The Brandeis School

836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Brandeis School and Dale Agata. Case 29-CA- 9476(E) 16 December 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 25 July 1984 Administrative - Law Judge Harold B. Lawrence issued the attached supple- mental decision. The Applicant filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief, and the Applicant filed a response to the General Counsel's cross-exceptions. 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 as modified. The Applicant has applied for an award of attor- ney's fees and expenses pursuant to the Equal Access to Justice Act (EAJA). In the attached de- cision, the judge found that the General Counsel's position with respect to certain 8(a)(3) complaint allegations was not substantially justified, but that the Applicant was not a "prevailing party" with re- spect to other complaint allegations settled in an in- formal settlement agreement. Accordingly, he rec- ommended that the Applicant be reimbursed for certain specified fees incurred in the underlying unfair labor practice proceeding at $65 per hour, the, hourly rate charged the Applicant by its attor- neys in the underlying case. The judge also recom- mended that the Applicant be reimbursed for ex- penses in the unfair labor practice proceeding at the rate of $1 for each compensable hour of attor- ney's time expended, and that the Applicant not be reimbursed for attorney's fees and expenses in- curred in preparing the EAJA application. The Applicant contends, inter alia, that it should be compensated for all fees and expenses incurred during the unfair labor practice proceeding because it prevailed regarding the entire case; that it should recover all fees incurred during the EAJA pro- ceeding; and that the judge erred in limiting its re- covery to $65 per hour for attorney's time and $1 per hour for expenses. The General Counsel ex- cepts, inter alia, to the judge's finding that she was not substantially justified in pursuing the 8(a)(3) al- legations. She argues that the Applicant's award should be denied because the judge's ground for dismissing some of the complaint allegations-that 287 NLRB No. 85 the Brandeis Teachers Association (Association) failed to comply with, the notice requirements of Section 8(d) of the Act-was an affirmative de- fense that could be waived; because the Applicant did not cooperate with the General Counsel's in- vestigation of the charge; and because the Appli- cant, by offering the strikers reinstatement when it should have known of the Association's failure to comply with the notice requirements of Section 8(d) of the Act, condoned the Association's failure to comply with the 8(d) notice requirements. The General Counsel also contends that the Applicant should not be compensated for the cost incurred in connection with the preparation of its motion to dismiss the entire complaint. Briefly stated, the relevant facts of the underly- ing unfair labor practice proceeding are as follows. On 15 September 1981 the Association, the recog- nized collective-bargaining agent of the Applicant's teachers, commenced a strike but never filed the notices required by Section 8(d) of the Act.' Ac- cordingly, pursuant to Section 8(d), the strikers, in- cluding the Charging Parties, lost their status as employees for the purpose of Section 8 of the Act. The General Counsel learned of the Association's failure to send the notice to the mediation services approximately 2 weeks after the issuance of the 12 April 1982 complaint, which alleged, inter alia, that the Applicant had violated Section 8(a)(3) of the Act by refusing to reinstate the Charging Parties after they had made unconditional offers to return to work. The complaint also alleged, inter alia, that the Applicant had unlawfully refused to bargain with the Association in a number of respects. In November 1982, during the hearing in the unfair labor practice proceeding, the, Applicant learned of the Association's failure to send the no- tices to the mediation services required by Section 8(d)(3) of the Act. The Applicant moved for dis- missal of the entire complaint, and the General Counsel subsequently moved for the dismissal of those portions of the complaint related to the 8(a)(3) allegations. The judge granted the General Counsel's motion and denied the Applicant's motion, and the remaining complaint allegations were ultimately settled in an informal settlement agreement. The Charging Parties' and Applicant's requests for special permission to appeal the judge's order were denied by the Board on 2 March 1983. ' Sec 8(d)(1), (3), and (4) of the Act provide that a party desiring to terminate or modify a bargaining agreement must serve notices on the other party to the contract (Sec 8(d)(1)), offer to meet and confer to ne- gotiate a new contract or a modified contract (Sec 8(d) (2)), notify the Federal Mediation and Conciliation Service and the state mediation serv- ice of the dispute (Sec 8(d)(3)), and that the existing contract continues in full force and effect for 60 days after notice is given (Sec 8(d)(4)) BRANDEIS SCHOOL 837 With the above as background, we make the fol- lowing determinations. - 1. We agree with the judge's conclusion that the General Counsel was not substantially justified in continuing to pursue the 8(a)(3) allegations after learning that the Association had not complied with the requirements of Section 8(d).2 The Gener- al Counsel learned of the Association's failure to comply with Section 8(d) and the striking employ- ees' loss of employee status under' Section 8 of the Act on 27 April 1982, but continued to allege that the Applicant had unlawfully refused to reinstate the strikers until the Applicant itself raised the 8(d) defense at hearing on 8 November 1982. We find no merit in the General Counsel's argument that because the failure to comply with Section 8(d) is an affirmative defense,3 she was justified in con- tinuing her prosecution of the 8(a)(3) allegations until the Applicant asserted the defense. In this regard, we find relevant the following comments of the judge in Debolt Transfer, 271 NLRB 299, 303 fn. 7 (1984), which were adopted by the Board: The General Counsel cannot prove its justifi- cation . . . merely by relying on its prima facie case, no matter how dazzling. It has, I believe, a right and also duty to examine [the information obtained during the investigation] for patent defenses. . . . While "substantial justification" is not dependent. on the General Counsel's proof of a prima facie case, Ener- haul, Inc., 263 NLRB 890 (1982) [reversed on other grounds, 710 F.2d 748 (11th Cir. 1983)], the existence of a prima facie case does not ipso facto, demonstrate "substantial justifica- tion." In 'the instant case, the General Counsel contin- ued to prosecute allegations on which .she knew or should have known she could not prevail if the Applicant discovered that the 8(d)(3) notices had not been sent to the mediation services. The Gen- 2 The Board's Rules and Regulations specify that an applicant may re- ceive an award for fees and expenses incurred in connection with an ad- versary adjudication if it prevailed in that proceeding or in a significant and discrete substantive portion of that proceeding unless the General Counsel proves that the position in the unfair labor practice case, over which the applicant has prevailed, was substantially justified Secs 102 143(b), 102 144(a) The judge's decision here issued prior to the 1985 amendments to EAJA Subsequent to those amendments , effective 15 May 1986, the Board revised Sec 102 144(a) regarding substantial justifi- cation That section now states (51 Fed Reg 17732 (1986)) An eligible applicant may receive an award for fees and expenses in- curred in connection with an adversary adjudication or in connec- tion with a significant and discrete substantive portion of that pro- ceeding , unless the position of the General Counsel over which the applicant had prevailed was substantially justified The burden of proof that an award should not be made to an eligible applicant is on the General Counsel, who may avoid an award by showing that the General Counsel's position in the proceeding was substantially justi- fied See Murco, Inc, 266 NLRB 1175 (1983) eral Counsel claims, however, that an issue existed concerning whether the Applicant had waived the 8(d) defense., She argues that the Association had failed to file a notice with the Applicant as called for by Section 8(d)(1), yet the Applicant had not raised this defense. Accordingly, the ' General Counsel-asserts that a legal issue existed concerning whether the .Applicant was waiving its entire 8(d) defense. But the General Counsel has not demon- strated the inaccuracy ^of the judge's findings that employers do not normally receive copies of strike notices filed pursuant to Section 8(d)(3) of the Act and that this particular Applicant did not, in fact, discover until November 1982 that the notices had not been sent. Given these circumstances, we reject the General Counsel's view that any waiver ques- tion existed regarding the failure to serve the 8(d)(3) notice. We also reject the General Counsel's claim that the Applicant's attempt to reemploy certain of the strikers raised the issue of whether the Applicant had condoned the striker's misconduct. Strike ac- tivity in contravention of Section 8(d) cannot legal- ly be condoned.4 Lastly, we reject the General Counsel's arguments that she was substantially jus- tified, or that special circumstances warrant no award, based on her claim of the Applicant's al- leged lack of cooperation in the investigation prior to the complaint's issuance. The Applicant's failure to inform the Region that it had not received an 8(d) notice, without 'more, is clearly insufficient grounds for the conclusion that the General Coun- sel seeks. We thus agree with the judge's conclu- sion that the General Counsel was not substantially justified in continuing to litigate the 8(a)(3) allega- tions of the case after 27 April 1982. 2. The Applicant raises a number of contentions regarding the amount of attorney's fees and ex- penses to which it is entitled in connection with both the underlying unfair labor practices case and the instant EAJA proceeding. We adopt the judge's conclusion that the Applicant is not entitled to recover fees and expenses incurred defending those complaint allegations that became the subject of the informal settlement agreement. Thus, under Section 102.143(b) of the Board's Rules and Regu- lations, the 8(a)(1) and (5) allegations were "signifi- cant and discrete substantive portion[s]" of the un- derlying case, and we find that, contrary to the Applicant's contention, the Applicant did not pre- vail with respect to those allegations. This is so be- cause in the settlement agreement, the Applicant agreed to post and to abide by the terms of a 4 Clearfield Cheese Co, 106 NLRB 417, 423 (1953) (dictum), enfd as modified 213 F 2d 70 (3d Cir 1954) 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD notice requiring it, inter alia,'not to refuse to bar- gain with the Association; -not to offer or promise 11 wage increases or other benefits to its employees in excess of those offered to any, duly, designated labor organization; not to refuse to supply relevant financial information to any duly selected bargain- ing agent; and-not to' "in any other manner" inter- fere with, restrain, or coerce its, employees, in the exercise of their Section 7. rights; and affirmatively to bargain with the Association. Although the set- tlement agreement included a nonadmission clause and a clause in which the Applicant did not admit that it was subject to the Board's jurisdiction, we are satisfied that this settlement did not make the Applicant a "prevailing Party" within the meaning of EAJA. Therefore, the Applicant is not entitled to recover fees and expenses in connection with its defense of these settled allegations.5 3. The Applicant further contends that the judge erred in limiting its recovery for attorney's fees to $65 per hour. We agree. The Applicant asserts that the fees ordinarily charged by its attorneys exceed $75 . per hour, the maximum rate recoverable from the Board pursuant, to EAJA,6 but that the Appli- cant was charged, a reduced rate because it, is an educational institution. The judge found that al= though the attorneys' experience justified compen- sation at the rate of $75 per hour, the Applicant's recovery should be limited to the $65 per hour ac- tually billed. In doing' so, the judge failed to take into account, Section 102.145(a) of the Board's Rules and,Regulations, which-States, "Award will be based on rates customarily charged by ; . . at- torneys . . . even if the services were made avail- able without charge or at' a reduced rate to the ap- plicant." Based on the Board's Rules and Regula- tion's-clear language, we will award the Applicant $75 for every compensable hour of attorney's time. 4. The Applicant also excepts to the judge's con- clusion that the Applicant 'is not entitled to recover fees ,arid expenses incurred in connection with' the preparation of the EAJA' application. The judge, based his conclusion on the application's inclusion of extensive matters found not to be compensable and on the Applicant's failure to respond adequate- ly to the judge's 17 October 1983 order requiring further information regarding work performed on the 8(a)(3) aspects of the unfair'labor practice pro- ceeding. However, an examination of the Appli- cant's brief in support of its EAJA application dis- closes that virtually the entire document develops the argument to support the conclusion that the 5 See generally Stonehouse Coal Co, 276 NLRB 1258 (1985), R C Sie- bert, Inc, 277 NLRB 599 (1985) 6 See 5 U S C § 504(b)(1)(A), Sec 102 145(b) of Board's Rules and Regulations Applicant is entitled to, an award for fees and ex- penses in connection with the dismissed complaint allegations, i.e., that-the General Counsel 'was not substantially justified in pursuing the case in light of-the failure by the Association to file the notices required by Section 8(d) of'the Act. Consequently, we find it unwarranted and unnecessary to appor- tion hours documented by the Applicant as having been spent preparing the EAJA application - be- tween compensable and noncompensable matters. Moreover, the time records appended to the Appli- cant's EAJA application of 31 March 1983, taken together with the relevant portions of its affidavit in response to the judge's order of 17 October 1983, permit'the calculation of an award on a rea- sonably informed and accurate basis. Indeed, the judge himself was able to make such a calculation. He based his award on timesheet entries that were either explicitly labeled as relating to the dismissed allegations or to the motion to dismiss, or that he reasonably could infer were related to these mat- ters., Therefore, we will award the' Applicant $1248.75 for fees incurred in connection with the EAJA proceedings in this 'case for 16.65 hours, adequately documented 'as relating to work on ' the EAJA application: 5. Finally, the judge concluded that the Appli- cant's recovery for expenses incurred during the underlying unfair labor practice 'proceeding should be limited to $1 for each compensable hour of at= torney's time because although it must have in- curred out-of-pocket expenses, the Applicant failed to specify which expenses were incurred in connec- tion with those portions of the complaint that the General Counsel pursued without substantial justifi- cation. 'The Applicant excepts, contending that it should be compensated for all expenses incurred in the underlying proceeding. With the following ex- ception, we agree with the judge's finding that the Applicant failed to identify its compensable ex- penses. On 17 October 1983 the judge ordered the Ap- plicant to submit to him, inter alia,,"the amount of any expenses incurred on [each date on which each attorney performed work related to the dismissed complaint allegations] stating the relation of [the expenses] to the [dismissed allegations] and the ne- cessity for such expenditure." Among its claims for expenses, the Applicant's attorneys submitted a claim for $43.90 in Western Union charges. In the affidavit submitted in response to the judge's order of 17 October 1983, the Applicant's attorneys stated that a telegram was sent to the Federal Me- diation and Conciliation Service on 2 November 1983 to confirm that no record existed showing that the Association had filed the notice required BRANDEIS SCHOOL 839 under Section 8(d). The Applicant's time records reveal an entry for a telegram on that date. Ac- cordingly, we find that the Applicant's submissions, taken together, permit a determination that this ex- penditure for telegrams is a compensable expense incurred during the unfair labor practice proceed- ing. However, we reverse the judge's general award of $1 for expenses for each compensable hour of attorney's time because, as he found, state- ments of disbursement do not apportion them to the compensable part of the case. In such circum- stances, the record provided no support for the use of this figure. The judge's discretion to set such a figure must have some basis in the record and we can find none for the judge's setting $1 per hour as the basis for reimbursement here. Accordingly, the Applicant will be reimbursed $43.90 for expenses incurred in the underlying unfair labor practice proceeding. Thus, the Applicant will be reimbursed for ade- quately documented attorney's fees and expenses 'incurred in connection with the issues on which it prevailed in the unfair labor practice case, i.e., the 8(a)(3) allegations. We adopt the judge's finding that only 18.05 hours of attorney's time were ade- quately documented as having been spent on the relevant portions of the underlying case.? Further- more, we find that the claim, contained in the at- torney's 11 August 1983 bill to the Applicant, for 16.65 hours spent on the EAJA proceeding is rea- sonable and well supported by documentation. Thus, at the rate of $75 per hour, as discussed above, we will award $2602.50 to the Applicant and $43.90 for expenses, for a total of $2646.40. In addition, if the Applicant has incurred but not yet submitted further fees and expenses in connection with those portions of its submission in support of the EAJA application that relate to complaint alle- gations dismissed as a result of the Association's failure to file the notices required by Section 8(d) of the Act, they will be compensated on the sub- mission of an adequately documented request.8 ' Contrary to the General Counsel's contention, we find that time spent by the Applicant's attorneys on the motion to dismiss the complaint was reasonable, as part of its normal litigation costs 8 We note that this case differs from Crandon Health Care Center, 280 NLRB No 28 (June 9, 1986) [vacated September 16, 1986], in that the Applicant here filed an initial application for fees and expenses including those attendant to "preparation of motion for counsel fees" through the date the EAJA application was filed Before the judge issued his deci- sion, the Applicant filed a supplemental schedule for fees and expenses, seeking reimbursement for expenditures after the filing of the original re- quest Thus, the Applicant put all parties and the judge on notice that its application for fees and expenses would include fees and expenditures in connection with processing its EAJA application ORDER The National Labor Relations Board orders that the Applicant, the Brandeis School, Lawrence, New York, be awarded the sum of $2646.40, pursu- ant to its application for an award under the Equal Access to Justice Act, plus the additional fees and expenses incurred in connection with compensable portions of its EAJA application since the period covered by the Applicant's last submission.9 9 If the parties are unable to agree within a reasonable period of time concerning the amount of any fees and expenses incurred after the date of Applicant's most recent submission to which the Applicant is entitled in connection with the preparation and pursuit of the application, the Ap- plicant should submit to the judge a revised application for fees and ex- penses consistent with this Supplemental Decision and Order Beatrice Kornbluh, Esq., for the General Counsel. Mona N. Glazer, Esq. (Rains and Pogrebin), of Mineola, New York, for the Applicant. SUPPLEMENTAL DECISION AND ORDER STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This is a supplemental proceeding pursuant to the Equal Access to Justice Act (EAJA), Pub. Law 96-481, 94 Stat. 2325, 5 U.S.C. § 504 and Section 102.143 et seq. of the Rules and Regulations of the National Labor Rela- tions Board (Board). The underlying proceeding was commenced by issu- ance of a complaint and notice of hearing by the Region- al Director for Region 29, April 12, 1982. A number of violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) were alleged to have been committed by the Respondent therein, who will be referred to as the Applicant in this proceeding and the Respondent in the underlying unfair labor prac- tice proceeding. The alleged violations included refusal to reinstate striking employees who made unconditional offers to Respondent to return to work. After several days of hearing in October and November 1982, I dis- missed the portion of the complaint alleging refusal to re- instate the strikers and directed that the case proceed on the remaining allegations. Those were settled by stipula- tion between the General Counsel and the Respondent. By this Application, dated March 31, 1983, as amend- ed by a supplemental affidavit of Mona N. Glanzer, sworn to November 29, 1983, the Applicant seeks com- pensation for fees and expenses pursuant to EAJA. It was referred to me for decision on April 5, 1983, pursu- ant to Section 102.148(b) of the Board's Rules and Regu- lations. The Applicant is a private school located in Law- rence, Long Island, New York. The Brandeis Teachers Association (the Association) called a teachers strike which commenced September 15, 1981. The charge that Applicant unlawfully refused to reinstate the striking teachers was dismissed because the Association never filed the notices mandated by Section 8(d) of the Act, an omission that deprived the strikers of the protection of 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Act. Compensation for fees and expenses incurred in connection with the defense of that charge are claimed by Applicant in this proceeding on the ground that the General Counsel was or should have been aware of the deficiency, in its case, which ultimately resulted in the dismissal of that charge. That is denied in the General Counsel's answer filed July 29, 1983, which also inter- posed affirmative defenses to the effect that the General Counsel's position with respect to that charge had been substantially justified and that special circumstances exist in this case that would make an award of fees and ex- penses to the Applicant unjust. The Respondent filed a reply to the effect that the General Counsel had failed to make a proper investigation prior to issuance of the com- plaint. The General, Counsel submitted a memorandum in support of answer to application for award of attorneys' fees and expenses The Respondent did not submit a brief or memorandum. I directed, by order dated October 17, 1983, that both sides make additional written submissions pursuant to Section 102 152 of the Rules and Regulations of the Board, in response to specific questions that I pro- pounded in the order. The applicant and the General Counsel submitted affidavits and supplemental affidavits in response thereto The General Counsel's answer • alleged lack of knowl- edge respecting jurisdictional , factors and the_ General Counsel later moved to dismiss the Application for fail- ure sufficiently to allege facts establishing Applicant's status and eligibility to make claim under EAJA. The issues thus presented are as follows: 1. Is the Applicant eligible to make application under EAJA? 2. Was the General Counsel substantially justified in is- suing a complaint in the underlying unfair labor practice case? 3. If the General Counsel was' not subtaiitially .justified in issuing a complaint -therein, did there exist such special circumstaices as would make an award of attorneys' fees and expenses to the Applicant unjust? 4. Assuming that an award of fees and expenses may properly be made, has the Applicant established its enti- tlement to an award in any particular amount? FINDINGS OF FACT iI STATUS AND ELIGIBILITY OF APPLICANT, , The answer of the General Counsel neither admitted' nor denied the allegations of the Applicant pertaining to Applicant's eligibility to make this application under EAJA. Later, the General Counsel moved to dismiss the application for failure to make and establish a requisite allegation that Applicant is a religious and educational institution exempt from taxation under the Internal Reve- nue Code. - The most important of the deficiencies noted by the General Counsel was the Applicant's asserted failure to annex a copy of the Internal Revenue Service Tax Ex- emption Certificate to the applicant. The Applicant countered by filing the certificate as an exhibit to its reply affidavit; and I denied a motion by the General Counsel to reject the reply affidavit The tax exemption certificate thus became part of the record in this pro- ceeding and cured the defect in'the application.,Together with information that was-already included in the,appli- cation respecting employment categories, work locations, and the number of employees as of the date of the issu- ance of the complaint, it established that the Applicant had requisite status and eligibility under EAJA to file the instant application. The motion of the General Counsel to dismiss the application was denied by order dated June 30, •1983 Accordingly, -I find- that the Applicant is eligible to file the present application for attorneys' fees and expenses under the pertinent provisions of the Equal Access to Justice Act and the Rules and Regulations of the Board., ii THE ISSUE OF SUBSTANTIAL JUSTIFICATION Notwithstanding some ambiguity, which is discussed below, I read the application as limited to the expense in- curred in defending against the allegations of paragraphs 19, 20, 21, and 24 of the complaint, relating to the Appli- cant's alleged failure to reinstate striking employees who had made an unconditional, offer to return to work in their former positions. The crux of the matter is that the strike began without 'the requisite preliminary filing of a notice by the Association with Federal and state media- tion and conciliation services pursuant to Section 8(d) of the Act. The Applicant contends that the General Coun- sel was aware of that oversight prior to issuance of the complaint, the General Counsel asserted that it learned of it thereafter and that its conduct following receipt of the information was proper. A close look at what actual- ly happened convinces me that the General Counsel-pro- ceeded in this matter for a period of many months after issuance of the complaint without substantial justifica- tion. The Respondent was charged with unlawful interroga- tion of employees, unlawfully threatening employees with discharge, loss of employment, and reprisals for union activity; surveillance; assault, (tearing a picket sign away from an employee), promising wage increases and benefits, refusing to furnish information and records, re- quested by the Association; and refusing to reinstate striking employees who had made unconditional offers to Respondent to return to work and to their positions of employment. Its answer denied all allegations of wrong- doing and statutory violation, and asserted affirmative defenses to the effect that the Board had no jurisdiction over it, and that as a religious institution it was not-sub- ject to governmental control under the provisions of the Federal and New York constitutions. I heard testimony in the case October 25, 26, 28, and 29, 1982, and then adjourned the proceedings to Novem- ber 8, 1982. On resumption of the hearing, I was advised that the Respondent had become cognizant of the fact that no notice had been filed with the Federal Mediation and Conciliation Service or with any conciliation service of the State of New York as required by Section 8(d) of the Act The following day; the Respondent moved to dismiss the complaint. The General Counsel moved to dismiss only paragraphs 19, 20, 21, and 24, which con- tained the allegations pertaining to the failure to reinstate BRANDEIS SCHOOL the employees . I denied the Respondent 's motion and granted the motion of the General Counsel . An applica- tion by the Respondent for leave to file an interim appeal from my orders was denied by the Board, with leave to Respondent to file an appeal at the conclusion of the entire proceeding The remaining allegations of the complaint were subse- quently settled by stipulation between the General Coun- sel and the attorneys for the Respondent The issue in this proceeding hinges on the contention of the Applicant that the General Counsel knew or should have known, from an early date antedating the is- suance of the complaint, that the Union had not filed the requisite notices pursuant to Section 8(d) of the Act. The Applicant cited a statement contained in a letter dated January 26, 1982, addressed to John C. Truesdale, Exec- utive Secretary of the Board , by counsel for the Charg- ing Parties, which indicated that the General Counsel was aware that 8(d) notices had not been filed and was of the opinion that the Association 's failure to file the statutory notices would not bar a proceeding against the Applicant. However, the memorandum in support of answer sub- mitted by the General Counsel contains the following statement: At the time of the investigation due to the Appli- cant's lack of cooperation during the investigation, the Region was unaware of the Union 's failure to file the requisite 8(d) notices . Thus at the time the complaint issued , the Region was faced with a situa- tion where economic strikers had been refused recall rights in the context of an employer advertis- ing for job applicants in various newspapers. This was then asserted to indicate an unlawful refusal to recall in violation of Section 8(a)(1) and (3) of the Act, citing Zapex Corp., 235 NLRB 1237 (1978). In my order of October 17, 1983, I directed further written submissions from both sides respecting a number of matters. A clear issue of fact having been presented with respect to the time when the General Counsel found out about the failure to file the notices, the follow- ing interrogatory was propounded to the General Coun- sel: 1. With respect to the omission by the Brandeis Teachers Association ("the Union") to file notices in accordance with Section 8(d) of the National Labor Relations Act, (a) Who in the office of the General Counsel first received information that notices had not been filed, (b) When and Where the information was re- ceived; (c) the form (written, by telephone or by per- sonal communication) in which such information was received, (d) the precise information or data that was communicated to the General Counsel; (e) the person who made such communication. 841 The response to this inquiry, as set forth in the affida- vit of Beatrice Kornbluh, was as follows: The complaint in this proceeding issued April 12, 1982. The first time that this office learned that 8(d) notices had not been sent was on April 27, 1982 when New York State Mediation Board employee Roger Maher in a telephone conversation told At- torney Shuzman that the Mediation Board had not received any 8(d) notice from the union Mr. Maher also stated that his office would not send a letter and none was received. On April 30, 1982, having been advised of this conversation, either Regional Director Kaynard or Regional Attorney Richman telephoned Joseph Rosenthal who is the Charging Parties' attorney and who was the union's attorney before and at the time of the strike. (To be noted also is that among the Charging Parties are the offi- cers of the union at the time of the strike.) Mr. Rosenthal called back Mr Kaynard or Mr. Rich- man, probably Mr. Richman according to his recol- lection, later that same day and told him that no 8(d) notice had been sent The only pre-complaint information received by Region 29 in connection with 8(d) notices from an associate of Charging Parties' Attorney Rosenthal on March 13 or 23, 1982 That information was that all necessary 8(d) notices had been sent Thus the information from Attorney Rosenthal on April 30, 1982 was contrary to the information which his office had previously furnished Region 29. What is established, therefore, on the record, is that the General Counsel proceeded with the prosecution of all the allegations of the complaint despite the fact that, within 2 weeks after the issuance of the complaint, infor- mation was received which raised a serious question whether a prima facie case existed and could be proved with respect to the allegations of paragraphs 19, 20, 21, and 24 of the complaint The General Counsel's twofold explanation for persist- ing in the prosecution of those allegations was that coun- sel for the General Counsel believed that the failure of the Union to file an 8(d) notice was a matter that the Re- spondent in the underlying proceeding was obligated to raise as an affirmative defense in its answer, and that the unlawful strike had been condoned by the Employer, thus again placing the strikers under the protection of the Act. Counsel for the General Counsel must have known that its legal position was held imprudently, neither backed up by legal research nor approved by higher au- thority. When the Applicant moved to dismiss the com- plaint for failure to file the 8(d) notice, after 4 days of hearings, then, for the first time, the opinion of the Gen- eral Counsel's Division of Advice was sought, and when it advised that the employees who had gone out on strike were not protected by the Act, counsel for General Counsel speedily acquiesced in dismissal of the charges based on the Applicant 's failure to resinstate them on demand What the General Counsel did at that time is 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD what should have been done much earlier-on April 27, 1982. The mere fact that the General Counsel proceeded on an erroneous assumption and never could have prevailed with respect to the allegations that were ultimately dis- missed on its own motion does not, by itself, entitle the Respondent to compensation . What is determinative is the reasonability of- the General Counsel's behavior Thus, interposition of an answer in a proceeding by the Internal , Revenue Service at a time when , no data re- specting the case was available to it was held to be a substantially justifiable position on the part of the agency. Alspach v. District Director of Internal Revenue, 527 F.Supp. 225 (D .Md. 1981 ) In the present case, how- ever, the General Counsel continued on its course long after it should have reconsidered and altered its position. Moreover, for reasons discussed below, I find that the Respondent did not have knowledge of the Union 's fail- ure to file the 8(d) notice until early November 1982 and, therefore, could not have alleged that fact as an affirma- tive defense in its answer. I therefore find that the position of the General Coun- sel with respect to the allegations of paragraphs 19, 20, 21, and 24 of the complaint was without substantial justi- fication. I find that the position of the General Counsel with re- spect to the remaining allegations of the ' complaint, which are summarized at the beginning of this section, was substantially ,justified. I' find it necessary to make this finding because, as previously noted , there is an element of ambiguity in the application . I have read the Applica- tion as being limited in scope to a request for compensa- tion for fees arid expenses incurred in connection with Applicant's defense against the charge contained in para- graphs 19, 20, 21 , and 24 of the complaint . The entire discussion of 'lack of substantial justification which is contained in the application relates to that charge,' and paragraph 21 of the ' application summarizes the Appli- cant's position as follows: ,- Accordingly , the General Counsel was not sub- stantially justified in taking the position that re- spondent was guilty of certain unfair labor practices where the failure to file ^ the requisite 8(d) notices makes the position wholly without merit. No similar allegation was made with respect to,any other allegations of the complaint, and paragraph 29 requests an award in the following terms: Based on the foregoing , respondent submits that it is entitled to an award for fees and expenses inas- much as it meets the eligibility requirments, and in- asmuch as the position of the General Counsel over which the applicant prevailed was not substantially justified. However, the application has appended to it time records for all the work and.all the expenses incurred in connection with defense of the entire case. A further ele- ment of ambiguity is present by reason of the Applicant's assertion, in paragraph 28 of the application, that it was a respondent in an unfair labor practice proceeding "who prevailed on that proceeding, or in , a significant and dis- crete substantive portion of that proceeding . " Be- cause the Applicant seems to be leaving the door open for a later contention that compensation ought to ,be paid for services rendered in connection with the entire case, I want to note expressly at this point that the Applicant did not prevail on the entire case . The Respondent's motion to dismiss the entire case was denied because the only allegations of the complaint affected "by the failure to file, the 8(d) notice were those relating to the Re- spondent's refusal io reinstate the strikers , contained in paragraphs 19, 20, 21, and 24 of the complaint. Because none of the other charges were affected by the failure to file the 8(d) notice, the General Counsel's motion to dis- miss only the allegations contained in those four para- graphs of the complaint was granted The history of the remainder of the proceedings clearly demonstrates that it was the General Counsel who prevailed with respect to the remaining allegations. The hearing on the remaining allegations was put off by successive adjournments to March 7, 1983. At that time I approved an informal settlement agreement, which included additional material relating to procedural mat- ters which was read into the record by counsel for the General Counsel . The additional material included the following statements. Performance by Respondent concerning the provi- sions of this agreement shall begin immediately upon receipt of notice that it has been approved by the Administrative Law Judge. Upon full compli- ance with all, the terms of the agreement, a motion shall be made by counsel for the General Counsel, on notice, to dismiss the complaint and terminate the proceedings The settlement 'agreement required the Respondent to post and comply with all the provisions of a notice to the effect that Respondent would not interfere with em- ployees' rights, which were enumerated and which con- firmed the rights guaranteed in Section 7 of the Act; would not refuse to meet and bargain with, the Associa- tion acting on behalf of a unit described in the notice, would not make unlawful promises of wage increases or other benefits; would not refuse to furnish records to the recognized collective-bargaining agent, and would recog- nize and meet with any labor organization representing employees in the defined unit. The settlement agreement manifestly embodied the concession of the Respondent that it would not perform any of the proscribed activities alleged as violations of the Act in the complaint and, further, would cease per- forming any such activities if it was engaging in them This is not gainsaid by the inclusion in the settlement agreement of a provision to the effect that its execution by the Respondent did not constitute an admission that it had violated the Act or that it was subject to the j uris- diction of the Board. III THE ISSUE OF SPECIAL CIRCUMSTANCES The General Counsel asserted that special circum- stances warrant denial of attorneys ' fees, and expenses to BRANDEIS SCHOOL the Applicant because the Respondent refused to cooper- ate in the precomplaint investigation . This is true, to the extent that the Respondent's counsel notified the General Counsel that it was asserting a jurisdictional bar to the proceeding and did not believe that it should go forward on other aspects until that was resolved . Whether Re- spondent's counsel was right or wrong, its position was not entirely unreasonable However , it is difficult to see the relevance of the General Counsel 's argument, inas- much as reimbursement of expenses for the fees and ex- penses incurred by the Respondent after issuance of the complaint are what are at issue in this proceeding . Appli- cant is not entitled to reimbursement for precomplaint expenses. The General Counsel's contention fails for other rea- sons. It is apparent from the correspondence of the par- ties that had the Applicant cooperated in the manner re- quested by the General Counsel , the failure to file the notices under Section 8(d) still would not have come to light. The requested cooperation related to entirely dif- ferent matters. In my order of October 17, 1983, I directed the Gener- al Counsel to state each and every respect in which the Respondent or the Applicant was requested to cooperate in the investigation of the charges , with specific informa- tion as to time, place , and manner of making the request, the individuals involved in the communications and "(e) the specific information sought to be obtained through such cooperation; (f) whether such information was available to the Respondent or to the Applicant ; and (g) the response to such request which was made by the Re- spondent or the Applicant " The response of the General Counsel was to the effect that Respondent refused to furnish any evidence in sup- port of the three affirmative defenses that had been pleaded, relying solely on its jurisdictional defense This response is totally irrelevant to the question at issue, and explicitly relates to the defenses pleaded and not the de- fense based on failure of the Association to file the no- tices required by Section 8(d) The response continues with the following statement , which patently does not confront the issue posed: Thus, although the Agency sought at all times through Respondent's cooperation to obtain infor- mation concerning any and all defenses which Re- spondent could offer , only in the area of jurisdiction was there any information furnished. In other words , the General Counsel concedes that it wanted to probe the affirmative defenses alleged , think- ing that was all there was in the nature of affirmative de- fense available to the Respondent , and never asked the Respondent about circumstances that would have lead to the disclosure of the Association's failure to file notices under Section 8(d) The General Counsel glosses over the Respondent's actual lack of knowledge , and dwells on the asserted lack of cooperation , resorting to speculation to establish a connection between the requested cooperation and the unknown facts about the 8 (d) notice: 843 It is obvious too that if Respondent had not re- ceived its 8(d) notice, had it cooperated Respondent could have represented to the Region that the Union probably also did not fulfill its additional 8(d) requirements with respect to the Federal and State Mediation agencies. The highly conjectural nature of this argument under- scores the lack of actual proof that the matter would have to come to light-inevitably, probably, or possibly. It also makes a completely unwarranted assumption that employers normally receive copies of strike notices filed pursuant to Section 8(d) of the Act, though the Act con- tains no such requirement I conclude from the evidence in the record that, prior to the time the complaint in the underlying unfair labor practice case was issued , the Respondent did not know that the notices required to be filed by the Union under Section 8(d) of the Act had not been filed . I have arrived at this conclusion in spite of the failure of the Applicant's counsel to respond directly and forthrightly to a direc- tion, contained in my Order of October 17, 1983, that both the Respondent and the Applicant furnish informa- tion as to who first received information that the notices had not been filed, where and when the information was received, the form in which it was received , from whom it was received , and the precise information or data that was communicated to the General Counsel. The response to this direction , contained in the affidavit of Mona N. Glanzer, sworn to November 29, 1983, referred me back to the affidavit of Martin Gringer, sworn to November 9, 1983, which described only efforts to confirm the fact that the notices had not been filed , and goes on to dis- cuss the verbal confirmation thereafter received from the Federal Mediation and Conciliation Service. Nevertheless, on the whole record , I conclude that it was about that time that Respondent or counsel first learned that the notices had not been filed . There would certainly seem to be no reason for the flurry of activity at that time to confirm the information if it had not just recently been received Ample reason for not investigat- ing it in advance is given by Applicant 's counsel, who correctly point out that the Act does not require service of a copy of notice filed with the mediation services under Section 8(d) of the Act, and that it would , there- fore, not be likely that the Respondent itself would have been aware of the omission to file in this case I credit the affidavit of Martin Gringer, which describes his in- vestigation of the facts of the matter in November 1982. I also note that the General Counsel, while suggesting that the Respondent was aware all along of the infirmity in the General Counsel's case, fails to put forth any good reason why it was not alleged along with Respondent's other affirmative defenses. Thus, Respondent did not have the information in question ; Respondent's requested cooperation with the General Counsel would not have brought the matter to light; and the General Counsel had such knowledge suf- ficiently in advance of the hearing to have made unnec- essary most of the work done by Respondent 's counsel in preparing for the hearing with respect to that issue. 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I therefore find no special circumstances which would justify refusal to grant the application. IV. COMPUTATION OF THE AMOUNT OF THE AWARD Section 102.147(h) of the Rules and Regulations of the Board sets forth the manner in which supporting data is required to be submitted on an application under EAJA: (h)' The application shall be accomplished by full documentation of the fees and expenses for which an award is sought. A separate itemized statement shall be submitted for each professional firm or indi- vidual whose services are covered by'the applica- tion, showing the dates and the hours spent in con- nection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, to any expenses for which reimbursement is sought, the= total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The administrative law judge may require the applicant to provide vouchers, receipts, or, other substantiation for any expenses claimed. The present application pertains, not to an entire pro- ceeding, but only to a portion of the underlying unfair, labor practices proceeding which- was brought, to, an end when.both sides made motions to dismiss the complaint: The two motions before me were very, different. The General Counsel moved to dismiss only the allegations of paragraphs 19, 20, 21, and, 24, while the Respondent moved for dismissal of the entire complaint Because I denied the Respondent's motion and granted the motion of the General Counsel, and have consequently deter- mined in the instant proceeding that the Respondent may not recover under EAJA with respect to the allegations that had been disposed of by its stipulation with the Gen- eral Counsel, but only for expenses incurred in connec- tion with the charge embodied in the four paragraphs of the complaint which were dismissed, it was essential that on this application the -,work performed in connection with that portion of the complaint be separated from the other work performed in the,case by Respondent's attor- neys To that end, in my order of October 17, 1983, I ex- pressly directed the Applicant to furnish specific data re- specting the work performed in connection with the por- tion of the complaint dismissed pursuant to the motion of the General Counsel. '5 For each'attorney who is a member of or em- ployed by Applicant, (a) year of first admission to the Bar and jurisdic- tion in which admitted; (b) a brief resume of his or her legal experience; (c)"a statement of such person's position in the firm (partner, associate); (d) the work performed by each person in con- nection with these proceedings but only insofar as the same relate to the matters placed in issue by Paragraphs 19, 20, 21 and 24 of the complaint and the'answer thereto, on each date on or after April 12, 1982, stating specifically with respect to each such date and with respect to the foregoing issues, (i) the number of hours expended, (ii) a statement description of the work per- formed, ' (iii) a statement of the necessity for the pefor- mance of such work, (iv) the .hourly rate and the total amount demand- ed by way of compensation for the work and time docketed for that date, (v) the amount of any expenses incurred on such date for which reimbursement is demanded, stating -the relation of; same to the above-mentioned issues and the necessity for such expenditure. Instead of answering the direct questions posed, the Applicant's counsel submitted an affidavit,' which in re- sponse to Section 5(d) of the order, insofar as it related to Martin Gringer, was explicitly irrelevant, referring en- tirely to work done in matters other than the instant pro- ceeding or the underlying unfair labor practice and, ap- parently, for different clients. As to work done by Mona N. Glanzer, 15 typewritten pages of'data were furnished, almost all of which was irrelevant 'to the questions posed in my order I was also given a great deal of information about work performed in connection with aspects of the case other than those regarding which I had requested information, such as conferences between the counsel and the Applicant' regarding the school curriculum and the affiliation between the Solomon Schechter Schools and the United Synagogue of America, and much other work performed in connection with the affirmative de- fenses that had been pleaded in the answer in the under- lying proceeding. In addition, I was referred back to the initial application and the time records annexed thereto, which for the most part, do not apportion the time be- tween various aspects of the case. Accordingly, I make an award on the basis only of those entries in the records appended to the application and affidavits, and on the basis of statements contained in the application and affidavits, which clearly and unam- biguously related to work done in connection with the verification of the fact that notices had not been filed by the association pursuant to Section 8(d) of the Act and the legal work incident to obtaining dismissal of the charge that Respondent had refused to reinstate the strik- ing teachers The numerous entries pertaining to confer-' ences with the client and the witnesses and other work done in preparation for the defense of the proceeding do not indicate which portions of that work pertain to the dismissed charge, and the response made by the Appli- cant to the Order of October 17, 1983, does nothing to clarify the situation. It is thus impossible for me to make any award for work done before November 1982, when entries begin to relate specifically to work done in connection with that phase of the proceeding Even then, however, it must be noted that, as is indicated by some entries early in De- cember 1982, discussions were taking place with respect to settlement of the remaining charges. That circum- stances precluded me from assuming that numerous tele- BRANDEIS SCHOOL 845 phone conversations with the General Counsel and others related only to the dismissed charge and did not relate, instead, to other aspects of the case. Accordingly, I have computed an award based on timesheet entries which expressly relate to the dismissed charge and the motion to dismiss it or which, because of their timing and surrounding context, can safely be in- ferred have related to the dismissed charge. I have also considered Martin Gringer's description of his work con- tained in his affidavit of November 9, 1982, the first two pages of which were appended as an exhibit to the affi- davit submitted in response to the order of October 17, 1983. It should be noted at this point that, because the in- stant application relates so extensively to matters that I find not to be compensable, and in view of the failure to make any proper response to my order of October 17, 1983, the Applicant is not entitled to recover its expenses in connection with the preparation of the instant applica- tion It should also be noted that, while the session of the hearing held on November 8, 1982, lasted for 30 minutes, the time records of counsel show time expended in the amount of 2 5 hours. I consider this a permissible inclu- sion of travel time. I am unable to find any basis in the data furnished for finding out-of-pocket expenses in any amount to have been applicable to the compensable portion of the case. I find that the Applicant's counsel spent a total of 18.05 compensable hours in the underlying proceeding, as follows- (a) Telephone calls to and from the General Counsel, the Federal Mediation and Conciliation Service, and Administra- tive Law Judge- I find the time expended in connection with the above activities to be reasonable and prudent. All the work which I have found to be compensable was performed by three attorneys: Mona N. Glanzer, a partner, admitted to practice in New York in 1954; Bruce R Millman, a partner, admitted to practice in New York in 1974; and Martin Gringer, an associate, ad- mitted to practice in New York in 1976. The length and nature of their experience, as set forth in the application and related submissions, amply justifies a rate of compen- sation in the amount of $75 per hour. The fact that the Applicant was billed a somewhat lesser amount requires that the compensation awarded be limited to that amount. Section 102.247(h) makes this clear by the re- quirement that the Application set forth "the total amount paid or payable by the applicant or by any other person or entity for the services provided " Production of vouchers and receipts may be required in substantia- tion of the expenses claimed. What is compensable is not reasonable value, but expenses incurred. The Applicant is the Respondent, not the counsel representing Respond- ent. Counsel appear to have miscontrued the nature of ap- plications under EAJA and have made a presentation that seems to be more in the nature of an application for a reasonable fee (as defined by them and limited by the Board rules). The application is ambiguous as to the hourly rate at which compensation is sought. Paragraph 27 of the application alleges that if the issues involved in the underlying proceeding had been litigated in another forum, the compensation to which Applicant would be entitled would be the normal hourly rate charged multi- plied by the number of hours. This irrelevancy is fol- lowed by an allegation in paragraph 28 of the application that, "Based on the foregoing, respondent submits that it is eligible to apply for an award of fees and other ex- penses under Section 102.143(a), (b), and (c) of the Rules and Regulations of the National Labor Relations Board 11/2/82 2 hours 11/4 2 11/5 3 11/19 11/24 .2 12/6 .5 15 (b) Telegrams and correspondence 11/2 1 11/29 12/2 1 12/9 (c) Legal research 4 11/3 (re EAJA) 1 0 11/4 (re 8(d)) 10 11/5 (re 8(d)) 40 11/9 1 75 7 75 (d) Internal law office conferences 11/4 (e) Attendance at hearing 4 .4 11/8 25 25, (f) Preparation of motion to dismiss and subsequent affidavits and submissions 11/8 4.0 11/9 15 5.5 18.05 hours 11 Paragraph 24 of the application alleges that itemized statements annexed thereto represent normal hourly fees charged for professional services of partners and associ- ates calculated at their normal hourly rates of $140 per hour for partners' and associates calculated at their normal hourly rates of $140 per hour for partners and $100 per hour for associates A statement computing fees at the Board's maximum rate of $75 per hour was also attached, assertedly "solely for the convenience of the Board." In fact, however, some of the annexed state- ments calculate the time of Mona Glanzer, a partner, at the rate of $125 per hour and actual billing to the Re- spondent was calculated at a substantially lower hourly rate. Exhibit I annexed to the Application, consisting of copies of the time records, contains handwritten entries showing actual billing to the Respondent for time of both partners and associates at the rate of $65 per hour on March 20, May 13, July 29, and November 29, 1982, and on January I1 and March 17, 1983. The actual bill- ing is controlling because it fixes the amount of reim- bursement to which the Applicant is entitled, the Appli- 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cant being the Respondent, not the attorneys who repre- sent it . This is not a petition to fix reasonable fees but an application for reimbursement. Statements of disbursements do not apportion them to that portion of the work which is compensable, but it is obvious that counsel had out-of-pocket expenses for mail, telephone , and travel In the absence of any firm data, I award Applicant $ 1 for each hour of time expended on the compensable portion of the case to cover out-of- pocket disbursements Accordingly, I find the Applicant to be entitled to compensation for attorneys' fees for which it is liable at the rate of $66 per hour, or a total of $1,191 30 ($66 times 18 05). [Recommended Order omitted from publication.]