University Of New Haven

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD University of New Haven and University of New Haven Board of Faculty Welfare, Local No. 3956 C.S.F.T.-A.F.T. Cases 39-CA-23(E), 39- CA-181(E), and 39-CA- 183(E) 14 April 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 15 March 1984 Administrative Law Judge William A. Gershuny issued the attached supple- mental decision. The General Counsel filed excep- tions and a supporting brief, and the Applicant filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consist- ent with this Supplemental Decision and Order. On 26 August 1983 the Board issued an Order dismissing the complaint in the underlying unfair labor practice case.' The Applicant applied for an award of attorney's fees and expenses in this case pursuant to the Equal Access to Justice Act (EAJA).2 The judge found that the General Coun- sel's position in the underlying case was not "sub- stantially justified" and that no "special circum- stances made an award unjust" within the meaning of EAJA. Accordingly, the judge recommended that the application be granted. We disagree. The General Counsel's consolidated complaint alleged that the Applicant/University violated Sec- tion 8(a)(5) of the Act by, among other acts, with- drawing recognition from the Charging Party/- Union.3 The Union had been certified as the exclu- sive bargaining representative of the University's full-time faculty members several years earlier. The University withdrew recognition immediately after the Supreme Court issued its opinion in NLRB v. Yeshiva University.4 Relying on Yeshiva, the Univer- 1 267 NLRB 939 (1983) 2 5 U S C § 504 (1982), amended by Pub L No 99-80, 99 Stat 183 (Aug 5, 1985) We believe that Congress, in revising the Equal Access to Justice Act through the 1985 amendments, did not alter, but merely clari- fied, the definition of "substantially justified " 3 The consolidated complaint also alleged that the University violated Sec 8(aX5) by refusing to furnish certain information and by unilaterally granting certain benefits and Sec 8(a)(1) by refusing to recognize the method by which the Union elected its members to the University's tenure and promotion committee 4 444 U S 672 (1980) sity asserted that it lawfully withdrew recognition because its faculty members are not "employees" within the meaning of Section 2(3) of the Act since they are managerial employees. The judge agreed with this assertion based on his finding that the fac- ulty effectively controls many areas of management policy. Apart from Yeshiva considerations, the judge found that the Union is not a "labor organi- zation" under Section 2(5) because of its "constitu- tional responsibility" to hear and determine griev- ances on behalf of the University. The Board adopted the judge's recommendation to dismiss the complaint on the Yeshiva basis only. In adopting the judge on this basis, we were care- ful to note that the judge had ignored certain un- contradicted evidence and had failed to resolve issues involving certain other conflicting evidence. Based on our review of the entire record, we agreed that the faculty has substantial authority to make effective recommendations on management policy, relying on evidence that the faculty possess- es authority to make effective recommendations in the areas of promotion, sabbatical leave, and hiring. In light of our resolution of the Yeshiva issue, we found it unnecessary to pass on the judge's conclu- sion that the Union is not a labor organization under the Act.5 EAJA provides for an award of certain expenses to the prevailing party against an administrative agency, unless the agency finds that the position of the Government was "substantially justified." Al- though EAJA is silent on the meaning of "substan- tially justified," Congress has recently made clear that it means more than "mere reasonableness."6 Based on our review of this case, we conclude that the General Counsel's position was substantially justified both in law and in fact. Whether the General Counsel's position was sub- stantially justified turns essentially on how clearly the University's full-time faculty are managerial employees under Yeshiva. Significant differences exist between the pervasive faculty control over management policy found at Yeshiva University and the extent of faculty control at the University of New Haven. Even assuming that the New Haven faculty members effectively control each policy area the judge found they control, there remain numerous additional areas which the Yeshi- va faculty controlled.7 Furthermore, several fac- S Contrary to the judge's statement in sec 3 of his supplemental deci- sion, the Board did not pass on his findings of fact with respect to the Union's status as a labor organization 6 H R Rep No 99-120, 99th Cong, 1st Sess 9 (1985) r Those areas involving academic concerns include the grading system and academic calendars Those areas beyond strictly academic concerns include tuition, enrollment levels, student absence policies, school loca- tions, and faculty terminations 444 U.S at 676-677 279 NLRB No. 43 UNIVERSITY OF NEW HAVEN tors suggesting an absence of managerial status ex- isted at New Haven but were not present at Yeshi- va. These include a hierarchical decision -making network8 and a history of collective bargaining.9 Thus, Yeshiva is not so factually identical that its holding is conclusive of the status of the New Haven faculty. In addition, the conflicting evidence regarding faculty influence on the University's policies neces- sarily raised credibility issues which required reso- lution by an administrative law judge. For exam- ple, University Provost Alex Sommers testified ex- tensively regarding faculty control over the Uni- versity's policy on admission standards, curriculum, and faculty hiring and promotion . The General Counsel sought to discredit Sommers' testimony through several allegedly contradictory documents. If the judge had been persuaded to discredit Som- mers, the ultimate outcome of the case might have been significantly influenced . 10 This and other areas of conflicting evidence demonstrate that the case turned in part on credibility issues properly submitted to an administrative law judge for deter- mination.1 1 The legislative history of EAJA admonishes that the Government's failure to win does not raise a presumption that its position was not substantially justified . 12 It further cautions that the standard does not require that the Government establish "that its decision to litigate was based on a substan- tially probability of prevailing ." 13 This was a close case and the General Counsel 's position, although not prevailing, was substantially justified both in law and in fact.14 b The line of authority at the University runs from the board of trust- ees down to the president and provost , deans, associate deans, division directors, and department chairmen. The presence of this hierarchical network is relevant to whether the University operates on a pyramidal basis typical of the corporate model in which upper level management effectively controls the employer's policies See New York Medical Col- lege, 263 NLRB 903, 904 (1982), Montefiore Hospital, 261 NLRB 569, 570 (1982) s The Union was certified as the exclusive collective- bargaining repre- sentative of the University's full-time faculty members on 17 February 1976 The parties negotiated a collective -bargaining agreement effective from September 1976 to 31 August 1979 The University withdrew rec- ognition on 7 March 1980 i° The judge states in sec 3 of his supplemental decision that there were no credibility issues except in three relatively immaterial areas of conflicting evidence The judge erroneously equates what he apparently concluded were easily resolved credibility issues with an absence of credibility issues Despite the conflicting evidence of numerous witnesses, the judge nowhere explicitly mentions in his decision a single credibility resolution or the testimony of any witness i i See SME Cement, 267 NLRB 763 (1983) 12 S Rep No 96-253, 96th Cong, 1st Sess 7 (1980), HR Rep No 96-1418, 96th Cong, 2d Sess 11 (1980) i s Id 14 The General Counsel tried and briefed the case at a time when Ye- shiva had recently transformed the law regarding the managerial status of faculty members In deciding to issue a complaint and proceed with the 'ase the General Counsel was faced with unsettled case law and few idelines to direct him These circumstances provide an additional basis 295 ORDER The application of the Applicant, University of New Haven, West Haven, Connecticut, for an award under the Equal Access to Justice Act is dismissed. for concluding that the General Counsel's position was adequately sup- ported Lauritzen v. Secretary of the Navy, 546 F Supp 1221, 1226 (C D Cal 1982) Cf South Oregon Citizens Against Toxic Spray v Wolf 556 FSupp 155, 157 (D Ore. 1983), Midwest Research Institute v US, 554 F Supp 1379, 1392 (W.D Mo 1983) The judge suggests in sec 3 of his supplemental decision that the Gen- eral Counsel could have found adequate guidance in University of Albu- querque, Case 28-UC-106 (Mar 16, 1981), which the Board issued imme- diately prior to the hearing The Board did not publish this decision, which merely affirmed without comment the Regional Director 's clanfi- cation of a bargaining unit pursuant to Yeshiva Thus, the General Coun- sel could not reasonably have relied on this decision as guiding prece- dent The General Counsel's brief in support of exceptions appears to allege that the Applicant may have misstated the number of its employees on the issuance date of the original complaint , and the judge therefore im- properly held in the absence of a hearing that the Applicant satisfied the jurisdictional standards of EAJA. See Sec 102.143 of the Board 's Rules and Regulations The General Counsel also contends that the judge used an incorrect eligibility date The record is inadequate to resolve the issue raised by this allegation In light of our determination that the General Counsel's position in the underlying case was substantially justified, and in order to prevent further delay in the proceedings and to avoid need- lessly imposing additional costs on the Applicant, we shall not remand the case for resolution of this issue. Jonathan B. Kreisberg, Esq., for the General Counsel. Robert B. Snow, Jr. and William J. Chickering (Wiggin & Dana), of New Haven, Connecticut, for the Respond- ent-Applicant. SUPPLEMENTAL DECISION Equal Access to Justice Act WILLIAM A. GERSHUNY, Administrative Law Judge. Applicant seeks fees and expenses pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, for its successful defense of a Yeshiva University-type unfair labor practice consolidated complaint. The complaint was dismissed in its entirity by a decision of July 12, 1982, on grounds that each full-time faculty member was a managerial em- ployee and that the Board of Faculty Welfare (BFW) was not a labor organization for that reason and for the further reason that it heard and decided faculty and stu- dent grievances on behalf of the University. The Board adopted the decision on August 26, 1983, 267 NLRB 939, but only on the Yeshiva basis, finding it unnecessary to pass on the conclusion that BFW's gnevance-handling responsibilities on behalf of the University preclude it from being a labor organization within the meaning of Sec. 2(5) of the Act. A number of issues are raised by the record in this proceeding: Whether the application adequately sets forth the number of employees. Whether the Act provides for the payment of fees and expenses incurred prior to the initiation of 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unfair labor practice proceeding and, in any event prior to the effective date of the Act. Whether the fees sought are reasonable and the services performed are identified with the requisite specificity. Whether the position of the General Counsel was substantially justified. Whether there exist such special circumstances as to make an award unjust. I. ADEQUACY OF APPLICATION AS TO NUMBER OF EMPLOYEES The application, as amended, is supported by an affida- vit of the University's secretary which asserts that pay- roll records closest to July 18, 1979, the date on which the original complaint was filed, the University had em- ployed at all of its locations a total of 355.5 full-time and part-time professional and nonprofessional employees. The General Counsel contends that the application is deficient for lack of specificity and that the date selected by Applicant was improper.1 29 CFR 102.147 requires that the application state the "number, category and work location of employees of the applicant." Here, the supporting affidavit lists, for "all" of its locations , six categories of full-time and part- time administrative, professional, clerical, and mainte- nance employees, and the number of employees in each category during the payroll period closest to the date of filing of the initial complaint. The General Counsel has requested an evidentiary hearing to put Applicant to its proof and has not sought to subpoena payroll records for the relevant period. 29 CFR 102.152. Where, as here, the underlying record already reflects the off-campus loca- tions of its many course offerings, the Applicant fairly meets the requirements of the Act by grouping its em- ployees into categories readily identifiable by exprienced labor counsel. The General Counsel's main thrust goes to the rele- vant date on which the number of employees are to be counted. 5 U.S.C. § 504(b)(1)(B) establishes that date as "the time the adversary adjudication was initiated." The Board's implementing regulation, 29 CFR 102.143(d), clarifies the statutory provision by providing for a "de- termination as of the date of the complaint in an unfair labor practice proceeding." Here, that date would be July 18, 1979, the date on which the first of the com- plaints was issued. That is the date utilized by Applicant. The General Counsel suggests, however, that this date is inappropriate. First, the initial complaint should not be used because that alleged only a refusal to provide infor- mation for bargaining, whereas the later complaint of December 18, 1980, alleged a broad refusal to recognize the bargaining agent. The General Counsel ignores the fact that the University's answer, as amended, raises the issue of its obligation to bargain in any respect and the further fact that this very issue was the one on which i Charges made by the General Counsel at pp 160 -162 of his memo- randum that the University "has conveniently excluded" certain employ- ee data, "has knowingly manipulated its records," has made a "deliberate attempt to exclude" certain data, and "has knowingly excluded" such in- formation, is stricken as unsupported except by rhetoric of counsel and as scandalous and impertinent Rules 11 and 12 (f), F R C.P Applicant prevailed below. Second, the General Coun- sel, ignoring the statutory language and without the aid of legislative history or judicial or administrative prece- dent, argues that the use of such a date in the case of a seasonal employer "would be totally illogical." (G.C. Memo. 160.) Such a contention, in the face of an unam- biguous statute, is properly made only to the Congress itself and not to the agency to whom shared enforcement responsibility has been delegated. Congress must be deemed to have known that work forces fluctuate in size among most employers and to have selected an arbitrary date which would simplify these collateral proceedings and avoid the time-consuming and burdensome task of determining an eligibility date on an ad hoc basis. I conclude that the application adequately sets forth the size of Applicant's work force. II. PERIOD OF ELIGIBLE FEES AND EXPENSES Two of the issues raised by the General Counsel's answer-recoverability of fees and expenses incurred prior to issuance of the initial unfair labor practice com- plaint and those incurred prior to October 1, 1981, the effective date of the Act-were disposed of by Order of November 2, 1983, denying the General Counsel's motion to dismiss as baseless in fact and in law. Because the General Counsel continues to ignore binding appel- late court precedent,2 as well as the fact that no claim is made for fees and expenses incurred prior to July 18, 1979, the date of issuance of the first complaint, no fur- ther discussion of the contentions is warranted. The significance, insofar as the issue of substantial jus- tification is concerned, of the General Counsel's refusal to take notice of relevant facts and to heed legal prece- dent in the courts is considered in section III, below. III. SUBSTANTIAL JUSTIFICATION FOR THE GENERAL COUNSEL'S POSITION In support of his recognized burden under EAJA of establishing "substantial justification" for initiating and proceeding with the consolidated complaint in this case, the General Counsel submits a 150-page argument, all but approximately 10-15 pages of which appear to be a cut-and-paste version of his brief to the Board in support of exceptions.3 The General Counsel correctly states the now familiar principles that the test of substantial justification is essen- tially one of reasonableness, that a probability of success need not be shown, and that there is no liability for fees under EAJA when advancing in good faith a close ques- 2 A decision of a court of appeals, unreversed by the United States Su- preme Court, is binding on administrative agencies, Ithaca College v NLRB, 633 F 2d 224 (2d Cir 1980), Allegheny General Hospital v NLRB 608 F 2d 965 (3d Cir 1979) Fees and expenses incurred prior to enact- ment of EAFA are recoverable Tyler Business Services v NLRB, 695 F 2d 73 (4th Cir 1982), rehearing denied February 7, 1983 The General Counsel did not cite or distinguish this decision 8 Recitations therein are the nature and extent of the precomplaint in- vestigation, and arguments based thereon, are stricken The General Counsel elected not to supplement the record in this collateral EAJ proceeding, by affidavit or otherwise, and counsel points to no oil place in the record as a whole where such information may be fr' UNIVERSITY OF NEW HAVEN 297 tion of law or fact. See, e.g., Eberhaul, Inc. v. NLRB, 710 F.2d 748 (11th Cir. 1983).4 More specifically, the General Counsel's contentions appear to be twofold: one, that the administrative law judge failed to resolve credibility issues whose existence originally had compelled the General Counsel to proceed with the complaints; and two, that it was reasonable to proceed given two facts: that case law at the time was limited solely to the Supreme Court's Yeshiva decision issued February 1980 and that "it was not until the middle of 1982, after the case had been fully litigated and briefed, that the Board issued any decisions interpreting Yeshiva." (G.C. Memo. 108.) (1) The General Counsel correctly asserts that, as a general rule, it is the responsibility of the administrative law judge within the administrative process to resolve credibility issues and that the General Counsel acts with substantial justification in proceeding to hearing with such issues. That principle, however, has no application here. One can, as I have done, scour the General Counsel's 100-page discussion of the facts in vain to find the word "credibility," or the identification of a credibility issue requiring resolution or an argument of counsel as to which witness or witnesses should have been credited. The fact of the matter is that, as the General Counsel must be deemed to concede by his constant references throughout to the "uncontradicted evidence," the materi- al facts simply were not in conflict. This proceeding thus was atypical of the unfair labor practice case whose ulti- mate decision turns on the factfinder's resolutions of the credibility issues. Here, for the most part, the disputed testimony related to the number of times faculty recom- mendations were rejected (e.g., 3 out of a 100, or 4) or the reasons for the administration's rejection. The materi- al facts bearing on the effectiveness of faculty authority were not in dispute before, during, or after the hearing. The General Counsel' s memorandum does , however, give footnote identification to three areas of conflicting evidence which warrant some discussion. At page 26, footnote 23, the General Counsel notes, without further argument, that the Provost's testimony relating to one of the 6 instances, out of 50-60, in which faculty recom- mendations were rejected by the administration was con- tradicted by other evidence of the particular job Appli- cant's qualifications. The General Counsel does not dis- pute the fact of rejection and does not suggest how this conflict materially impacts on the status issue. Again, at page 44, footnote 39, the General Counsel notes that the testimony of one faculty witness was contradicted by a business record which showed faculty opportunity to re- consider certain action. Unaltered, however, is the admit- ted fact that the faculty here rejected an administration proposal for bylaw changes and the General Counsel does not suggest the materiality of resolving this minor evidentiary conflict. And, finally, at page 78, footnote 60, The General Counsel gives only the Board citation to this case, ig- noring the fact of reversal , on other grounds, by the court of appeals 'his omission is ironic, because the basis for reversal and the award of s under EAJA was the General Counsel 's decision there to ignore ap- e authority to the contrary in that circuit and to proceed to ]tugs- - a consistently rejected theory of law the General Counsel notes, in connection with the redes- ignation of two departments, that the testimony of the Provost was uncorroborated in the one case and contra- dicted in the other. Nevertheless, the admitted facts are that the faculty overruled administration proposals to designate each a "school" and that the faculty's recom- mendation of divisional status for criminal justice was ap- proved. Again, the materiality of this conflict is not sug- gested. The General Counsel's contention here that his posi- tion was substantially justified because of the existence of credibility issues requiring resolution in the administra- tive hearing process, stripped of the rhetoric of counsel, is wholly without substance and is rejected. As noted above, the material facts of the case were not in dispute and were adopted by the Board with minimal supplementation. The significant differences between the two universities which the General Counsel now claims to have justified his pursuing this case, either were not presented to the Board or were deemed unworthy even of comment. Throughout the hearing state of this case, it appeared that counsel for the General Counsel was con- centrating so intently on the factual circumstances sur- rounding the exceptions, that he overlooked the broad, general practices which vested in the faculty effective control in so many areas of operation. As aptly charac- terized at page 7 of Applicant's response, "Counsel for General Counsel based his case on a few 'trees' but failed to recognize the entire 'forest' of reality." Athough Yeshiva represented a major change in the labor law status of faculty members, the General Counsel appeared throughout unwilling to accept the not unfamil- iar industrial concept, restated by the Supreme Court for the academic workplace, that a level of substantial em- ployee authority, short of absolute power, may satisfy the managerial employee test. Although the Court itself expressly disclaimed the application of its decision to every other conceivable academic setting, the General Counsel was not warranted in relitigating, at enormous expense to an important southern New England universi- ty, what in essence was a substantially identical factual record. One observation must be made concerning the substan- tial justification for the General Counsel's proceeding with the initial complaint, which alleged only a refusal to provide information essential to BFW's performance of its collective-bargaining responsibilities. The answer, filed by a University officer, did not raise a Yeshiva-type issue, despite the fact that the Court of Appeals for the Second Circuit already had issued its decision rejecting prior Board precedent. Thereafter, the Regional Director failed to bring this important bargaining issue to hearing, postponing each new hearing date without explanation until 1981, by which time the complaint was consolidat- ed with other charges directly raising the status issue. The record thus strongly suggests that the original case was "stayed" because of a recognition of the weakness of the General Counsel's position and the expectation that the original complaint would ultimately produce a Yeshi- va issue in any event. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If, as apparently contended by the General Counsel, he was substantially justified in proceeding with the con- solidated complaint, despite Yeshiva, until the Board gave its interpretation of that historic decision , the General Counsel need only have examined the Board 's order of March 26, 1981, in University of Albuquerque, 28-UC-106 (unpublished).5 Issued 1 month before commencement of the hearing in this case , the Order, signed by Chairman Fanning and Members Jenkins and Zimmerman , granted a request of the parties for review and stated, ".. . having carefully considered the record, exhibits and briefs on review, hereby affirms the Regional Director's clarification of the unit pursuant to NLRB v. Yeshiva University, 444 U.S. 672 (1980)." Of significance are the Regional Director's concise findings, at pages 3-14 of his decision, which reflect managerial status based on faculty involvement in the operation of that University not any greater than that of the faculty at the University of New Heaven. University of Albuquerque thus portended by 13 months the Board's first published decisions of April 1982 and should have caused the General Counsel to rec- ognize that his position here was without merit in fact and in law. Assuming, arguendo, that the Yeshiva issue here was a close issue of fact and law, there is yet a second, more compelling basis for rejecting the General Counsel's con- tention that his position throughout was substantially jus- tified-as the University's primary grievance-handling of- ficer in the case of student-faculty, faculty-faculty, and faculty-administration grievances, BFW acts as a bar- gaining representative of the University and is thus pre- cluded from being a "labor organization " within the meaning of Section 2(5) of the Act. Findings of fact in this connection, set forth at pages 4 and 8 of the judge's decision, were adopted by the Board which found it un- necessary to pass on the legal issue at that time in view of its disposition of the Yeshiva issue. Again, the material facts were in possession of Charging Party BFW and available to the General Counsel; again, the General Counsel appears inexplicably to have overlooked their effect on the Board's jurisdiction in the matter. Accordingly, I find and conclude that the General Counsel was not substantially justified in initiating and prosecuting this consolidated complaint. IV. REASONABLENESS OF FEES The General Counsel's contentions in this respect ap- parently are twofold : that the fee statement inadequately describes the services rendered and that fees are claimed for services performed by lawyers who did not enter their appearance and by nonlawyers. As to the former, Applicant's 4-page statement of serv- ices is typical of the computerized printout used by most large law firms for billing and other accounting pur- poses. It reflects the date of services, the name of the in- dividual performing those services, a description of serv- ices (e.g., research re motion to dismiss, interviewing witnesses, and telephone conference with counsel for the General Counsel) and the time spent for each such serv- 6 Both the order and the Regional Director's decision it affirmed were widely circulated in academic and labor law circles ice. Expenses (e.g., transcripts, meals, parking, and travel expenses) are itemized by date and amount. The applica- tion seeks $47,387.25 for legal services rendered by attor- neys Snow and Chickering and $4676.06 for the services of paralegals and for out-of-pocket expenses, through October 1982, when its brief was filed with the Board. Of course, no fees and expenses incurred in connection with this EAJA proceeding have yet been added to the application as originally filed. The statement of services submitted by Applicant is, in my experience, reasonable and in keeping with modern acceptable law firm accounting practices, exceeds by far the detail customarily submitted to U.S. Department of Labor administrative law judges by prevailing counsel under the Longshoremen's and Harbor Workers' Com- pensation Act, gives the factfinder an adequate basis for determining the relevancy and reasonableness of legal services performed, and more than fairly meets the re- quirements of the Act and the Board's implementing reg- ulations. Neither the Act nor the regulations limit recoverable fees to those services performed by counsel of record. Indeed, such a contention on its face is absurd. Protract- ed litigation such as this rarely is the responsibility of trial counsel-time constraints and the usually higher fees charged by trial counsel compel the use of support services by paralegals who remain in the background and by attorneys who silently sit "second chair" in the court- room so that they may better perform their support serv- ices during the long evening hours after each court ses- sion. In determining the reasonableness of the fees and ex- penses claimed by Applicant, I note that counsel for the General Counsel frequently was supported at the hearing by one or two additional attorneys as well as by counsel for the Charging Party, that precomplaint investigations often are conducted by persons other than trial counsel, and that the preparation, trial, and appeal of a case of this magnitude involves the services of the Regional Di- rector, regional attorney, and other senior attorneys in the General Counsel's office. Moreover, I take notice of the reputation of the law firm representing the Appli- cant, of the experience of its trial counsel and, based on my private practice experience, that prevailing fees for such firms rarely are less than the $75 maximum fixed by the Act. I have independently examined the fee state- ment in light of the voluminous record in this case (12 hearing days, hundreds of pages of posthearing briefs, supplemental briefs, and appeal briefs , 43 witnesses, and 190 exhibits.) and its 48-month to be perfectly reasonable for the conduct of such an administrative proceeding. V. SPECIAL CIRCUMSTANCES Section 504(a)(1) of the Act establishes a final impedi- ment to an award of fees and costs-where special cir- cumstances make an award unjust. The General Counsel contends, in essence, that just such circumstances are present here, for the reasons that the University chose to assert its statutory right, as clearly construed by the Si' preme Court, to be free of bargaining demands by full-time faculty by unilaterally withdrawing recogni UNIVERSITY OF NEW HAVEN 299 eo that it could "just as easily" have filed a unit clarification petition, which would have pitted University against fac- ulty in a hearing conducted under the auspices of the Re- gional Director; and that the General Counsel would thus have been exonorated from risks under EAJA, be- cause a unit clarification proceeding is not an adversary adjudication within the coverage of the Act. Of course, the General Counsel ignores a number of decisive factors: That neither the Act nor the Board's regulations preclude the course of action taken by the Universi- ty. That nowhere in this record is there a hint that the General Counsel invited the University to pro- ceed with a unit clarification proceeding. That it was the General Counsel who issued the original unfair labor practice complaint well before the University's withdrawal of recognition, raising an information-for-bargaining issue , and there is now no indication that this unfair labor practice complaint would have been withdrawn had a unit clarification proceeding been initiated by the Uni- versity. That the University, during the indefinite penden- cy of the unit clarification proceeding, would nev- ertheless have had to continue to bargain with the faculty, despite a clear decision from the Supreme Court to the contrary. That, had there been from the outset a proper evaluation and application of the known facts and the law, the General Counsel would have declined to proceed on the charges against the University. There is no merit to this contention. On the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 102.153 of the Board's Rules and Regulations, I issue the following"' ORDER IT IS RECOMMENDED that the application of University of New Haven for an award under the Equal Access to Justice Act be granted. IT IS FURTHER RECOMMENDED that the University of New Haven be awarded the sum of $47,387.25 for attor- neys fees and the additional sum $4676.06 for expenses. IT IS FURTHER RECOMMENDED that, pursuant to Sec- tion 102.152 of 29 CFR, Applicant may, within 20 days from the date hereof, file an additional statement of fees and expenses, if any, incurred to date in the preparation and prosecution of this application and that, within 10 days after service, the General Counsel may file a re- sponse. 6 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 1