictory affidavits, it is clear that a resolution of
credibility in an ex parte manner by the General Counsel
would not be feasible.
In view of the foregoing analysis, I cannot find that
the General Counsel was not substantially justified in
going forward with this matter. It is therefore not neces-
sary to consider the General Counsel's secondary argu-
ment as to precomplaint fees.5
ORDER
It is hereby ordered that the application be dismissed.
I 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
1033