Lathers Local 46 (Building Contractors)

LATHERS LOCAL 46 (BUILDING CONTRACTORS) The Metallic Lathers' Union of New York and Vi- cinity Local 46 of The Wood, Wire and Metal Lathers' International Union and Mack C. Grif- fin and Pembroke Blyden and Earl Diggs and Linton Brown and Alexander Thompson and John A. Cleary and Building Contractors Asso- ciation, Inc. and The Cement League, Parties to the Contract. Cases 2-CB-6021(E), 2-CB- 6046(E), 2-CB-6868(E), 2-CB-6923(E), 2-CB- 6841(E), 2-CB-6851(E), 2-CB-6859(E), and 2- CB-6900(E) June 30, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On February 11, 1983, Administrative Law Judge Michael O. Miller issued the attached sup- plemental decision . The General Counsel filed ex- ceptions and a supporting brief, and The Metallic Lathers' Union of New York and Vicinity Local 46 of The Wood, Wire and Metal Lathers' Interna- tional Union (the Applicant) filed a brief in opposi- tion to the General Counsel's exceptions. The Gen- eral Counsel then filed a motion to strike certain portions of the Applicant's brief.' The Applicant filed a response in opposition to the motion to strike as well as a supplemental memorandum con- testing the Board's jurisdiction to hear and decide exceptions to the judge's decision.2 Finally, the General Counsel filed a supplemental brief in oppo- sition to this memorandum. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. i The General Counsel moved to strike as untimely all statements con- tained in the Applicant 's opposition to the General Counsel's exceptions that deny or contest the Applicant 's failure to cooperate in the investiga- tion of the underlying unfair labor practice case In support of the motion, the General Counsel points out that the judge, in his supplemen- tal decision, specifically found that the Union cooperated only minimally in the investigation of the unfair labor practice charges The Applicant did not except to this, or any other, part of the judge's supplemental deci- sion Accordingly, since the Applicant's assertions of cooperation are raised for the first time in its brief, we grant the General Counsel's motion to strike them However, in view of our determination that the General Counsel presented evidence, which if credited and found suffi- ciently probative would have constituted a prima facie case, we find it unnecessary to rely on the Applicant's minimal cooperation in the investi- gation of the underlying charges. 2 In its supplemental memorandum contesting the jurisdiction of the Board to hear and decide the General Counsel's exceptions, the Appli- cant contends that the Board has no jurisdiction to review the judge's decision based on the original language in the Equal Access to Justice Act (EAJA), 5 U S C § 504 (1982) Subsequent to the filing of this motion, the Board had occasion to con- sider this very issue in Lion Uniform, 285 NLRB 249 (1987) There, the Board found that recent amendments to EAJA make clear that the agency, rather than the administrative law judge, makes the final decision on the award of attorney's fees 505 The Board has considered the decision and the record in light of the exceptions, motions, 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 March 4, 1982, the Board issued a Decision and Order in the underlying unfair labor practice case.3 On April 5, 1982, the Applicant applied for an award of attorney's fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 ( 1982).4 In the attached supplemental decision, the judge found that the application was timely filed, the Applicant is an eligible party, and the position of the General Counsel in the underly- ing case was not "substantially justified" with re- spect to certain allegations within the meaning of EAJA. Accordingly, the judge recommended that the Applicant be reimbursed for certain specified fees and expenses incurred in the underlying unfair labor practice proceeding and in the instant EAJA proceeding. Initially, we must rule on the judge's denial of the General Counsel's motion to strike the applica- tion as untimely filed. Analogizing applications filed under EAJA to those filed under the Federal Tort Claims Act, the judge concluded that the ap- plication was timely filed, even though it was filed 2 calendar days beyond the 30-day filing period provided in EAJA, Section 504(a)(2). The 30th day following issuance of the Board's Decision and Order, however, fell on Saturday, April 3, 1983. In B. J. Heating, 268 NLRB 643 (1984), the Board held that when the 30th day falls on a Saturday, Sunday, or legal holiday, an application filed on the first business day following the expiration day is timely. Accordingly, we agree with the judge that the application was timely filed because it was filed on the first business day following the 30th- day deadline, which fell on a Saturday. The General Counsel contests the Applicant's eligibility for an award, contending that, pursuant to Section 102.143(g) of the Board's Rules and Regulations, the net worth of the Applicant must be aggregated with that of its alleged affiliates, The Wood, Wire and Metal Lathers' International Union, and the local unions affiliated with that International, to determine whether the Applicant is a qualifying "party"5 under EAJA. We find it 8 Lathers Local 46 (New York & Vicinity), 260 NLRB 624 (1982). 4 Subsequently, EAJA was amended See Pub L 99-80, 99 Stat 183- 187 (1985) 5 In defining a "party" entitled to recover expenses incurred in an ad- ministrative proceeding , 5 U S C § 605(b)( 1XB), which is the applicable subsection of EAJA, reads in relevant part "Party" means a party as defined in 5 U.S C. 551(3), who is . (u) any owner of an unincorporated business, or any partnership , corpo- Continued 289 NLRB No. 64 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unnecessary to resolve this eligibility issue in light of our ultimate conclusion that the General Coun- sel's position in the unfair labor practice proceed- ing was substantially justified as discussed below. Assuming the Applicant's eligibility, we turn to the standards to be applied in making an award. Section 504(a)(1) of EAJA provides that an award shall be made to a prevailing party unless "the po- sition of the agency as a party to the proceeding was substantially justified or . . . special circum- stances make an award unjust." The Board's Rules and Regulations provide that an applicant may re- ceive an award for fees and expenses incurred in connection with an adversary adjudication if it pre- vailed in that proceeding or in a significant and dis- crete substantive portion of that proceeding, unless the General Counsel proves that her position in the unfair labor practice case, over which the applicant has prevailed, was substantially justified.6 Further, in order to defeat a claim for fees and expenses trader EAJA, the General Counsel must meet that burden with respect to each readily identifiable stage of the proceeding.? Congress has emphasized that no adverse inferences are to be drawn from the fact that the Government did not prevail in the adversary adjudication. Nor does the standard re- quire the Government to establish that its decision to litigate was based on a substantial probability of prevailing.8 Concerning the merits of this application, a brief review of the underlying unfair labor practice case is in order. The Metallic Lathers' Union of New York and Vicinity Local 46 of The Wood, Wire and Metal Lathers' International Union (the Union) operates an exclusive hiring hall for the referral of workmen in the lathing and structural steel rein- forcing trades. The General Counsel contended in the underlying complaint that the Union had vio- ration, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which had not more than 500 em- ployees at the time the adversary adjudication was initiated. 8 Board's Rules and Regulations, Secs 102 143(b), 102 144(a). The judge's supplemental decision in this case issued February 11, 1983, prior to the 1985 amendments to EAJA Subsequent to those amendments, ef- fective May 15, 1986, the Board revised Sec. 102.144(a) of its Rules and Regulations regarding substantial justification 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 has 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 Tyler Business Services v. NLRB, 695 F 2d 73 (4th Cir 1982) 8 S Rep No 253, 96th Cong 1st Sess 6, HR. Rep No 1418, 96th Cong 2d Sess 16 reprinted in 1980 U.S Code Cong & AD. News 4953, 4990 lated Section 8(b)(1)(A) and (2) of the Act by dis- criminatorily giving preference in referrals to its members (journeymen or bookmen) and denying referrals to permitmen (nonmembers and those who are members of other locals). This discrimination, it was alleged, occurred through the following means: (a) the Union failed to use the court-man- dated priority list in making job referrals; (b) the Union permitted members to circumvent the hiring hall rules by obtaining jobs with contractors with- out registering at the union hall (direct hires); (c) the Union allowed members to return to work for a contractor after a layoff in excess of 1 day (call- backs), all to the detriment of the permitmen; and (d) the Union gave preference in referrals to mem- bers and failed and refused to refer nonmembers who were entitled to such referrals. The hearing opened on October 31, 1978, and was postponed indefinitely pending settlement dis- cussions. Once the hearing resumed in September 1980, evidence was revealed, which was apparently unknown to the General Counsel and which estab- lished that use of the priority lists had been aban- doned about September 1, 1976, and referrals after that date were made according to the order of daily sign-in. After the General Counsel's case-in-chief, the Respondent moved for dismissal, contending that the evidence did not support the allegations. The judge denied the motion. In ruling on the application for attorney's fees, the judge found that the General Counsel had a reasonable basis in fact for issuing the complaint, amending it when the hearing reopened, and proceeding through the litigation, at least until that point where its misunderstandings with respect to the discontinuance of the priority lists became obvious. Accordingly, to the extent described above, I find that General Counsel's position was substantially justified.9 The judge further found, however, that when it became clear that the evidence would not support complaint allegations based upon alleged breaches of the priority system, Gener- al Counsel changed its theory to allege more generally widespread discrimination against the permit men based upon its analysis of the activity reports showing that bookmen re- ceived far more referrals, with far fewer hiring hall registrations, than permit men. 8 The Applicant did not file exceptions to this finding LATHERS LOCAL 46 (BUILDING CONTRACTORS) 507 The judge concluded that the General Counsel had failed to sustain the burden of proving that the po- sition with respect to callbacks and direct hires was substantially justified. In the judge's estimation, the General Counsel's theory, based on a comparison of member versus nonmember referrals, had neither a factual nor a legal basis. The judge also found that the General Counsel's position with respect to the steward-referral issue was not substantially jus- tified.10 In her exceptions to these findings, the General Counsel contends that the judge erred in treating the callback and direct-hire allegations as signifi- cant and discrete portions of the case, when in fact they were but subparts of the overall theory of vio- lation, i.e., that the Applicant was operating its hiring hall in a discriminatory manner, providing preferential treatment for members over non- members. The General Counsel also contends that the judge erred in concluding that the General Counsel was not substantially justified in issuing a complaint on these issues. Finally, the General Counsel argues that the judge erred in finding that the General Counsel was not substantially justified in continuing to litigate all allegations after Sep- tember 22, 1980. We find merit in the General Counsel's excep- tions because the direct-hire- and callback allega- tions and the steward-referrals issue do not consti- tute a "significant and discrete portion of the pro- ceeding. " 11 In view of the fact that the Applicant's entire hiring hall operations were under scrutiny, it incurred no discernible additional effort in litigat- ing the General Counsel's overall theory of dis- crimination . Moreover, we disagree with the judge's assessment that the General Counsel's theory was "changed" to allege that bookmen re- ceived far more referrals, with far fewer hiring hall registrations, than permitmen. As noted earlier in the discussion of the procedural history of this case, the General Counsel initially made this allega- tion of discrimination in the September 25, 1978 amended consolidated complaint and supported it with referral activity reports. This allegation was not added after the testimony was adduced regard- ing discontinuance of the priority list. Additionally, even assuming arguendo that the direct-hire and callback allegations do represent a "significant and discrete" portion of the unfair labor practice proceeding, we disagree with the 10 In the underlying decision , the judge found that the Union had dis- criminatorily refused to appoint stewards from among journeymen mem- bers of other locals, in violation of Sec . 8(b)(1)(A) and (2) of the Act. The Board ultimately concluded that the issue had not been litigated at trial and reversed the judge's finding. 11 See, e.g., Temp Tech Industries, 266 NLRB 730 ( 1983), enfd. 756 F.2d 586 (7th Cir. 1985); Lion Uniform, 285 NLRB 249 (1987). judge's finding that the General Counsel was not substantially justified in issuing a complaint on those allegations. In our view, the resolution of the callback and direct-hire allegations, as with the out-of-priority allegation, depended on inferences 12 to be drawn from a statistical and factual analysis of the activity reports as well as credibility resolu- tions 13 based on the witnesses' testimony. Even the judge concluded in the initial litigation that, "[e]xamined broadly, comparing only the member referrals against those received by nonmembers, the statistics would seem to support the General Counsel's contentions."14 Moreover, "[i]t would appear from the record that journeymen benefited more frequently from direct hires and callbacks than did permitmen." 15 At the time the complaint issued, the General Counsel was not basing the case only on reasonable inferences to be drawn from the activity reports. Rather, the General Counsel relied also on the Charging Parties' affida- vits outlining a proclivity on the part of business agents to favor members over nonmembers when making referrals.16 After reviewing the testimony from the General Counsel's witnesses, the judge found that "[c]ertain statements by the business agents do tend to show some desire on their part to prefer members." 17 In pursuing the decision to issue a complaint and take the case to hearing, the General Counsel was armed with sworn affidavits from the Charging Parties that indicated discriminatory motivation on the part of the business agents in their referral practices, together with the statistical analysis gleaned from referral data contained in the activity reports, which it is reasonable to view as substan- tial evidence supporting the Charging Parties' alle- gations. In addition, there was legal precedent es- tablishing that in certain circumstances the Board would find a violation of Section 8(b)(1)(A) and (2) based primarily on statistical evidence.18 12 See Bask Paint & Sandblast Co., 270 NLRB 514 (1984); Iowa Parcel Service, 266 NLRB 392 (1983), enfd . sub nom. Iowa Express Distribution v. NLRB, 739 F.2d 1305 (8th Cit. 1984), cert. denied mem . 469 U.S. 1088 and 470 U.S. 1024 (1984). 18 See, e.g., Natchez Coca-Cola Bottling Co., 269 NLRB 877, 878 (1984). 14 260 NLRB 624, 638 ( 1982). 1s Id. 18 In reaching our determination on the substantial justification ques- tion, we find it unnecessary to rely on the affidavits attached to the Gen- eral Counsel's answer to this EAJA application. " Id. at 640. 's See Iron Workers Local 45 (Contractors of New Jersey), 235 NLRB 211 (1978); Iron Workers Local 373 (Contractors of New Jersey), 235 NLRB 232 (1978); Iron Workers Local 480 (Contractors of New Jersey), 235 NLRB 1511 (1978). 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thus, the General Counsel presented evidence that, if credited and found sufficiently probative 19 by the factfinder, would prima facie establish the merits of the contentions the General Counsel was making. The General Counsel's case did not pre- vail, in part, because the judge concluded that the statistical record was too open to the possibility of error and he did not find the discriminatory motive testimony sufficiently extensive or persuasive to support the finding of a violation. Such weighing of facts and drawing of inferences is not the Gener- al Counsel's province in the investigative stage of a proceeding. The weighing of various explanations for the apparent discriminatory treatment of non- members and the drawing of inferences from the testimony are, in the first instance, the exclusive province of the judge; they require submission of the case to the factfinding process of litigation. The judge also accused the General Counsel of disregarding recognized exceptions to the referral system. In our view, the General Counsel prudent- ly concluded that a reasonable evidentiary infer- ence could be drawn from what was perceived to be a striking statistical contrast between member and nonmember referrals, notwithstanding the rec- ognized exceptions to the referral procedures. The inference could also be drawn that a substantial number of special exception designations were false. Accordingly, we find that the General Counsel had substantial justification for issuing the com- plaint and proceeding to hearing on all allegations of the complaint, including the callback and direct- hire allegations. Those allegations were but sub- parts of the overall allegation that the Applicant was operating its hiring hall in a discriminatory fashion. Further, given the evidence adduced and the type of violations alleged, the General Counsel was substantially justified in continuing to litigate the entire case up to final resolution of the issues by the Board. The application will be denied in its entirety. ORDER The National Labor Relations Board orders that the application for attorney's fees and expenses filed by The Metallic Lathers' Union of New York and Vicinity Local 46 of The Wood, Wire and Metal Lathers' International Union pursuant to the Equal Access to Justice Act and the Board's Rules and Regulations is denied. 19 There is no bright-line test to apply in making a determination on what set of circumstances in an out-of-order referral case is sufficient to establish a violation of the Act or how many out-of-order referrals are necessary to establish a pattern of unlawful conduct See the court's dis- cussion in Electrical Workers IBEW Local 211 v NLRB, 821 F.2d 206 (3d Cir 1987) SUPPLEMENTAL DECISION Equal Access to Justice Act STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. These consolidated cases were tried before me in New York, New York, on October 31, 1978; September 17, 18, and 22, 1980, December 15, 16, and 17, 1980; and January 22, 1981. In my decision, dated July 30, 1981, I recommended that the consolidated complaints be dis- missed in all respects save one. The General Counsel and Respondent filed exceptions to my recommended Order and, on March 4, 1982, the Board issued its Decision and Order, 260 NLRB 624 (1982) dismissing the consolidated complaints in their entirety.' By an application received by the Board on April 5, 1982, as subsequently revised, The Metallic Lathers' Union of New York and Vicinity Local 46 of The Wood, Wire and Metal Lathers' Union (the Applicant or the Union), seeks an award of attorney fees and expenses in the amount of $44,808 under the Equal Access to Jus- tice Act (EAJA), Pub. L. 96-481, 94 Stat. 2325, 5 U.S.C. § 504 and Sec. 102.143 et seq. of the Board's Rules and Regulations.2 By Order of the Board dated April 9, 1982, that application was referred to me for appropriate action. Following denial of the General Counsel's motion to dismiss the EAJA application and the Applicant's sub- mission of additional information as directed in my June 23, 1982 Order, the General Counsel, on October 6, 1982, filed its answer together with a supporting memo- randum and other documents. On October 28, the Appli- cant submitted a reply memorandum. The issue having thus been joined, this decision is made on the documents in the record pursuant to Sec- tion 102.153(a) and (b) of the Board's Rules and Regula- tions. 1. THE ISSUES The following issues will be treated seriatim A. Was the application timely filed? B. Is the Applicant an eligible party under EAJA? C. Was the position of the General Counsel in this litigation substantially justified? D. May the Applicant recover fees and expenses incurred prior to October 1, 1981? E. May the Applicant recover fees and expenses incurred in prosecuting its EAJA application? F. To what reasonable fees and expenses is the Applicant entitled? 1 I had found that the Respondent Union had discriminatorily refused to appoint stewards from among the Local 46 permitmen who were jour- neymen in other locals, in violation of Section 8(bx1)(A) and (2) The Board held that the General Counsel had failed to put this question in issue at the hearing, thereby denying the Union an opportunity to litigate the matter fully and to present evidence justifying its conduct Thus, the issue had not been sufficiently litigated 2 By its revision, the Applicant seeks those additional fees and expenses incurred in pressing its EAJA application. LATHERS LOCAL 46 (BUILDING CONTRACTORS) 509 II. DISCUSSION A. Timeliness EAJA, Section 504(a)(2), and the Board's Rules, Sec- tion 102.148 require that an application for fees and ex- penses be filed within "30 days after the entry of the Board's final order," the "final disposition in the adver- sary adjudication." In the instant case, the Board's Order issued on March 4, 1982, and Respondent's application, while "dated and apparently served by mail on April 1, 1982,"3 was filed with the Board on April 5, 1982, nu- merically beyond the 30-day limitation period. The Gen- eral Counsel has moved for dismissal of the application as untimely. In my earlier Order denying the General Counsel's motion to dismiss, I concluded that the application had been timely filed, stating the following: The Board's Order referring Respondent's applica- tion to me establishes that it was filed with the Board on April 5, 1982, 2 calendar days beyond the 30 day filing period provided in EAJA Sec. 504(a)(2). The thirtieth day following issuance of the Board's Decision and Order herein, however, fell on Saturday, April 3, 1982. Pursuant to the Board's Rules and Regulations, Sec. 102.114(a), "a Saturday on which the Board's offices are not open for business shall be considered a holiday . . ." and the filing period then runs to the end of the next business day. The provisions of this rule are proper- ly applied to EAJA applications in order to avoid the injustice of foreshortening that Act's already brief filing period. Therefore, the period for the filing of this application ran until the close of busi- ness on Monday, April 5, 1982. That ruling is adhered to here. The General Counsel contends that EAJA, as a relin- quishment of sovereign immunity, must be strictly inter- preted and narrowly construed. The Federal Tort Claims Act (FTCA) (28 U.S.C. § 1346, 2671 et seq.) is similiarly a limited waiver of sovereign immunity. The FICA, Section 2401(b), provides, in mandatory language even more explicit than that of EAJA § 504(a)(2): A tort claim against the United States shall be for- ever barred . . . unless action is begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented. In both Kirby v. U.S., 479 F. Supp. 863 (D.S.C. 1979), and Rodriquez v. US., 382 F.Supp 1 (D.P.R. 1974), the question was presented whether, when the applicable limitations period would have expired on a Saturday, that period was extended until the next business day, pursuant to Rule 6(a) of the Federal Rules of Civil Pro- cedure. That rule provides, in language substantially identical to that of the Board's Rule 102.114(a), that 3 G. C. memorandum in support of answer, 8. The last day of the period so computed shall be in- cluded unless it is a Saturday, a Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Both courts held Rule 6(a) applicable to the Federal Tort Claims Act and found the actions to have been timely filed. They noted that the absence of contrary leg- islative intent suggested implied congressional approval of a lenient and liberal approach. Those cases are, to all practical effect, "on all fours" with the instant situation and the analyses presented are compelling. Further guid- ance is provided by the rationale of. Bledsoe v. Depart- ment of Housing and Urban Development, 398 F.Supp. 315 (E.D.Pa. 1975). The court specifically addressed the sov- ereign immunity question and stated: Strict construction of the statutory provisions appli- cable to the Act may be appropriate in certain in- stances to avoid unwarranted extensions of the waiver of sovereign immunity, provided by Con- gress. However, it is a perversion of this principle to construe the six month provision of section 2401(b) so that six months under section 2401(b) in- cludes less time, in fact, than that provided under any other six-month statutory period. Absent explic- it congressional direction, courts should not, under the rubric of sovereign immunity, create a separate and cramped mathematics of computation. [Id. at 320-321.] As noted, the limitations provision of the FICA more expressly bars actions filed outside the stated period than does EAJA, and it sets forth a longer period in which to file than EAJA provides. EAJA's abbrievated limitations period and its less explicit language thus provide even stronger justification for a liberal application of what the court in Bledsoe described as the general or common law rule with respect to the computation of limitations peri- ods. See also Sherwood Bros v. District of Columbia, 72 App. D.C. 155, 113 F.2d 162, (1940), quoted in Bledsoe, where it was pointed out that the rule (as embodied in FRCP Sec. 2401(b) and Sec. 102.114(a) of the Board's Rules) was "the common-law rule . . . embedded in the habits and customs of the community . . . by long-estab- lised legal and commercial tradition." The court there found it reasonable to "assume that Congress had the common-law rule in mind when it legislated, and to con- strue the statute accordingly."4 4 Cf. Monark Boat Co., 262 NLRB 994 (1982). There, the Board, faced with the question of whether the 3-day period for the filing of an EAJA application was extended by 3 days pursuant to Sec. 102.114(a) of the Board's Rules, concluded that the 30-day time limit was a jurisdictional condition that the Board could not legally extend . The Board further noted that the 3-day extension portion of Rule 102 . 114(a) was not appli- cable to an EAJA application inasmuch as that portion of the rule deals with actions required to be taken "within a prescribed period after serv- ice" and EAJA § 504(a)(2) and the Board' s Rule Sec. 102.148 both re- quire that the application be filed within 30 days of entry of the final order, without reference to service. The Board left open the question presented here as to effect of Rule 102 . 114(a) on a 30-day limitation period that ends on a Saturday, Sunday, or legal holiday. The Board similarly left this question open in Lord Jim's, 264 NLRB 1098 (1982). 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, I conclude that the filing of this applica- tion on Monday, April 5, 1982, was timely. The General Counsel's motion to dismiss the application as untimely is denied. B. The Applicant's Eligibility The General Counsel concedes that the Applicant, standing alone, meets the EAJA eligibility requirements, inasmuch as it was an unincorporated association or or- ganization with a net worth not exceeding $5 million or employing more than 500 employees at the time the ad- versary adjudication was initiated. However, the General Counsel contends that the Applicant has not established its eligibility inasmuch as it failed to provide the number, category, and work location of the employees, or the net worth, of its alleged affiliates, The Wood, Wire and Metal Lathers' International Union and the local unions affiliated with that International. 5 In its response to my order on motion to dismiss its EAJA application, where I had raised questions concern- ing the Applicant's potential affiliates, the Applicant set forth, by affidavit, that its International union had but 15 employees working in various specified locations and po- sitions as of January 23, 1978, when the original com- plaint issued. It further claimed by affidavit that the net worth of that International union, as of December 31, 1978, was less than $5 million. Other than naming the various locals affiliated with its International union, the Applicant did not provide any information as to either the net worth of such local unions or the numbers, posi- tions, or locations of their employees. e EAJA, which is expressly applicable to labor organiza- tions,' makes no mention of the aggregation of either the net worth or the employee complement of an applicant with that of affiliates. The reference to affiliates, as found in the Board's Rules, apparently stems from the model rules of the Administrative Conference of the United States (ACUS), Section 0.104(f). That section suggested the following rule. (f) The net worth and number of employees of the Applicant and all of its affiliates shall be aggre- gated to determine eligibility. Any individual, cor- poration or other entity that directly or indirectly controls or owns a majority of the voting shares or other interests of the Applicant, or any corporation or other entity of which the Applicant directly or b The Board's Rule Sec 102.143(g) provides The net worth and number of employees of the Applicant and all of its affiliates shall be aggregated to determine eligibility 6 The Applicant submitted a list of approximately 246 local unions in the United States and Canada, which were affiliated with The Wood, Wire and Metal Lathers' International Union. None of these, it stated, were as large as the Applicant and few, it believed, had any full-time em- ployees The Applicant denied that it was affiliated with The Wood, Wire and Metal Lathers' International Union or any of the locals affili- ated with that International within the contemplation of the Board's Rules. EAJA, Sec. 202(a) provides, miter alia. The Congress finds that certain individuals, partnerships, corpora- tions, and labor and other organizations may be deterred from seek- ing review of, defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings indirectly owns or controls a majority of the voting shares or other interest, will be considered an affili- ate for purposes of this part, unless the adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may de- termine that financial reltationships of the Applicant other than those described in the paragraph consti- tute special circumstances that would make an award unjust. The model rules would thus have required aggregation only when an applicant had a majority interest in an- other entity or was itself controlled by an entity possess- ing a majority interest in it. The Board, in adopting its rule, omitted the references to majority control of or by affiliates, apparently to leave open the questions , present- ed here, as to whether the net worth and employee com- plement of an International union and the other local unions affiliated with it must be aggregated with the em- ployee complement and net worth of an applicant that is itself a local union. Case law provides little relevant precedent. On the one hand, it is clear that a local union is a separate and distinct entity from the International union with which it may be affiliated so that one is not automatically liable for the misconduct of the other . Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 217 (1979); Mine Workers (Blue Diamond Coal), 143 NLRB 795 (1963). On the other hand, when considering whether to assert jurisdiction over a labor organization functioning as an employer, the Board has considered the relationship between a local union and its International. See Louisiana Council No. 17, AFSCME, AFL-CIO, 250 NLRB 880, 892 (1980); Chain Service Restaurant Employees Local 11, 132 NLRB 960 (1961). Absent clear precedent, recourse must be had to the statute (EAJA) and its stated purposes . As noted, it was expressly intended that EAJA apply to labor organiza- tions. Application of an affiliation principle as suggested by the General Counsel would, if considered realistically, render all but the smallest unions, the unaffiliated in-plant organizations, ineligible. Where Congress has expressly included a group within those intended to be eligible for the benefits of its legislation, I cannot conclude that it si- multaneously intended to exclude the vast majority of such organizations from those benefits. Accordingly, I must conclude that the Applicant is not required to ag- gregate the net worth and employee complement of its International union with that of its own in order to es- tablish eligibility. Perforce, it would not be required to aggregate the net worth and employee complements of its "sister" locals, with whom its relationships , particular- ly in regard to the matter of control, is even more tenu- ous.8 a In the event that the Board , on review of this supplemental decision, concludes, contrary to my recommendation, that the net worth and em- ployee complement of The Wood, Wire and Metal Lathers' International Union must be aggregated with that of the Applicant , I recommend that Continued LATHERS LOCAL 46 (BUILDING CONTRACTORS) 511 The General Counsel's motion to dismiss the applica- tion on the basis of the Applicant's alleged ineligibility is therefore denied. C. The Substantial Justification Question Section 504(a)(1) of EAJA provides that an award shall be made to a prevailing party unless "the position of the agency as a party to the proceeding was substan- tially justified or . . . special circumstances make an award unjust." The burden of establishing substantial jus- tification is on the Government and the test of whether governmental action is substantially justified is one of reasonableness. The government, to defeat an award, must establish that its position had a reasonable basis in fact and law. However, the fact that the Government lost its case does not give rise to any presumption that its position was unreasonable and the "substantially justi- fied" standard does not "require the Government to es- tablish that its decision to litigate was based on a substan- tial probability of prevailing."e Moreover, as the Board has recently pointed out, the Government's position might still be deemed reasonable in fact and law notwith- standing that the General Counsel failed to establish a prima facie case.'O The "special circumstances" excep- tion was included in the statute to permit the govern- ment to advance "in good faith the novel but credible extensions and interpretations of the law that often un- derlie vigorous enforcement efforts."" It permits the liti- gation of close questions of fact or law.12 The General Counsel, acknowledging its burden to es- tablish substantial justification, contends that its positions were reasonable both at the time that complaint first issued, January 23, 1978, and when the hearing resumed after a 2-year hiatus in September 1980. Particularly, it points to the language of the hiring hall agreement, anal- ysis of the hiring hall records showing a preponderance of referrals to union members, and the Applicant-Re- spondent's limited cooperation in the investigation of the underlying unfair labor practice charges. The General Counsel further contends that it acted reasonably in liti- gating the EAJA case inasmuch as it involves issues of first impression and thus argues that the Applicant's re- vised request for fees and expenses incurred in the EAJA proceeding should be denied. The Applicant, pointing specifically to the findings and conclusions set forth in my decision and order, as affirmed by the Board, dis- putes the General Counsel's contentions of substantial justification. It asserts that the General Counsel totally the Applicant not be penalized for its failure to submit with its applica- tion a detailed exhibit showing the net worth of the Applicant and any affiliates (as defined in Sec 102.143(g)) as required by Rule 102 147(t). My order on motion to dismiss application required the Applicant to pro- vide information concerning the net worth of the International union did not specifically require the furnishing of a detailed net worth statement If the affidavit that it submitted is considered insufficient, due process would require that the Applicant be permitted additional time to furnish appropriate documentation S Rep No. 96-254 at 6-7, 14-15 (1979), H R Conf Rep No 96- 1418 at 10-11 (1980); Stanley Spencer v. NLRB, 548 F Supp 256, 261 (D C. Cir 1982) 10 See Enerhaul, Inc, 263 NLRB 890 (1982) 11 S Rep No 96-253, supra at 7, H.R Conf. Rep No 96- 1418, supra 12 126 Cong Rec H10226 (daily ed Oct. 1, 1980) misunderstood the rules and procedures under which the hiring hall operated, causing it to misplead substantial portions of the complaint and further causing it to place unwarranted reliance on alleged numerical disparities in the referral of members and permitmen . This failure to comprehend how the hiring hall operated, the Applicant contends, resulted from a faulty and inadequate investi- gation. Contrary to the General Counsel, the Applicant contends that this case did not present either close or novel questions of fact or law. Resolution of these issues requires examination of the General Counsel's conten- tions, the evidence that it possessed and adduced in sup- port of those contentions, and my findings thereon. As described more fully in my initial decision, the Union's jurisdiction included inside skilled lathers' work and outside less-skilled work that was the laying out or preparation of reinforcing structural steel preliminary to the pouring of concrete for slabs, beams, and columns. The outside work included both general and specific work skills. The Union's geographical jurisdiction includ- ed the five boroughs of New York and considerable sub- urban territory outside those boroughs. The Applicant operated a hiring hall under rules estab- lished pursuant to a consent decree and settlement agree- ment approved by Judge Marvin E. Frankel in settle- ment of an action under title VII of the Civil Rights Act of 1964. The agreement provided for the opening of the Union's hiring hall to nonmembers, particularly members of minority groups, by permitting them to acquire work permits for outside work. It required nondiscriminatory referrals but permitted preference on the basis of experi- ence where specific skills were required. Specifically es- tablished was a system of acquiring priority for referrals by those who had registered six or more times in a 2- week period. All employment was supposed to be se- cured through the hiring hall; employees were not sup- posed to secure their own employment and, if they were laid off for more than 1 day, they were supposed to return to the hiring hall and register for referral to subse- quent employment. Employers were, however, permitted to transfer workmen between jobsites so long as there was no break in the continuity of employment. The Union was precluded from granting employer requests for the referral of specific individuals except as foreman; it was, however, permitted to fill requests for minority group workmen. The agreement required the Union to plan, establish, and publicize training programs to in- crease the specific experience of permitmen for outside work. The employers with whom the Union had collective- bargaining agreements were not parties to the consent decree and agreement. However, the contracts between the Union and two associations of employers provided for the establishment of an exclusive hiring hall and adopted the rules set forth in the consent decree and agreement as the rules governing the operation of that hiring hall. The record does not reveal whether a similar incorporation of those rules and procedures existed in the collective-bargaining agreements between the Union and the other employers with whom it had collective- bargaining agreements. 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The terms governing the operation of the Union's hiring hall required that extensive records be prepared and maintained . Included in these records was documen- tation of the employees' signing in at the hiring hall, the contractors' requests for workmen, the referrals in re- sponse to such requests, and the reports from the jobsites indicating the work performed and by whom. These records were collated by computer into periodic activity reports. The General Counsel's original complaint, dated Janu- ary 23, 1978, alleged that the Union had discriminated against the permitmen by failing to follow the priority system established by the hiring hall rules and by permit- ting bookmen to obtain employment directly from the employers, thus circumventing the hiring hall. When that complaint issued, the General Counsel possessed the ac- tivity reports detailing the referral activity in the hiring hall. From those acitivity reports it appeared that the lit- eral terms of the priority system were, indeed, being ig- nored to the detriment of the the permitmen. The Gener- al Counsel also possessed affidavits from a number of the permitmen indicating use of out-of-date priority lists and attributing statements to the Union 's business agents that were susceptible to an interpretation establishing a pref- erence and an intention on the part of those business agents to refer bookmen.' 3 Once the hearing was resumed in September 1980, evi- dence was introduced that established that the above-de- scribed system of according priorities had fallen into dis- array by 1975 due to the fact that the number of job seekers was far out of proportion to the relatively few jobs available. About September 1, 1976, after nearly 2 years of referrals being made from backlogged priority lists that were months or years old, the priority system was abandoned by authority of the hiring hall's court-ap- pointed administrator. Referrals after that date were made according to the order of daily sign-in. The Gener- al Counsel was apparently unaware of the backlog of pri- ority lists used during the 1975 and 1976 and was similar- ly unaware that the use of those lists had been aban- doned with the administrator's permission . As I found, this misunderstanding as to the operations of the priority sytems caused the General Counsel to misplead those as- pects of the complaint that related to the priority system. 13 Ultimately, the General Counsel introduced the testimony of several permitmen to this latter effect I found those statements to be neither "sufficiently numerous or persuasive, when viewed against five years of referral activity, to overcome the valid explanations for the disparity in referrals or the evidence establishing the unreliability of the activity reports as proof of discrimination " 260 NLRB at 630-631 , 638-639 The General Counsel submitted , as attachments to its answer to the applica- tion here, affidavits of 15 permitmen , including 4 charging parties, whose testimony was never offered . The General Counsel contended that by the time this case resumed for hearing in September 1980, after the 2-year hiatus for settlement discussions, these individuals had become either un- available or uncooperative Contained in the affidavits of three of those employees are statements similar to those contained in the record, which tend to show a preference by the business agents for bookmen Nine, I would conclude, merely confirmed data contained in the activity reports or expressed the witnesses' belief that they had been discriminated against for various reasons Three of these affidavits , it appears, were received by the General Counsel subsequent to July 1979, including two taken in early August 1980 None of these latter affidavits contribute probative support to the General Counsel's position The General Counsel asserts, without contradiction, that the Union had cooperated only minimally in the in- vestigation of the unfair labor practice charges and fur- ther asserts that it was justified in proceeding to com- plaint and litigation in reliance on evidence indicating that the priority rules had never been changed in writ- ing, that the Union remained under the obligation to comply with those rules, and that it failed to do so. In light of activity reports tending to show that the priority system was being ignored and the affidavits of at least some permitmen tending to establish reliance on out-of- date priority lists and a willingness on the part of the Union's business agents to favor the bookmen, and in the absence of cooperation by the Union during the course of the investigation, which might have corrected the General Counsel's misunderstandings , I must conclude that the General Counsel had a reasonable basis in fact for issuing the complaint , amending it when the hearing reopened , and proceeding through the litigation, at least until that point where its misunderstandings became ob- vious.' 4 Accordingly, to the extent described above, I find that the General Counsel's position was substantially justified. However, when it became clear that the evidence would not support complaint allegations based on alleged breaches of the priority system, the General Counsel changed its theory to allege more generally widespread discrimination against the permitmen based on its analy- sis of the activity reports showing that bookmen re- ceived far more referrals, with far fewer hiring hall reg- istrations, than permitmen. As I stated in my initial deci- sion: . . . Examined broadly, comparing only the member referrals against those received by non- members, the statistics would seem to support the General Counsel's contentions. Clearly, the journey- men-members of Local 46 received the lion's share of the referrals. Such a broad examination, howev- er, is misleading [260 NLRB at 638]. I found that in making its comparison of member and nonmember referrals, the General Counsel had disregard- ed the recognized exceptions to the referral system for inside workers and specifically skilled outside workers. Its failure to consider these exceptions led to "fallacious conclusions . . . of no probative value in determining whether or not the Union operated its hiring hall in a discriminatory manner." (260 NLRB at 638.) To the extent that the General Counsel recognized the existence of these exceptions, it argued that the Union falsely la- beled contractors' requests as requiring specific experi- ence so as to exclude permitmen from the referrals. The 14 This is not to stay that the General Counsel was blameless in regard to this misunderstanding Evidence on this point and others could have been secured from the court -appointed administrator Indeed, when, on November 16, 1978, the General Counsel brought to my attention the ad- ministrator's refusal to comply with a subpoena unless authorized to do so by the district court from which his appointment stemmed , I directed that the General Counsel and the admimstrartor go to that court for the necessary authorizations The General Counsel did not further pursue that avenue LATHERS LOCAL 46 (BUILDING CONTRACTORS) 513 General Counsel also argued that the Union had failed in its obligation to provide training for specific experience jobs to the permitmen . I found that neither allegation was encompassed within the complaint nor supported by record evidence. I further found that when the General Counsel's specific examples of alleged discrimination were examined in light of the recognized exceptions to the referral procedures, no conclusion of discrimination was possible. Accordingly, as this principal theory underlying the General Counsel's continuation of the litigation had nei- ther a factual nor a legal basis to support it, I must con- clude that the General Counsel has failed to sustain its burden of proving that its portion in this regard was sub- stantially justified or otherwise reasonably based in fact or law. 15 In the initial litigation , as previously stated, the Gener- al Counsel had contended that Respondent had breached the duty of fair representation owed to all those who sought employment through the referral system by fail- ing to enforce the hiring hall rules on workers who se- cured employment without union referral and on con- tractors who called back employees or hired them direct- ly. I found that even if such a contention had a basis in law, the record evidence did not support the allegation. Both members and nonmembers, including some of the Charging Parties, had benefited from direct hires and callbacks. There was no evidence that employers were encouraged by the Union to hire members directly or to call them back. Moreover, the preponderance of call- backs and direct hires of members over nonmembers, I found, could be as rationally explained on the basis of the members' specific inside and outside work skills (fac- tors ignored or disregarded by the General Counsel) and the likelihood that they were better known to the em- ployers because of their longer service in the industry as by any supposed preference for union members. I further found that the statistical record relied on by the General Counsel was too open to the possibility of error, particu- larly error resulting from missing stewards' reports, to support the General Counsel's allegations . This was espe- cially pertinent, I found, to the callback allegations inas- much as a missing steward's report would make it appear as if all of the employees on the jobsite had benefited from callbacks. Finally, I found, in the absence of any evidence that any of the hundreds of employers who se- cured employees through the Union's hall, other than those who were members of two named associations, were bound to comply with the hiring hall rules, I could not conclude that the Union could have effectively en- forced the rules had it chosen to do so. In light of these conclusions, all of which were upheld by the Board, I must conclude that the General Counsel has failed to sus- tain its burden of proving that its position in regard to 16 See Tyler Business Services v NLRB, 695 F 2d 73, 75-76 (4th Cir 1982), where the court concluded that the fact that "the government's preliminary decision to institute an administrative proceeding may not justify an award of attorney's fees would not precluded an award, if at subsequent stages of the administrative process it appears that the government's position at these levels of litigation was not substantial- ly justified the callback and direct-hire allegations were substantially justified. Finally, notwithstanding that I found evidence of dis- crimination in the Union's refusal to appoint stewards from among the permitmen who were journeymen in other locals, I must conclude that the General Counsel's position in regard thereto, as asserted in its brief, was without substantial justification. As found by the Board, the General Counsel had failed to put this question in issue at the hearing. In light of that failure, its position in regard to this contention can hardly be deemed substan- tially justified or reasonable in fact or law. D. Applicability of EAJA to Fees and Expenses Incurred Prior to October 1, 1981 The General Counsel reasserts the position taken ini- tially in its motion to dismiss the application, that fees and expenses incurred prior to October 1, 1981, the ef- fective date of the EAJA, are not recoverable . The Gen- eral Counsel argues that "traditional rules of statutory construction, sovereign immunity, and the Congressional purpose underlying an enactment of the EAJA" warrant such a construction. In my order denying the motion to dismiss, it was stated: I am satisfied that the "plain, clear and common meaning" of both the statutory and regula- tory language supports the conclusion that EAJA was intended to apply to expenses and fees incurred before October 1, 1981 and that there exists no clear direction from Congress to the contrary [footnote omitted]. This was the conclusion reached by the Courts in Heydt v. Citizens State Bank, 668 F.2d 444 (C.A. 8, 1982), Wolverton v. Schweiker, 533 F. Supp. 420 (D.Ct. Id., 1982), and Photo Data, Inc. v. Sawyer, 533 F. Supp. 344 (D.D.C., 1982). Subsequent authority buttresses my earlier conclusion. Thus, in Tyler Business Services v. NLRB, supra, the United States Court of Appeals for the fourth Circuit found pre-October 1, 1981 fees and expenses recoverable, stating that "The Act's test for recovery for attorney fees is whether the case was pending on or after October 1, 1981, and not when the fees were incurred."18 Most persuasive, I believe, is the decision by Judge Bryant for the United States District Court for the District of Co- lumbia in Nunes-Correia v. Haig, 543 F.Supp 812 (1982). Recognizing that prior to the passage of EAJA, "the doctrine of sovereign immunity barred fee awards against the United States absent clear or express statuto- ry authority to the contrary" 17 and responding to the 16 The court cited Hutto v Finney, 437 U S 678, 694 fn 23 ( 1978), and Bradley v School Board, 416 U S 696, 711-721 (1974), noting that " the statutes involved in those cases and the Equal Access to Justice Act ad- dress similar concerns," making the rationale of those cases applicable to EAJA cases The Board has filed a petition for rehearing and a sugges- tion rehearing en bane in the Tyler case 17 Alyeska Pipeline Co. v Wilderness Society, 421 U S 240,267-268 (1975) 514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Government's argument that no language in EAJA ex- pressly or unequivocally waived sovereign immunity re- toractively, Judge Bryant stated that he was inclined "to hold that the plain language of the statute explicitly au- thorizes fees for pre-October 1, 1981 work" and to find any alternative construction of the Act "strained." How- ever he found it unnecessary to reach that holding, con- cluding from the Congressional Budget Office (CBO) cost estimates that Congress intended EAJA to apply to pre-October 1, 1981 fees and expenses. He stated, in an analysis worth repeating here, the following: According to the government, had Congress ex- pected parties to be able to recover pre-October 1, 1981 fees in pending cases, Congress would have forcasted substantially greater expenditures during the Act's first year, when old cases such as the one here with large accumulated legal fees were being decided or settled, than in the Act's second or sub- sequent years. The statistical reasoning underlying this argument is flawed. Since, ceteris paribus, the distribution of long-lived and short lived cases ter- minated in 1982 and each subsequent year will remain constant, awarding fees for the entire litiga- tion in cases pending on or after October 1, 1981 can be expected to result in constant expenditures over the years. If, however, the Act does not cover pre-October 1981 work in pending cases, the estimated total payout will increase with the amount of post-Octo- ber 1981 work performed in the cases. Since cases filed a long time before October 1, 1981 and termi- nated shortly after October 1981 will present less post-October 1981 work than cases terminated many years after 1981, under this assumption annual expenditures will rise sharply during the Act's first years, and then level off. In fact, the Congressional Budget Office predict- ed that the annual expenditures under the Equal Access to Justice Act will vary directly with the number of cases terminated each year. In addition, the CBO assumed that the cost will increase as a result of increases in the federal caseload generally and as a result of inflation. Finally, the CBO pre- dicted that the Act's incentive structure will over time increase the size of the awards and the number of cases in which awards are made. H.R.Rep. No. 1418, 96th Cong. 2d Sess. 21 reprinted in [1980] U.S. Cong. & Ad. News 4943, 4984, 5000 ("House Report"). When Congress passed the Equal Access to Jus- tice Act, it had available the CBO estimate. Con- gress' acceptance of that estimate's assumption that the cost of the Act would vary only with cases' te- mination rate, inflation, and the Act's incentive effect, demonstrates that Congress clearly intended the Act to authorize fees for work performed before October 1, 1981.18 18 As the Government had in Nunes-Correia, the General Counsel here argued in both its motion to dismiss and in its answer that the CBO esti- mates support its arguments against retroactivity In denying its motion to dismiss, I had included Judge Bryant further stated, in Nunes-Correia, that he would have reached the same conclusion even absent the CBO estimate, citing Bradley v. School Board, 416 U.S. 696 (1973); Hutto v. Finney, 436 U.S. 678 (1977); and re- lated cases. Judge Bryant noted that the Supreme Court had applied the fee recovery statutes involved on these cases retroactively even in the absence of statutory lan- guage and legislative history. As he pointed out, the case for retroactive fees and expense is stronger under EAJA than it was under the statute involved in Bradley (provid- ing for attorney fees in desegregation cases), which did not contain the "pending on or after" language of EAJA. Accordingly, I must conclude that recovery of the fees and expenses incurred by the Applicant prior to Oc- tober 1, 1981, is not barred by the statute. E. Recovery of Fees and Expenses Incurred in Prosecuting the EAJA Application Included in the fees and expenses sought by the Appli- cant are those that it incurred in prosecuting this EAJA application. The General Counsel argues that such fees and expenses are not recoverable because they were not incurred "in connection with an adversary adjudication" within the meaning of the Board's Rules, Sections 102.114 and 102.143. The General Counsel further argues that these fees and expenses should not be recoverable because the EAJA proceeding was a significant and dis- crete portion of the underlying proceeding where its po- sitions, involving important issues of first impression, were clearly reasonable. EAJA, itself, is silent on the question of whether the fees and expenses incurred in a proceeding under its terms are themselves recoverable. I believe that if the rights granted by EAJA are to have any meaning, such fees and expenses must be considered recoverable when- ever the Government's position in the underlying pro- ceeding lacks substantial justification. To hold otherwise would, in many cases, severely impinge on the value of the right granted by Congress and discourage otherwise prevailing litigants from contesting unreasonable govern- mental actions, contrary to the stated purposes of the Act. The only court to consider this question, the Fourth Circuit in Tyler Business Services supra, reached this same conclusion, analogizing this case to cases under the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241, 42 U.S.C.A. § 2000 et seq., where such recovery is per- mitted. 119 The estimates [$ 154 million in the first fiscal year, $187 million in the second, and $228 million in the third) were based upon projections of the number of proceedings which would terminate in each year and the increases therein were expressly projected on the basis of anitci- pated growth in the ammount of litigation and in the cost of living They do not appear to have been projected upon different lengths of time dung which the fees and expenses may have been incurred As argued by Respondent, had the CBO intended to encompass only those fees and expenses incurred in the first year of Act's effective- ness, rather than all of the expenses and fees incurred in all of the cases closed in that year, its estimates for [the first fiscal year] would have been much lower than its estimates of cost for the following years. 18 See Young v Kenley, 641 F 2d 192, 195 (4th Cir 1981); Manhart V City of Los Angeles, 652 F 2d 904, 909 (9th Cir 1981), Love Y. Mayor, City Continued LATHERS LOCAL 46 (BUILDING CONTRACTORS) Accordingly I must reject the General Counsel's ob- jection to the granting of the fees and expenses incurred in connection with the EAJA application. F. The Applicant's Fees and Expenses Applicant sought reimbursement, at the rate of $75 per hour, less than his normal billing rate, for 258 hours ex- pended by Applicant's principle counsel, Richard H. Markowitz, in the litigation of the underlying case. It also sought compensation for 10.75 hours expended by Markowitz in regard to the EAJA application. Included within the 258 hours involved in the underlying case were 163.5 hours expended between the issuance of com- plaint and September 1980. I have previously found that the General Counsel's position in the litigation, insofar as it concerned alleged violations of the literal terms of the hiring hall rules with respect to the acquistion of prior- ities and referrals pursuant to such priorities, was sub- stantially justified notwithstanding that this position was ultimately determined to be erroneous. While no precise calculation is possible, it would appear that that theory amounted to approximately 50 percent of the General Counsel's case. The remaining 50 percent, to that point in time, consisting of its allegations concerning callbacks amd direct hires, which allegations I found to be without substantial justification. Accordingly, because it was Sep- tember 22, 1980, when the General Counsel abandoned its priority based theory and commenced to argue a broader theory based on the statistical analysis of the hiring hall records, which theory I have found to be without substantial justification, I shall reduce the fees to which Applicant is entitled by 50 percent of those sought for time spent between January 25, 1978, and September 22, 1980, thus, reducing the allowable compensable hours by 81.75 hours. Additionally, on my own motion I will disallow the 2 hours claimed for Markowitz' time spent at the resumption of the hearing on its final day, January of Cheyenne, 620 F 2d 235, 247 ( 10th Cu 1980), Weuenberger Y Huecker, 593 F 2d 49, 53-54 (6th Cir. 1979); Johnson Y. Mississippi, 606 F 2d 635, 638-639 (5th Cir 1979); Lund v. Affleck, 587 F 2d 75, 77 (1st Cir 1978), and Souza v Southworth , 564 F 2d 609, 614 (1st Cyr 1977) 515 22, 1980. While that resumption had been scheduled to hear the General Counsel's rebuttal testimony, the Gen- eral Counsel had earlier indicated that there would be no such testimony. Respondent then used the time to argue on the record for fees and expenses, a position that was unsupported by then-exisiting law. The Union's motion was also presented in its brief to me. Oral presentation of the motion was unnecessary and resulted in unnecessary expenditures of time and money for all concerned. It would therefore be unjust to permit the Applicant to re- cover attorney fees for time thus expended. I therefore conclude that the Applicant is entitled to the attorney's fees for Richard H. Markowitz for 185 hours at the rate of $75 per hour, a total of $13,875. Applicant seeks attorney's fees, at $65 per hour, for services performed by William T. Josem, an associate of Markowitz, for a total 292 hours expended between Sep- tember 8, 1980, and September 22, 1981 in regard to the underlying case and a total of 24.75 hours expended by Josem in regard to the EAJA application. In view of complexity of the issues and the volume of the extensive record here, I must conclude that an expenditure of 316.75 hours at a rate of $65 per hour is reasonable and that the Applicant is entitled to be reimbursed for these expenses, for a total of $20,588.75. I find that the expenses incurred by the Applicant in regard to the litigation of both the underlying case and the EAJA application, which includes the photocopying of exhibits, the purchase of transcripts, postage, long-dis- tance telephone calls, and witness fees, totaling $4063, is reasonable. CONCLUSIONS Accordingly, I find that the Applicant is entitled to the following Attorney's fees: Richard Markowitz-$13,875. William T. Josem-$20,588.75 Expenses: $4,063 Total $38,526.75