R & K Caterers, Inc.

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R & K Caterers, Inc. and Local Union 274, a/w Hotel Employees and Restaurant Employees International Union, AFL-CIO. Case 4-CA- 13726(E) 1 November 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 8 May 1985 Administrative Law Judge John H. West issued the attached supplemental decision. The Applicant filed exceptions and a supporting brief, and the General Counsel filed an answering 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, i 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 is denied. 1 We find that the General Counsel was "substantially justified" under the Equal Access to Justice Act, as amended, in issuing and prosecuting the unfair labor practice complaint in this proceeding. We believe that Congress, in amending the Act, did not alter, but merely clarified, the definition of "substantially justified," which means more than "mere rea- sonableness " H R Rep 99-120 at 9 (1985). SUPPLEMENTAL DECISION (Equal Access to Justice Act) JOHN H. WEST, Administrative Law Judge . By order entered 17 January 1985 , pursuant to Section 102.148(b) of the Rules and Regulations of the National Labor Rela- tions Board (Board), Respondent's application for award of attorney fees and expenses' in the above -entitled matter was referred to me by the Board for appropriate action. My 27 April 1984 decision dismissing the complaint was adopted by the Board by Order dated 14 December 1984.2 The above-described application , filed 10 January 1985, seeks attorney fees and expenses in the amount of 1 Included was a motion to withhold information The submission was made pursuant to the Equal Access to Justice Act, Pub L 96-481, 94 Stat 2325 ( 1980), and Sec 102 143 of the Board's Rules and Regulations. 2 The Board concluded that in light of its decision to dismiss the com- plaint it was unnecessary to pass on Respondent 's exception to my refusal to reach the contention that the recognition clause in the proposed con- tract was unlawful under Sec 8 (e) of the National Labor Relations Act (Act) $12,981.13.3 Also, as noted supra, Applicant filed a motion to withhold from public disclosure information regarding its net worth contending that to make this fi- nancial information, which was submitted in a sealed en- velope, available to public disclosure would adversely impact Applicant's bargaining position in negotiations with the Union and would adversely affect Applicant's competitive relationship with other kosher caterers. The General Counsel filed an opposition to the motion to withhold information from public disclosure contend- ing that the motion should be denied since Respondent Applicant fails to advance any extraordinary reasons why information regarding its assets, net worth, and li- abilities, should not be disclosed, and Respondent's situa- tion is not so unique as to warrant withholding informa- tion. Also, the General Counsel filed a motion to dismiss the application for attorney fees and expenses contending that Respondent has not established its eligibility for an award in that its application fails to state whether there are affiliates and subsidiaries; that Respondent seeks to recover attorney fees in excess of the amount specified in the Rules which specifically state that "no amount for at- torney fees under these rules may exceed $75 per hour"; and that the General Counsel's position was substantially justified in that if the credibility resolutions had favored the General Counsel, it would follow, that Respondent violated the Act in refusing to execute the involved writ- ten contract.4 Applicant then filed a response to the above-described motion to dismiss, and also Applicant filed a motion to strike the General Counsel's opposition to withhold in- formation from public disclosure.5 In the latter, Appli- cant contends that the Board's Rules and Regulations do not permit such a response from the General Counsel; that "[c]learly, the Rules do not require that an applicant show `extraordinary reasons' for the requested nondisclo- sure; nor should disclosure be mandated in all but `unique' situations"; and that [t]o require an applicant to show "extraordinary" or "unique" circumstances to keep his financial affairs from being made public would be an extreme disin- centive to a small business in a highly competitive market to file an action under the EAJA, and thus would run afoul of the congressional intent to en- courage actions when agencies take unreasonable positions. In the former, Applicant states that "it has fewer than 500 employees and that at `all times material herein Ap- plicant's net worth including any affiliated organizations did not exceed $5,000,000."' (Emphasis in original.) Ad- ditionally, Applicant indicates that if more detailed infor- mation is necessary regarding affiliates or subsidiaries, it will provide the requested information. Regarding the at- 3 The attorney fees were figured at a cost of $80 an hour 4 The General Counsel specifically preserves its right to file a more detailed answer if its motion to dismiss is denied. 5 Upon request of counsel for the Applicant, the time for filing a re- sponse was extended to March 18, 1985 277 NLRB No. 2 R & K CATERERS 261 torney's hourly fee, Applicant indicates that it would not resist a $75 per hour award, and that this is not a proper basis for a motion to dismiss the application. And with respect to whether the General Counsel's position was substantially justified, Applicant contends that the Gen- eral Counsel had not proved that its position was sub- stantially justified in law and in fact in that the credibil- ity issue of whether there was a meeting of the minds was not crucial nor did the case turn on its resolution for the contract was unlawful on its face and the interpreta- tion the Union was pressing was also unlawful. The Equal Access to Justice Act provides for an award of fees and expenses to eligible parties who pre- vail in litigation before administration agencies , unless the government can establish that its position in the liti- gation was "substantially justified." The Act nowhere defines that term. The Act's legislative history, however, establishes that the standard "is essentially one of reason- ableness" and not to be equated with "a substantial prob- ability of prevailing." S. Rep. 96-253, 96th Cong., 1st Sess. 6-7 (1979); H.R. Rep. 96-1418, 96th Cong., 2d Sess. 10-11 (1980). To decide this case it was necessary to resolve credi- bility issues regarding whether in fact there was a con- sciously arrived at understanding. As noted supra, in view of those resolutions it was not necessary to treat the matter of whether the recognition clause in the pro- posed contract is unlawful under Section 8(e) of the Act. Whether the proposed contract is unlawful is a substan- tial question in that article I of the proposed contract read in its entirety does not appear to present a matter of law susceptible to resolution by the General Counsel without a hearing. The position taken by the General Counsel was not unreasonable. Therefore, in my opinion the General Counsel was substantially justified in going forward with this matters ORDER? IT IS ORDERED that the Application be, and it is hereby, dismissed. 6 In view of this determination it is unnecessary to rule on Applicant's above-described motion. 7 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.