American Pacific Concrete Pipe Co., Inc.

134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Pacific Concrete Pipe Company , Inc. and General Truck Drivers, Warehousemen and Helpers Union Local 467, International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men And Helpers of America, AFL-CIO.' Case 31-CA-10098(E) July 29, 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On February 11, 1987, Administrative Law Judge Clifford H. Anderson issued the attached second supplemental decision . The Applicant filed exceptions and a supporting brief. The General Counsel filed limited cross-exceptions and an an- swering brief to the Applicant 's 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 only to the extent consistent with this Decision and Order. On August 23, 1984, the National Labor Rela- tions Board issued a Supplemental Decision and Order2 in this proceeding denying the Applicant's application for an award under the Equal Access to Justice Act (EAJA) on grounds that the Appli- cant's net worth exceeded $5 million. The Appli- cant filed a petition for review with the United States Court of Appeals for the Ninth Circuit, which on April 25, 1986, reversed the Board's find- ing that the Applicant was disqualified from an EAJA award on the basis of its net worth, and re- manded the case for further proceedings on the Applicant's claim. 3 The Board accepted the court's remand and, after considering position statements from the Applicant and the General Counsel, on October 7, 1986, remanded the case to the adminis- trative law judge for a second supplemental deci- sion consistent with the court's remand. 1. In the attached decision , the judge found that the General Counsel was substantially justified in including discriminatee Milton Womack in a back- pay specification and pursuing his claim until she moved to withdraw his claim from the proceedings on the second day of the backpay hearing. The judge concluded that the General Counsel pos- ' On November I, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 271 NLRB 1171. 3788 F.2d 586. sessed conflicting evidence concerning whether Womack was unable to work because of disability during the backpay period and therefore was justi- fied in refusing to resolve the evidence administra- tively. He therefore recommended that the Appli- cant's application for fees be denied . Contrary to the judge, we agree with the Applicant that the General Counsel's failure to investigate the disabil- ity issue was unreasonable, and resulted in her taking a position that was not substantially justified. The relevant facts are undisputed . Following a Board and court adjudication4 that the Applicant, inter alia, unlawfully refused to recall Womack in April 1980, the parties could not agree on a back- pay figure and a backpay specification issued Sep- tember 23 , 1983, covering the period from January 28, 1981 to September 30, 1982. Womack worked for the Applicant as a truckdriver until March 1979, when he was injured. He was physically unable to work until January 1981. In 1983 Womack informed the General Counsel that in January 1981 his physician , Dr. Freedle, signed a release stating Womack was fit to work, after which Womack sought truckdriving jobs but found none. According to Womack, the release Freedle signed was destroyed in a garage fire. Womack later returned to Dr. Freedle 's office and obtained another written release, dated June 28, 1983, which stated Womack was fit to work begin- ning January 28 , 1981.5 Womack gave this release to the General Counsel . By September 2, 1983, however, the Applicant had informed the General Counsel that Womack had been disabled during the entire backpay period, and on September 15, 1983, the Applicant provided a letter renewing this argu- ment and enclosing a February 25, 1982 report from Dr. Freedle to the Applicant's insurance com- pany stating Womack had been unable to work at any time since the 1979 accident and was complete- ly disabled.6 The Applicant further asserted that Womack had been receiving disability payments from its insurer during the backpay period. The General Counsel concedes that if Womack was unable to work, he is not entitled to any back- pay. Nonetheless, the General Counsel made no effort to contact Dr. Freedle in order to resolve the conflicting evidence in her possession. The September 23, 1983 backpay specification named Womack as a claimant entitled to $43,186.79, ex- 4 262 NLRB 1223 (1982), enfd. 709 F 2d 1514 (9th Cir 1983). 5 Although the release bore Dr. Freedle's name on his office letter- head, the judge found that it was apparently signed by someone else be- cause the initials "ss" had been parenthetically inserted under his signa- ture 6 This report was also on Dr. Freedlds letterhead and the initials "ss" appeared under his signature. 290 NLRB No. 22 AMERICAN PACIFIC CONCRETE PIPE CO eluding interest; and the General Counsel contin- ued . to press Womack's claim until January 31, 1984, when at the hearing she withdrew his name from the specification without giving a reason. The judge regarded the conflicting reports from Dr. Freedle as disputed evidence concerning whether Womack was disabled. The judge held the disability issue was an affirmative defense and therefore the General Counsel was under no obli- gation to investigate the disability issue further. Although the evidence in the General Counsel's possession was indeed "conflicting," it did not re- quire a credibility determination by a judge be- cause the inconsistent medical reports came from the same physician-Dr. Freedle. The judge found, and we agree, that the conflict could have been re- solved if the General Counsel had contacted the doctor and ascertained, if possible, whether Womack was disabled during the backpay period. *After the General Counsel learned that Dr. Freedle had issued reports directly at variance with one an- other and critical to the resolution of Womack's backpay issue, she was not substantially justified in refusing to make a simple inquiry to the one wit- ness whose account could have resolved the con- flict. We conclude that the General Counsel must at least assess the information she obtains during the investigation and address patent inconsistencies susceptible to conclusive resolution. In the context presented here, this obligation would have been minimal . Consequently, we find no merit in the General Counsel's position that she was justified in prosecuting the backpay issue because the Appli- cant has the burden of adducing evidence to dis- prove backpay liability.? The judge, in the event the Board disagreed with the finding that the General Counsel was substan- tially justified in the Womack matter, made condi- tional findings concerning the fees and expenses to which the Applicant is entitled. We agree with the judge's denial of the Applicant's expenses incurred before September 23, 1983, when the backpay spec- ification issued, and denial of compensation for the Applicant's costs incurred in an unsuccessful U.S. district court suit in October 1983 to compel pre- hearing discovery. We also agree with the judge that the attorney's fees shall be limited to $75 an hour. The Applicant's original Application sought $8845 in fees and $538.59 in expenses; it subse- quently amended the Application for an additional $1682.85 in fees and expenses. The judge noted, 7 In view of our adopting the judge's finding that the General Counsel could have resolved Womack's backpay issue merely by consulting Dr Freedle, we find it unnecessary to pass on the judge's discussion of burden of proof in backpay specifications, or his reliance on Phil Schmidt & Son, 276 NLRB 1157 (1985), enf denied 810 F 2d 638 (7th Or. 1987) 135 and we agree, that liquidation of the award would not require a remand because the General Counsel did not challenge the Applicant's fees and • expenses but for the $75 ceiling on attorney fees, the discov- ery lawsuit, and expenses incurred before the back- pay specification issued." We have taken the total claimed fees and ex- penses and reduced them in accord with the above limitations. Where it is unclear whether the Appli- cant incurred costs relating to Womack's backpay specification or the discovery suit, we have drawn reasonable inferences based on the Applicant's entry descriptions and the time period in which the fee or expenditure occurred. We will award attor- neys fees of $3086.25, based on the $75-per-hour rate, and expenses of $1456.47, for a total of $4542.72. In addition, the Applicant requests its costs involved in appealing the judge's decision. We award those expenses as well on the submission of an adequately documented request.9 ORDER The National Labor Relations Board orders that the Applicant, American Pacific Concrete Pipe Company, Inc., Los Angeles, California, be award- ed the sum of $4542.72, pursuant to its application for an award under 'the Equal Access to Justice Act, plus additional fees and expenses incurred in connection with its appeal of the judge's decision. APPENDIX Date-Service-Time 4/22/84 Call from Liz Cox re labor matter-.1 4/27/84 Call to Al Bea, discussion re Teamsters prob- lem-.2 6/3/84 Long telephone call(s) to Lloyd and Ownbey re letter of 5/26/83 of Regional Director; steps to implement Order; letters to Regional Direc- tor and call to Al Bea re hiring procedures-.8 10/6/83 Review of filed examiners' report call to Miss Young-.6 10/6/83 Various calls to Ms. Young, Rachel NLRB re the possibility of settlement: calls to Russer & Al Bea-.4 10/06/83 8 See attached appendix, which identifies all fees and costs awarded 8 The Applicant has requested a remand to the judge for this purpose We provisionally deny the request, but if the parties are unable to agree within a reasonable period of time concerning the amount of fees and ex- penses incurred in the instant appeal, the Applicant should submit to the judge a revised application for costs consistent with this Order 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Travel time and various appearances in con- nection with Teamster matters-2.5 11/14/83 Review correspondence from field examiner Middleton and NLRB factual info re back-pay computation; memorandum to Mr. Bea-.5 11/15/83 Review NLRB procedures for subpoena of witnesses at hearing; memorandum to Mr. Bea re NLRB procedures-.1 11/16/83 Conference(s) with Mr. Bea re subpoenas and subpoena duces tecum for back-pay hearing; prepare application to Regional Director re discriminates; research re federal counterpart to state custodian of records deposition; memorandum to Mr . Bea re federal proce- dure-1.1 11/16/83 Go over factual information from NLRB as each Teamster; memos to Al Bea in each re further investigation ; call Appling-1.1 11/16/83 Conference(s) with Mr. RWR re subpoenas re custodians; claimants amt. call to Appling-.1 11/17/83 Conference with CB re 12/ 13 Hearing-.2 11/17/83 Research with RWR re subpoena duces tecum-.2 11/17/83 Conference(s) with Mr. Bea re subpoenas for hearing; telephone call(s) to NLRB re subpoe- na procedures; prepare application for record custodians subpoena duces tecum-.6 11/18/83 Conference with Carlos Bea re various claims-.2 11/21/83 Call to Al Bea re Teamsters problem.2 11/21/83 Call(s) from Rachel Young re subpoena proce- dures for custodians of records; instructions re subpoena applications-.2 11/22/83 Final P&O of application for hearing subpoe- nas; letter(s) to Regional Director re applica- tion and issuance-.2 11/26/83 Conference(s) with Mr. Bea hearing re subpoe- nas; telephone call(s) to NLRB Staff Counsel re NLRB procedure to authenticate records; call(s) to office of Administrative Law Judge, S.F. re NLRB procedure; call(s) to Rachel Young, NLRB Staff Counsel, LA re NLRB procedures-.6 11/28/83 Telephone call(s) with Rachel re issuance of subpoenas and presence at hearing of record custodians; letter(s) to Young re telephone call(s); conference(s) with Mr. Bea re issuance and service of subpoenas-.3 11/29/83 Calls to Al, Mussor & Rachel Young-.8 11/28/83 Prepare attachments to subpoenas re docu- ments and records; prepare declaration re au- thenticity of records; prepare supplementalap- plication for subpoena duces tecum; letter(s) to Regional Director re subpoena duces tecum; telephone call(s) to Rachel Young re agree- ment of custodians nonappearance at hearing; research re fees tendered to custodians--.6 11/30/83 Review letter(s) from Rachel Young re record custodians; telephone call(s) to Young re sub- poenas; telephone call(s) to Regional Direc- tor's office re subpoenas; letter(s) to Regional Director re subpoena delay & hearing continu- ance; prepare cover letter(s) for delivery with subpoenas; organize attachments to subpoe- nas-.6 11/30/83 Call to Al Bea re Boothly backup check; Womack ditto-.2 12/1/83 Preparation of NLRB subpoenas for service; instruct re completion of subpoenas ; letter(s) to process service re service instructions; tele- phone call(s) to process service re instructions; review completed subpoenas-1.4 12/3/83 Prepare declaration of bank operations officer re time necessary to produce subpoena document(s)-.2 12/6/83 Telephone call(s) to Regional Director Gon- beaux re issuance of subpoena duces tecum; telephone call(s) to Rachel Young re issuance of subpoena duces tecum out of SF; telephone call(s) to Walter Kentz, NLRB, SF Regional Counsel re issuance of subpoena duces tecum out of SF; letter(s) to Kintz re request for issu- ance; instruct re letter(s) delivery and subpoe- na duces tecum pick-up; telephone call(s) with custodian of records for Dr. Freedle re Wo- mack's records; telephone call(s) from custodi- an of records for Transamerica Real Estate re preparation and delivery of Craig's records-.6 12/8/83 Telephone call(s) Rachel Young re continu- ance of hearing; telephone call(s) from record custodian, Transamerica Real Estate re Craig AMERICAN PACIFIC CONCRETE PIPE CO records; instruct re Federal Express Service of additional subpoenas for records of Craig and Boothby, letter(s) to posi-serve re subpoena service; conference(s) with Mr. Bea subpoenas and hearing continuance-.6 12/9/83 Call re imputations on the back pay specifica- tion-.1 12/9/83 Preparation Womack cross-examination and calls from Musser and instructions to Mr. Richardson re research "deferral" question 1:00-6:00-5.0 12/9/83 Work on preparation of material recieved re subpoenas; telephone call(s) from attorney(s) for Household finance re subpoena; instruct re follow-up to subpoenas served on records cus- todians-. 1 12/11/83 Prepare returned subpoenas for filing with NLRB; complete motion to continue hearing; complete organization of subpoenaed records for use at hearing-. 1 12/12/83 Proofread and correct motion to continue hearing and supporting declarations; telephone call(s) with attorney(s) for Anaheim Citrus re declaration showing time needed to produce records; prepare files re returned subpoenas, NLRB rules etc. for use at hearing-1.0 12/13/83 Telephone conference(s) with Mr. Bea re con- tinuance of backpay hearing, calendar new hearing date-.3 12/13/83 Telephone conference(s) with Mr. Bea' re con- tinuance of backpay hearing, calendar new hearing date-.3 12/14/83 Conference(s) with Mr. Richardson re discov- ery and dictate memo on way home in plane- .3 12/15/83 Telephone call(s) to posi-serve re service on Roland and return of proofs of service for sub- poenas-.3 12/17/83 Work w/ secretary to get insurance co. records w/o subpoenas (12/16) secretarial time included-.5 12/27/83 Instruct re preparation and service of subpoe- nas re Womack's disability claims; review sub- poenas prepared for service-.5 12/28/83 137 Telephone call(s) from custodian of records, Occidental Insurance re Womack records-.2 12/28/83 Review Womack's disability claims for Occi- dental Insurance policy number; telephone call(s) to record custodian for Occidental re policy number; follow-up letter(s) to custodian; instruct re preparation and service of Roland subpoenas; follow-up letter(s) to Tel-Tech re bank account addresses and numbers-1.0 12/29/83 Telephone call(s) to Rachel Young, left mes- sage to call back; review correspondence from Security Bank re Boothby records; letter(s) to Security re Boothby records; telephone call(s) from Rachel young re stipulation for admissa- bility of custodian declarations; confirming letter(s) to Young re stipulation & Womack's social security records-.4 12/30/83 Telephone call(s) to Tel-Tech investigations re bank account search, left message to call back; review records from Pierce National Insurance re Womack; telephone call(s) to Pierce Nation- al, left message to call back; telephone call(s) from Tel-Tech re bank account search-1.8 1/2/84 Womack: work on Pierce, Directors Insur- ance, bank meeting-.3 1/4/84 Telephone call(s) from social security SF branch director re Womack's disability records; telephone call(s) to Rachel Young re Womack authorization, left message to call back; letter(s) to Young re authorization-1.3 1/5/84 Telephone call(s) from Rachel Young re Wo- mack's social security records-.3 1/06/84 Call from Porky Armenta; and to Neal Carter; various calls to do work that should have been done 11/16 (memo)-1.0 1/6/84 Telephone call(s) to Manhattan Life, N.Y. re Womack records-.3 1/9/84 Work on declarations of the custodian of records-.3 1/9/84 Telephone call(s) to Manhattan Ins. re Womack records; follow-up letter to Manhat- tan-.4 1/11/84 Call(s) with Rachel Young re meeting to review records delivered to NLRB; conference(s) with Mr. Bea re meeting with 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Young; review subpoena file re records deliv- ered to NLRB-.4 1/12/84 Review transcript of 12-13-83 hearing re legal issues which require research-.2 1/13/84 Review correspondence from Rachel young re Foundational Objections Agreement; tele- phone call(s) to Young re agreement; conference(s) with Mr. Bea re agreement-.5 1/16/84 Womack; declaration to Safeway Stores re 8/82 application by Womack-.3 1/16/84 Telephone call(s) to bank custodians re records of Craig, Boothby and Womack; conference(s) with Mr. Bea re bank records- .2 1/18/84 Womack check decision-.2 1/18/84 Conference(s) with Mr. Bea re Womack's workers' comp award and Craigs financial statements-.4 1/19/84 Conference(s) with Mr. Bea re trial brief and issues re burden of proof-.2 Date-Description of Charges-Amount 10/19/83 Telephone time and charges-$ 6.99 10/19/83 Photocopies-7.67 10/29/83 Robert W. Richardson out of pocket expenses: parking, mileage, tolls, etc.-.30 10/30/83 Robert W. Richardson out of pocket expenses: parking, mileage, tolls, etc.-35 10/31/83 Robert W. Richardson out of pocket expenses: parking, mileage, tolls, etc.-38 11/1/83 Robert W. Richardson out of pocket expenses: parking, mileage, tolls, etc.-.43 11/02/83 Robert W. Richardson out of pocket expenses: parking, mileage, tolls, etc.-.30 11/11/83 Richard Idell Airfare to Los Angeles reimbur- sement-hearing of 10/11/83-30.00 11/11/83 Robert W. Richardson out of pocket expenses: parking, mileage, tolls, etc.-.38 11/11/83 Telephone time and. charges-9.63 11/16/83 Photocopies-2. 10 12/5/83 Special T Messenger Service-.88 12/5/83 Federal Express-12.50 12/6/83 Los Angeles Superior Court filing fee-23.00 12/7/83 Sonic Air Courier-20.00 12/10/83 Investigative Consultants-Corporate Report- 7.50 12/12/83 Carlos Bea air fare to Los Angeles for trial- 35.75 12/14/83 Telephone time and charges-10.32 12/14/83 Photocopies-8.13 12/14/83 Telephone time and charges-10.31 12/14/83 Photocopies-8.12 12/14/83 Federal Express-3.12 12/23/83 Federal Express Air Freight-44.75 12/23/83 Federal Express-12.50 12/29/83 Federal Express-3.20 12/29/83 Security Pacific National Bank-9.20 1/6/84 Federal Express-4.00 1/6/84 Federal Express-3.02 1/6/83 Transamerica Occidental Life Insurance- 12.85 1/6/83 Special T Messenger Service-42.63 1/12/83 Federal Express-75.85 1/12/83 Federal Express-15.63 1/12/83 Federal Express-.33 Neal Carter and Associates Performed services rendered: Investigation: (29-1/2 hrs. @ $25 per. hr. $737.50 Mileage: 122.80 Telephone: (Local & Dist) 190.05 Steno & Miscellaneous 47.50 AMERICAN PACIFIC CONCRETE PIPE CO 139 Total: $1097.85 Labor Relations Specialists Performed services rendered : $75.00 Lloyd C. Ownby Jr. Performed services rendered: 4-1/4 hrs. @ $75 per. hr. $318.75 Rachael Young, Esq., for the General Counsel. Carlos Bea and Robert Richardson, Esqs. (Bea & Schatz), of San Francisco, California, for the Applicant. SECOND SUPPLEMENTAL DECISION Equal Access to Justice Act STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. This second supplmental decision follows an Order of the United States Court of Appeals for the Ninth Circuit remanding the instant matter for further proceedings to determine the Applicant's entitlement to an award of at- torneys' fees under the Equal Access to Justice Act, 5 U.S.C. § 504 (1982), as amended by Pub. L. 99-80, 99 Stat. 183 (1985) (EAJA). More particularly the case arose as follows On 23 July 1982, the Board issued a Decision and Order' finding American Pacific Concrete Pipe Compa- ny, Inc. (the Applicant) had committed certain unfair labor practices among which were the discharges of cer- tain individuals including Milton L. Womack. The Appli- cant was ordered to make these individuals whole. The United States Circuit Court of Appeals for the Ninth Circuit enforced that decision on 28 April 1983 2 There- after the parties were unable to reach agreement regard- ing the backpay due certain individuals including Womack. As a consequence, on 23 September 1983, the Regional Director for Region 31 issued a backpay speci- fication and notice of hearing alleging Womack and others were entitled to backpay for certain periods. The backpay period alleged for Womack spanned the period 28 January 1981 to 30 September 1982. The amount sought, excluding interest , was $43,186.79. On 31 Janu- ary 1984, during the hearing on the backpay specifica- tion, counsel for the General Counsel moved to delete from the backpay specification all reference to Womack thus abandoning all claims made on his behalf. This motion was approved by me without opposition on that date.3 On 1 March 1984 the Applicant filed with the Board an application for an award of fees and other expenses pursuant to the EAJA with respect to the Womack liti- gation. The Board on 9 March 1984 issued an Order re- ferring the application to me for appropriate action. On ' American Pacific Concrete Pipe Co, 262 NLRB 1223 (1982) z 709 F 2d 1514 mem (9th Cir 1983) 3 My supplemental decision concerning the amended backpay specifi- cation with Womack's claim's deleted issued on 22 February 1985 and is now before the Board on exceptions by the General Counsel and the Ap- plicant 29 March 1984 the General Counsel filed a motion to dismiss the application and, on 2 April 1984, the Appli- cant filed an amendment to its application alleging addi- tional expenses On 27 April 1984, 1 issued a supplemen- tal decision dismissing the ' Applicant's application based on a determination that under the Board 's Rules and Regulations the Applicant was not eligible for an award. On 23 August 1984 the Board affirmed this finding and denied the Applicant's application 4 On review of the Board's Supplemental Decision and Order, the United States Court of Appeals for the Ninth Circuit reversed the Board's finding and remanded the matter to the Board on 25 April 1986.5 Thereafter the Board solicited statements of position from the parties. The Applicant submitted a statement of position dated 27 August 1986 and the General Counsel submitted a statement of position on 3 September 1986. On 16 September 1986 the Applicant submitted a re- sponse to the General Counsel's statement of position On 7 October 1986 the Board by supplemental order re- manding proceedings to the administrative law judge re- manded the matter to me for further proceedings as nec- essary to determine the Applicant 's entitlement for an award for attorneys' fees and expenses under the EAJA in light of the court's decision. On 20 October 1986 I issued an order denying the General Counsel's 29 March 1984 motion to dismiss and setting the time for filing of the General Counsel's answer to the application and for the receipt of any re- sponse by the Applicant. On 24 November 1986, the General Counsel filed its answer to the application for award under EAJA and memorandum in support and, on 9 December 1986, the Applicant filed a response. Based on all the above and the record of the backpay hearing, I make the following FINDINGS AND CONCLUSIONS 1. ISSUES NOT NOW IN DISPUTE As a result of the pleadings, the court of appeal's deci- sion in this matter and the parties ' statements to the Board, the following findings and conclusions are not disputed and are found to be true. A. The Applicant Meets the Board's Standard for Eligibility to Apply for an EAJA Award The United States Court of Appeals for the Ninth Cir- cuit decided, supra, that the Applicant met the net worth requirements of the EAJA and is an eligible applicant. Therefore, I find that the applicant is eligible pursuant to Section 102.143(c)(5) of the Board's Rules and Regula- tionss to seek such an award. 4 271 NLRB 1171 (1984) 'American Pacific Concrete Pipe Co v NLRB, 788 F 2d 586 (9th Cir 1986) 6 Sec 102 143 (c)(5) defines applicants eligible to receive awards as "any other partnership , corporation, association , public or private orgam- zaiton with a net worth of not more than $5,000,000 and not more than 500 employees" This $5 million limit was raised in the 1985 amendments to the EAJA (Pub L 99-80, 99 Stat 183 (1985)), to $7 million The court's decision in this matter, however, determined that the original amount was appropriate for testing eligibility in the instant case 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. A Backpay Proceeding Is an Adversary Adjudication Within the Meaning of the EAJA The EAJA provides for fees incurred during an adver- sary adjudication. The Board's Rules and Regulations, Section 102. 143(a) defines the term "adversary adjudica- tion" as including backpay proceedings . Accordingly, the applicant is eligible to seek appropriate fees and ex- penses incurred during the litigation of the backpay pro- ceeding. C. The Applicant's Application Was Timely Filed Although there was some initial dispute concerning the dates on which certain events occurred , it is clear and I find : (1) that the General Counsel withdrew the Womack allegation from the backpay specification on 31 January 1984, and (2) the Applicant filed the instant ap- plication with the Board on 1 March 1984. The Board's standard for filing an application is set forth in Section 102.148 of the Board's Rules and Regulations and re- quires a filing within 30 days of the operative event ending the proceeding. The General Counsel does not dispute, and I find , that Respondent's application was timely filed. D. The Applicant Was a Prevailing Party in Connection with a Discrete Portion of the Backpay Proceeding As a result of the General Counsel 's motion to with- draw the Womack allegation from the backpay specifica- tion and my approval of that motion, there was no formal finding that the General Counsel's claims as to Womack were without merit . There can be no doubt, however, that, on the withdrawal of the allegation, the Applicant was in the identical situation as if it had pre- vailed on this issue after full litigation . Where a govern- ment agency withdraws or changes its position after initi- ating an action, it is clear the applicant must be viewed as if it had prevailed in the litigation . The Board so holds. Shrewsbury Motors, 281 NLRB 486 (1986). There is no dispute that the Womack allegations constitute a discrete portion of the backpay proceeding as required in the Board's Rules and Regulations Section 102 . 143(b). Accordingly, and without dispute by the General Coun- sel, I find that the Applicant was a prevailing party with respect to the Womack allegations. II. DISPUTED ISSUES The issues in dispute at this stage of the proceeding may be divided into three categories. First , the General Counsel makes various threshold attacks on the sufficien- cy of the application and its supporting documentation, which were opposed by the Applicant. Second, the par- ties strongly differ over the question of whether the General Counsel was "substantially justified " in includ- ing Womack in the backpay specification. Finally, assum- ing the substantial justification issue is decided in favor of the Applicant, the parties dispute what portions of the Applicant's claim should be included in an award. It is appropriate to consider these issues separately. A. The General Counsel's Threshold Arguments 1. The deferral issue The General Counsel argues that resolution of the in- stant matter should be deferred until the remaining por- tions of the backpay specification now before the Board are covered by a "final Order of the Board ." A similar motion from the General Counsel was denied with Board approval in the initial decision in this matter.' The General Counsel made a similar motion to the Board in its statement of position on remand after which the Board remanded the matter for further proceedings with- out comment. Under all the circumstances, I can see no reason why the circumstances supporting the earlier re- fusal to defer this case have changed . Accordingly, I deny the General Counsel's motion to defer this case. 2. The General Counsel's allegation that the Applicant failed to properly serve all parties The Board's Rules and Regulations, Section 102 . 148(a) states in part: The application shall be served on the Regional Di- rector and all parties to the adversary adjudication in the same manner as other pleadings in that pro- ceeding... . The General Counsel correctly asserts that there is no evidence that the application or the amended application was served by the Applicant on the Charging Party in the original unfair labor practice case or its attorney. The Applicant made the following statement in its re- sponse to the General Counsel 's statement of position to the Board: The Charging Party "Union and its attorney" may have been parties to the charge (backpay speci- fication) but when Mr. Womack dismissed voluntar- ily on January 31, 1984 with the placet of the Gen- eral Counsel, and of the Administrative Law Judge, and the only matter remaining before the ALJ was the application for fees (not directed against the charging Union) your applicant's counsel is at a loss to determine why the Charging Union or its attor- ney are still "parties" through the "adversary adju- dication." The Applicant renewed its argument that such service was unnecessary in its response to the answer. It is clear that the General Counsel is correct that the Rules and Regulations require service on all parties to the adversary proceeding. The clarity of the rule binds me irrespective of the Applicant's questioning of the un- derlying rationale of the rule. It is a separate matter, however, to determine the consequences of the lack of service at this stage of the proceeding after substantial litigation both before the Board and the court. Given the current status of the case, I find that the earlier service omissions are not fatal to the Applicant's claim and, 7 271 NLRB 1171 (1984) AMERICAN PACIFIC CONCRETE PIPE CO therefore, the General Counsel's motion to dismiss the application based on failure of service is demed.8 3. The General Counsel's attack on the Applicant's documentation .. The General Counsel attacks the specificity of the Ap- plicant's documentation of its fees and expenses. The Ap- plicant notes the General Counsel's attack is essentially de minimis I do not find that the Applicant's documen- tation of fees and expenses is so inadequate as to require either a dismissal of the application or an order udder Rule 102 147(h) of the Board's Rules and Regulations for other substantiation. B. Was the General Counsel "Substantially Justified" in Including Womack in the Backpay Specification and not Withdrawing the Womack Allegation Until Midhearing on 31 January 1984 In order to consider whether the General Counsel was "substantially justified" in including Womack in the backpay specification and in not withdrawing the claim until 31 January 1984, it is necessary to consider: (1) the Board's procedures and substantive law concerning back- pay specifications, (2) the actual actions and knowledge of the General Counsel during the backpay litigation in the instant matter, and (3) the decisional law applying the EAJA to Board procedures. 1. Backpay specifications generally The Board litigates unfair labor practices in a two-step procedure. Generally, allegations of wrongdoing are liti- gated in an initial or unfair labor practice stage. Thereaf- ter, if a respondent has been found to have committed unfair labor practices and has been ordered to remedy those unfair labor practices by the Board and/or a United States court of appeals and, if a dispute arises over whether compliance with that order has been achieved, the Board utilizes a second-step or compliance stage Where, in an initial unfair labor practice proceed- ing, a respondent has been found to have wrongfully dis- charged an individual and has been ordered to reinstate that individual and to make him or her whole for losses suffered and, if a dispute arises concerning the amount of money necessary to make such an individual whole, the compliance stage is initiated through the use of a back- pay specification. A backpay specification normally al- leges the period of time an individual was deprived of employment, the gross amount of wages and other bene- fits that individual would have accrued had his or her employment not been terminated, and admits interim earnings or other events relevant to the individual, which would reduce the amount claimed. There is a sub- stantial body of law dealing with backpay specifications and the burdens of proof assigned to respondent and the General Counsel. Generally, the burden of proof lies with the General Counsel in establishing elements of 8 i also note that the Charging Party in the unfair labor practice case did not make an appearance through counsel or otherwise in the backpay specification litigation Thus a question exists whether the Charging Party was in fact a "party" to the backpay specification within the mean- ing of the rule 141 gross backpay and, equally generally, the burden of proof falls to a respondent to show that there should be deductions from gross backpay.9 2. The Womack allegations' ° The General Counsel's backpay specification alleged Womack as a discriminatee named in the unfair labor practice case and entitled to backpay for the period 28 January 1981 to 30 September 1982 No interim earnings were admitted in the backpay specification and at no time during the backpay period was Womack conceded by the General Counsel to have been out of the job market or unable to work. The Applicant's answer to the backpay specification denied generally all allegations of the backpay specification pertaining to Womack but spe- cifically alleged that Womack's "physical and mental condition" made it impossible for him to work during the backpay period. In October 1983, before the hearing on the backpay specification was held, the Applicant sought from the Regional Director subpoenas to conduct prehearing depositions of Womack and others to obtain evidence in support of its affirmative defenses. The Regional Direc- tor denied the subpoena application and the Applicant sued the Regional Director in United States District Court for the Central District of California (Case 83- 6481 (EMT) PX) seeking an order compelling discovery or an order restraining the Board from proceeding with the backpay hearing until discovery could be accom- plished. This suit was not successful and, after a post- ponement, the Board's backpay specification hearing opened on 13 December 1983 without the Applicant having obtained pretrial discovery. On the opening day of trial on 13 December 1983 tes- timony was heard from the General Counsel's compli- ance officer concerning how the backpay specification was prepared. The Applicant moved for and was granted a postponement of the hearing until 31 January 1984 to obtain subpoenaed evidence and prepare its defenses On the second day of trial, 31 January 1984, the Applicant sought an additional postponement in order to obtain documents relevant to the Womack matter. This post- ponement was rendered unnecessary when the General Counsel withdrew the Womack allegations in midtrial that day. Evaluating the substantive merits on the basis of the record before me, I make the following conclusions. The General Counsel's evidence concerning the gross back- pay formula regarding Womack and the calculation of his gross backpay was never under substantial attack i i 8 Big Three Industrial Gas, 263 NLRB 1189 (1982) 10 The Womack allegations were withdrawn without an evidentiary record on the merits or a statement by the parties of the reasons for the withdrawal of the allegations from the backpay litigation The following recital of the motivations and actions taken in the backpay litigation are based on the statements of the parties contained in the filings in the EAJA portion of the case 11 The Applicant in its various statements of position never challenged the gross backpay allegations Indeed, its general denials in its answer may have been inadequate as a matter of law to put the allegations into contest 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and was sufficient to carry the General Counsel's burden of proof. With respect to the Applicant's affirmative de- fense of Womack's disability, I find there was never a difference of legal interpretation rather there was one solely of fact If Womack had been disabled and unable to work, all parties agreed he would take nothing under the specification The Applicant's position at all relevant times was that Womack was disabled during the entire backpay period. The General Counsel apparently be- lieved until the specification was withdrawn that there was insufficient evidence to accept the Applicant's argu- ments until the matter had been fully litigated On 31 January 1984 the General Counsel determined it was ap- propriate to withdraw the Womack allegations in the face of this defense. 3. The General Counsel's knowledge of the Applicant's disability defense The substantial justification, if any, of the General Counsel's proceeding in the face of the Applicant's dis- ability defense is the heart of the instant case. It is appro- priate to consider what the Government knew and when it knew it 12 a. Womack's report to the General Counsel Initially the General Counsel obtained backpay infor- mation from the discriminatees including Womack. This information was obtained on an ongoing basis through- out the unfair labor practice litigation . Womack told the General Counsel he had been employed as a truckdnver by the Applicant until March 1979 when he was injured on the job. Womack reported that his doctor, Dr Free- dle, told him he could not go "back to driving a truck at this time." Womack drew workman's compensation for a year, after that he received a payment from the Appli- cant's insurance carrier. Womack reported that some 18 months after his injury he began receiving temporary social security payments. Womack recalled being told the payments were temporary and recalled applying for temporary disability. His papers however had been de- stroyed in a February 1981 garage fire. Womack told the General Counsel's agents that in Jan- uary 1981, Dr. Freedle told him to "look for something to do" and that the doctor was considering releasing him. Dr. Freedle did not tell Womack what work to seek and did not tell him he could not return to truck- driving work. Dr. Freedle released Womack to work a week later, signing a slip so indicating. Womack claimed this release was later destroyed in the fire in his garage. He immediately began looking for truckdriving employ- ment and continued his search through 1981 continuing in 1982 with two interruptions of a "couple of months" each. Womack did not find employment. Womack reported that in June 1983 the Applicant of- fered him reinstatement and also sought health informa- tion. Womack called Dr. Freedle's office and asked for a copy of his 1981 release. He was told it would take a few days. A few days later Womack went to the doc- tor's office and was given a release dated 28 June 1983 signed by Dr. Freedle that declared Womack able to return to work as of 28 January 1981.13 This release was given to the General Counsel. Womack further told the General Counsel's agents that after his 1981 release he believed he could return to driving and that Dr Freedle told him nothing to the contrary b. The General Counsel's prebackpay specification exchange of information with the Applicant It is clear that by 2 September 1983, Counsel for the Applicant Carlos Bea, had informed the Board's Region- al compliance agent , James Middleton, of the Applicant's disability defense concerning Womack. Middleton by letter dated that day informed Bea that, if the Applicant supplied "conclusive evidence" that Womack or others were ineligible for backpay, the backpay specification concerning them would be amended On 15 September 1983 Bea wrote Middleton arguing that Womack had been unemployable throughout the backpay period and attaching as evidence a report by Dr. Freedle dated 25 February 1982 to the Applicant's insurance carrier. 14 This report indicates Dr. Freedle ex- amined Womack both before and on 28 January and that at all times since his accident Womack had not been physically able to work. c. Postbackpay specification developments The Regional Director issued the backpay specifica- tion on 23 September 1983 including the Womack allega- tions. There is no evidence that the General Counsel's agents received additional information on the Womack claim until the opening day of trial on 13 December 1983 On that date, in support of the Applicant's motion for a postponement of the trial of Womack's claims, counsel for the Applicant asserted that, pursuant to sub- poena, the Applicant had received records that indicated that Womack, in addition to receiving disability pay- ments from the Applicant's insurance carrier, had filed disability claims with four other insurance carriers. Fur- ther counsel for the Applicant represented that the records indicated that Womack had applied to social se- curity for some type of disability and had obtained a doctor's certificate in support thereof. No evidence was taken on the Womack disability de- fense that day and the trial was adjourned until 31 Janu- ary 1984. There is no evidence that the General Counsel sought or obtained additional information on the issue or changed its position until the second day of trial. On 31 January 1984 at the opening of the hearing the Applicant sought a further postponement in order to obtain Womack's social security file, which counsel for 12 While there was initial dispute regarding certain facts, the General Counsel's answer and the Applicant's response are not at essential differ- ence concerning the relevant facts While the Applicant points out the General Counsel did not obtain Wornacks' affidavit which it submitted with its answer until the instant Application had been filed, the Applicant did not otherwise contest the factual assertions contained therein l a The release was on a medical office letterhead and was apparently signed by another on behalf of Dr Freedle as the parenthetical initials "(ss)" appeared under the signature " This report, like the release described supra , was on medical letter- head and bore the same handwritten signature followed by the same par- enthetical "(ss) " AMERICAN PACIFIC CONCRETE PIPE CO the Applicant indicated he believed would show that Womack had sought and obtained social security disabil- ity benefits whose benefits would have been predicated on a finding that , Womack was unable to work at any gainful employment . Evidence was taken only on por- tions of the backpay specification independent of Womack and, following an afternoon recess , the General Counsel withdrew all claims regarding to Womack. 4. The contention of the parties The General Counsel's position on its substantial justi- fication for including Womack in the backpay specifica- tion is stated in its memorandum in support of answer to application for award of attorneys' fees and expenses. The General Counsel initially asserts: In backpay proceedings it is well settled that the General Counsel has the burden of proving gross backpay and that the Respondent has the burden of establishing facts which would negate the existence of backpay liability or which would mitigate that li- ability. M Restaurants, Inc. d/b/a The Mandarin, 238 NLRB 1575 (1978); Big 3 Industrial Gas & Equipment Co., 263 NLRB 1189 (1982). In the instant matter Mr. Womack's eligibility to receive backpay, based upon his fitness to function as a truckdriver, was at issue . Respondent contend- ed that Mr Womack was totally disabled and there- fore ineligible for backpay. Respondent, through Counsel, submitted a medical report from a Dr. Ernest M. Freedle which proported to establish Mr. Womack's total disability [footnote omitted]. However, conflicting evidence was submitted that Mr. Womack had been released by his physican to work, and that Mr. Womack had looked for in- terim employment [citations to evidence omitted]. Where, as here, there is a genuine issue as to which evidence should be credited , the matter is customarily placed, and herein the General Counsel was substantially justified in initially placing, that issue before the Administrative Law Judge , rather than resolving that issue administratively . For the General Counsel to have done otherwise would have undercut the division of functions between the General Counsel and the Board and would be in- consistent with the fair and just administration of the National Labor Relations Act. While Respondent may contend that the evidence submitted in regard to Mr . Womack was conclu- sive, it was in fact one doctor 's opinion as to Wo- mack's condition. Therefore, it was not unreason- able for General Counsel to name Womack in the Backpay Specification even considering Respond- ent's submission and particularly as General Counsel had contrary evidence . While there can be disagree- ment as weight given the respective submissions, it is just such disagreement which makes appropriate consideration of the evidence by a trier of fact in this case the administrative law judge. An evaluation of evidence submitted, in this cir- cumstance, is an ongoing process. The fact that at some point, based on such a reevaluation, the Gen- 14.3 eral Counsel may alter positions previous taken, does not mean that the position taken was unreason- able. Herein, as there was conflicting evidence, it was not unreasonable for the General Counsel to proceed cautiously as there was a good deal at stake, i.e., the Agency's statutory responsibility to the public in remedying the judged unfair labor practices in Mr. Womack's entitlement to backpay. Further, as the burden of proof regarding litigation of backpay liability is upon Respondent , it was not unreasonable for General Counsel to evaluate its position based upon that premise and to make the initial decision to include Mr. Womack in the back- pay proceedings. While General Counsel did move on January 31, 1984 to withdraw Mr. Womack from the backpay proceedings, underlying this application , General Counsel was substantially justified in naming Mr. Womack and proceeding on that aspect of the case until that time. The Applicant's reply to the General Counsel 's answer contains the Applicant's most refined position regarding the substantial justification issue. Relying on the factual background described, supra, the Applicant asserts that it early provided evidence of Womack's disability in the form of Dr. Freedle's report but that the General Coun- sel took several unjustifiable positions respecting the evi- dence. First, the General Counsel refused to make any investigation to determine which of Dr. Freedle 's seem- ingly contradictory documents was correct . Second, the General Counsel declined to allow prehearing deposi- tions by the Applicant that would have allowed the Ap- plicant to depose Dr. Freedle Third, the General Coun- sel opposed the Applicant's action in U.S. district court that would have allowed pretrial depositions of Dr. Freedle and others relevant to the Womack claim. In summary, the Applicant asserts: This is not the case of a General Counsel "sur- prised" at the hearing with a report which shows physical disability by the alleged discriminatee in the period of the claimed backpay specification. This is a case of conscious, determined refusal to in- vestigate proffered evidence, resulting in a "we'll see you in court" attitude which the Courts have denounced as "bad faith." 5. Analysis and conclusions regarding substantial justification The Applicant's argument in the instant case is implic- itly twofold . First is the argument that the General Counsel, on the basis of the evidence before it, was not substantially justified in pursuing the Womack allega- tions. Second is the argument that , had the General Counsel only investigated the Applicant's defense or ac- quiesced in the Applicant's attempts to investigate through prehearing depositions , the necessary evidence would have been uncovered , which would have conclu- sively demonstrated that the Womack claim was without merit. Because the General Counsel wrongfully failed to do either, argues the Applicant, it must be held to have 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD known what would have been uncovered. Those facts fully support a finding that the General Counsel was not substantially justified in pursuing the Womack allega- tions. Finally, the Applicant argues that the General Counsel's hindrance of the Applicant's attempts to obtain pretrial discovery also justifies a finding of no substantial justification. Each argument raises separate issues that are best ad- dressed separately. a. Was the General Counsel substantially justified in issuing and maintaining the Womack allegations based on the information actually before it? (1) The decisional law with respect to substantial justification in disputed fact situations The Board had recently reiterated its view of the Gen- eral Counsel's substantial justification for maintaining ac- tions based on conflicting evidence, which is ultimately resolved against the General Counsel In National Fire Protection, 281 NLRB 624 (1986), the Board found it proper for the General Counsel to maintain an action where credibility conflicts could not be resolved admin- istratively through documentary evidence because Board practice requires that such credibility issues be resolved at a hearing before an administrative law judge. (2) Findings regarding the General Counsel's substantial justification given the evidence before it Because the evidence known to the General Counsel varied over time, three separate dates must be considered in evaluating the General Counsel's substantial justifica- tion. (a) The General Counsel's substantialjustification for issuing the backpay specification on 23 September 1983 On 23 September 1983 the General Counsel had re- ceived Dr. Freedle's report" s which, if credited, clearly indicated Womack was totally disabled at least through the date of the report, 25 February 1982. It also had Wo- mack's assertions that Dr. Freedle had certified his abili- ty to return to work in January 1981 and Womack's statements that he had in fact sought such employment. Womack's assertions were importantly corroborated by Dr. Freedle's signed certification dated 23 June 1983 which asserted on its face that Womack had been eligible to return to work as of 28 January 1981. Faced with this conflicting documentary evidence the General Counsel issued a backpay specification asserting Womack was eligible for backpay as of 28 January 1981. Given the Board's holding in National Fire Protection, supra, it cannot be found that the General Counsel was not substantially justified in placing the disputed evi- dence, i.e, the conflicting documents attributed to Dr. Freedle and Womack's assertions, before an administra- tive law judge for resolution Accordingly, I find that as of 23 September 1983 the General Counsel was substan- tially justified in issuing the backpay specification with the Womack allegations. (b) The General Counsel's substantial justification on and after 13 December 1983 On 13 December 1983, in open court, counsel for the Applicant asserted it had obtained documentary evidence showing that Womack had made multiple claims for dis- ability. Does this additional information make the Gener- al Counsel's continuing prosecution of the Womack claim no longer substantially justified? Considering the evidence Womack had supplied earlier to the General Counsel, see discussion, supra, that his disability claims were temporary, I do not believe the 13 December assertions of counsel for Applicant rendered the General Counsel's claim unjustifiable given the con- tinuing factual conflicts. Nor do I believe counsel for Applicant considered this evidence conclusive . Immedi- ately after making these assertions at the opening of the trial, Counsel for Applicant pressed his motion for a postponement to allow additional time to subpoena addi- tional evidence. Counsel Bea stated I want to go get the records of those insurance companies to show-to see what declarations [Womack] made to them regarding his physical condition and whether he was able to work as a truckdriver or not . I'm not in a position to do that here at the present time without applying for depo- sitions . . But, that is, on Womack's case, I simply am not ready to proceed with him and I need a continuance to take some depositions of those custodians to find out what he said to them about his physical condition. [Tr. 15] For the same reason that counsel for the Applicant felt he needed time to obtain more evidence, i.e, that the matter was not conclusively resolved by the evidence on hand,16 I find the General Counsel, too, was entitled to maintain its position unless and until documentary evi- dence could be obtained that would show that Womack's representations and Dr. Freedle's release were incor- rect 17 Accordingly, I find that the General Counsel was sub- stantially justified in maintaining the Womack allegations through the conclusion of the day's hearing on 13 De- cember 1983. 15 This report would have been mailed on Thursday, 15 September 1983 and received on or about Monday, 19 September 1983 Before its receipt the General Counsel had no documentary evidence tending to support the Applicant's defense Thus, the General Counsel was clearly justified in maintaining its position regarding Womack at least until re- ceipt of the report However, because I find elsewhere in this decision that prebackpay specification fees and expenses are not recoverable, it is not necessary to consider the General Counsel's justification or lack thereof at any time prior to the issuance of the backpay specification on 23 September 1983 ie Mr Middleton's testimony on 13 December 1983 makes it clear the Applicant had by that time been provided a copy of the Dr Freedle's 28 June 1983 release " The apparent belief of counsel for the Applicant that his evidence was not conclusive on the issue is not independently relevant to the issue of the General Counsel's substantial justification The statements of coun- sel for the Applicant regarding the inconclusiveness of the evidence on hand made in the presence of counsel for the General Counsel is a factor to be considered in deciding the issue AMERICAN PACIFIC CONCRETE PIPE CO. (c) The General Counsel 's substantial justification from 13 December 1983 through withdrawal of the allegation on 31 January 1984 The only new information obtained by the General Counsel after the close of the hearing on 13 December, at least as is evident on this record , was the assertion by counsel for the Applicant on the opening of the second day of hearings on 31 January 1986 that additional time was necessary to obtain Womack 's social security file, which counsel for the Applicant hoped would contain claims of permanent disability by Womack. i 8 Given Womack's assertion to the General Counsel that his only claims with social security were for temporary disability, I do not find this information modifies my ear- lier analysis, nor do I find the General Counsel's change of position on the afternoon of 31 January 1984 when she withdrew the Womack claims undermines these find- ings. As the General Counsel argues on brief, subsequent reevaluation of an earlier position does not render the earlier position unjustified . Accordingly, I find the Gen- eral Counsel's maintenance of the Womack assertion sub- stantially justified until its withdrawal. (b) Was the General Counsel substantially justified in proceeding to trial without further investigation of the Applicant's defense? I have found that the conflicting reports of Dr. Free- die-each apparently in the same handwritingjustified the General Counsel taking the Womack allegation to a hearing. I also accept the Applicant's assertion that, if the General Counsel had contacted Dr. Freedle , the con- flict could have been resolved So, too, I find that if the General Counsel had obtained Womack's complete social security file, the evidentiary conflict would have been re- solved. May the General Counsel rely with impunity on con- flicting evidence as justification for maintaining an adver- sary action when a simple investigation would have re- solved the conflicting evidence in favor of the Appli- cant? Without asserting the proposition more broadly, I believe that where the disputed evidence concerns an af- firmative defense in a backpay proceeding in which the burden of proof is on the Applicant, the General Counsel is under no obligation to investigate further I also be- lieve there is clear Board precedent for such a finding. A backpay proceeding does not involve findings of wrongdoing. Rather, it liquidates or renders specific an order previously issued and determines compliance with that order. Generally, respondents are obligated as part 18 The Applicant introduced into evidence on 31 January in support of its motion for further continuance an affidavit of Cocounsel Richardson which contained , inter aha, the following assertion Documents and record (above described ) which AMPAC has sub- poenaed but which will not be available at the hearing on January 31, 1984, are necessary for the proper presentation of AMPAC's case AMPAC cannot meet its burden concerning the ability of alleged dlscnmmatee Womack to work nor effectively cross-examine these alleged dlscriminatees concerning these matters in the absence of these records 145 of the original order to participate in the investigative portion of the compliance stage. i 9 As noted , supra, the burden of proof regarding mitiga- tion of backpay . including issues of disability , is explicitly on respondents. Paragraph 10737.2 of the National Labor Relations Board's Casehandling Manual , Part Three, Compliance Proceedings, makes it clear that with respect to these matters, while the General Counsel may make evidence available to Respondent and admit adverse facts, it is not the General Counsel's policy to assume re- spondent's burden of proof and attempt to establish that there are no facts in mitigation . . . . The Board has explicitly recognized and approved this practice in an EAJA case , Phil Smidt & Son, 276 NLRB 1157 (1985) In that case the Board found the General Counsel substantially justified in issuing and litigating a backpay specification in which the General Counsel did not prevail on the issue of interim earnings-which like disability is an area where respondent bears the burden of proof. The Board approved the following language of the administrative law judge, 276 NLRB at 1158: That does not mean that Applicant is entitled to some portion of his fees and expenses [under the Equal Access to Justice Act]. The finding of an unfair labor practice is "presumptive proof that some backpay is owed." Mastro Plastics Corp, 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 US 972 (1966). The General Counsel bears the burden of proving the applicable backpay period and an ap- propriate formula for computing backpay . It is the Respondent which bears the burden to prove inter- im earnings. NLRB v. Brown & Root, 311 F 2d 447, 454 (8th Cir. 1963); DeLorean Cadillac, 231 NLRB 329 (1977), enfd . in relevant part 614 F .2d 554 (6th Cir. 1980); NLRB v. Izzi, 395 F.2d 241, 244 (1st Cir. 1968); NLRB v. McCann Steel Co, 570 F.2d 652, 655 (6th Cir 1978); NLRB v. Mercy Peninsula Am- bulance Service, 589 F.2d 1014, 1017 (9th Cir. 1979). Thus, Applicant's principle contention that [the backpay claimant 's] interim earnings were not ana- lyzed with the care and scrutiny that the Applicant applied has no merit . It may have been incumbent upon the General Counsel in a backpay proceeding to go forward with testimony from [backpay claim- ant] as to her interim earnings, but the ultimate burden of proof on this subject must be on Appli- cant . NLRB v. Izzi, supra. Applicant was not taken advantage of by the institution of the compliance proceeding . Rather, it caused the proceeding to be instituted by its unlawful discharge of [the backpay claimant] . The General Counsel, having determined 19 The Board's original Order in the instant case, with court approval, directed the Applicant to Preserve and, on request , make available to the Board or its agent, for examining and copying, all payroll records, social security pay- ment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order [262 NLRB 1223, 1238 ( 1982)] 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that [backpay claimant] was not in Applicant's employ for five quarters, was justified in issuing the backpay specification. Given all the above, I am ratified that in the particular and quite narrow situation presented here, the General Counsel did not act improperly in considering both the evidence submitted by the backpay claimant and the Ap- plicant but not further investigating the disability issue. In these circumstances the General Counsel could prop- erly place the matter before an administrative law judge c. Are the refusal of the Regional Director to allow pretrial depositions and/or the General Counsel's opposition to the Applicant's U.S. district court action seeking to compel discovery relevant to the instant case? I agree with the Applicant's assertion that, had the Re- gional Director allowed preheanng discovery or had the General Counsel not opposed the Applicant's attempt to compel such discovery in U.S. district court, the Womack allegations would most probably have been re- solved in the Applicant's favor before the commence- ment of trial. I further find these facts irrelevant to the instant proceeding and find that they do not support the Applicant's claim that the General Counsel was not sub- stantially justified regarding the Womack allegations. I make this finding because no substantial contention is made, nor does the evidence show, any error by the Re- gional Director or the U.S. district court in refusing to allow pretrial depositions. The National Labor Relations Act and the Board's Rules and Regulations place the is- suance of orders requiring pretrial depositions within the discretion of the Regional Director. See, e.g., Board's Rules and Regulations, Section 102.30. Insofar as the record reflects, the sole basis offered by the Applicant for seeking pretrial rather than trial discovery was speed and asserted convenience. These are not grounds suffi- cient to require depositions as a matter of right.20 To penalize the General Counsel-even in an EAJA proceeding-for the failure to allow prehearing deposi- tions, would however indirectly, undermine the current policy of the Agency, buttressed by its Rules and Regu- lations and case law, of placing such orders entirely within the discretion of the Regional Director. Absent Board direction in such an important area-and the Ap- plicant cites no authority-I will not make such a hold- ing. If limiting such discretion is appropriate it should be done directly not indirectly after the fact in an EAJA action. Accordingly, I find the denial of pretrial depositions irrelevant to the issue of substantial justification. For the same reason, if the original action of the Regional Direc- tor was not inappropriate, it was not inappropriate for the General Counsel to oppose the Federal district court suit attacking the Regional director's exercise of discre- tion. 2 1 20 All requests for depositions and related postponements made to the trial judge by the Applicant were granted 21 The issue of the compensability of time spent in the U S district court proceeding is discussed, infra d. Summary and conclusions on substantial justification I have found that, at all relevant times, there was suffi- cient conflicting evidence on the issue of Womack's dis- ability to substantially justify the General Counsel's maintenance of its allegations regarding Womack. I have further found no obligation on the General Counsel to make further investigation to resolve the conflicting evi- dence before it regarding Womack's disability. Finally, I have found the Regional Director's denial of pretrial depositions and the General Counsel's opposition to the Applicant's U.S. Federal court lawsuit irrelevant to the issue of the General Counsel's substantial justification in maintaining the Womack action. C. Conditional Findings on Arguments Concerning the Amount of the Award Having determined the General Counsel was substan- tially justified in issuing and maintaining the backpay specification allegation regarding Womack at all relevant times, it is unnecessary to resolve further arguments with respect to the Applicant' s claim. Resolution of this matter, however, has been substantially delayed and, in my view, it is incumbent on me to avoid if at all possible a new remand with all the associated delays if reviewing authority should differ about my determination concern- ing the issue of substantial justification. Accordingly, in the unusual situation where this decision issues on a remand from the court of appeals, I believe it is appro- priate to deal with other arguments made by the parties, even if only in a conditional sense, in order to maximize the likelihood of resolving this case without a second remand should reviewing authority differ from my find- ings above. Accordingly, I make the following condi- tional findings on the assumption that reviewing author- ity has found that the General Counsel was not substan- tially justified in the Womack matter and that an award should issue. 1 The compensability of fees or expenses incurred before issuance of the backpay specification The backpay specification underlying the instant matter issued on 23 September 1983. I have found that the General Counsel did not have evidence, beyond the Applicant's bare assertion, that Womack had a disability sufficient to deny him all recovery during the backpay period until the receipt of the Applicant's 15 September 1983 letter and attached doctor's report. It may be fairly argued that even if that report was sufficient evidence to charge the General Counsel with the duty to omit Womack from the backpay specification, the General Counsel's duty to act would not have occurred instantly upon the receipt of the letter dated 15 September and that it would be reasonable to assume that the General Counsel, under any interpretation of the facts, would not be charged with having acted without justification until after 23 September 1983, a time sufficient to have re- ceived and considered the submitted evidence. Setting aside these questions of fact however and working on the assumption that reviewing authority may entirely AMERICAN PACIFIC CONCRETE PIPE CO reject this factual analysis, the General Counsel makes an independent argument that as a matter of law no appli- cant is entitled to fees and expenses incurred prior to the issuance of the formal documents initiating the adversary procedure, in this case the backpay specification. The Board's Rules and Regulations Section 102.144 states in part: An eligible applicant may receive an award for fees and expenses incurred in connection with an adver- sary adjudication .... The General Counsel argues that the cited "in connec- tion with" limitation is grounded in the principle that the EAJA is designed to recompense litigants for defending against discretionary actions by the Government which are not substantially justified. Since both the investiga- tion of an unfair labor practice charge and the compli- ance investigation following a Board order or Court decree are not discretionary actions by the Agency but are rather required under the Act, the General Counsel argues that the Equal Access to Justice Act does not apply to those nondiscretionary procedures. The General Counsel further notes that the Board's original Order, quoted supra, required Respondent, the Applicant here, to preserve records and cooperate in the compliance in- vestigation necessary to liquidate backpay. Therefore, argues the General Counsel, the Applicant should not be compensated for the investigative or prebackpay specifi- cation stage of the procedures under any circumstances The Applicant asserts that even before the issuance of the United States Court of Appeals order enforcing the Board's Order, it was clear to the Applicant that the Government was proceeding with the backpay specifica- tion and, as a consequence, the Applicant's efforts during the prebackpay specification period were part of its de- fense of the allegations and thus should be fully compen- sated. No party cited Board authority on the question. The Board in Phil Smidt & Son, 276 NLRB 1157 (1985), ap- proved the decision of an administrative law judge, in- cluding the following footnote (Id. fn. 4 at 1158): However, it appears firmly established that, until issuance of a complaint in an unfair labor practice proceeding, no previous incurred expenses may be awarded in the EAJA application. Carthage & Sheet Metal Heating Co, Similarly, until the issuance of a backpay specification, here May 11, 1984, no fees and expenses may be awarded. In Evergreen Lumber Co., 278 NLRB 656 (1986), the Board approved the decision of an administrative law judge who awarded an applicant only postcomplaint fees specifically denying the compensability of precomplaint fees. See also DeBolt Transfer, 271 NLRB 299 (1984). Based on these holdings I find the EAJA and the Board's Rules and Regulations do not allow recompense of fees and expenses incurred before the issuance of the backpay specification even were an award otherwise ap- propriate in the instant case. 147 2. The compensability of fees and expenses incurred during the litigation of a collateral action in a United States district court In October 1983, the Applicant filed suit in the United States District Court for the Central District of Califor- nia in Case 83-6481 (EMT PX) seeking, inter alia, a tem- porary restraining order postponing the hearing on the backpay specification until the Applicant could obtain in- formation and records from the backpay claimants and an order directing the Regional Director to order deposi- tions which the Applicant felt was necessary before it could defend itself in the backpay specification hear- ing.22 Although the record is not completely clear on the matter, it appears the Applicant's action in Federal district court was totally unsuccessful. The Applicant seeks fees and expenses in connection with the Federal district court action as part of its gener- al claim.23 The General Counsel opposes this claim under two theories First, the General Counsel argues that since the Federal district court action was a judicial proceeding, any application for fees and expenses arising out of that proceeding must be governed by section 504(a)(1) and 2412(b) and (d) of the EAJA and such ap- plication must be filed in the appropriate Federal court. The General Counsel cites the Board decision in Granite State Minerals, 261 NLRB 619 - (1982), in which the Board dismissed an EAJA application seeking fees and expenses incurred in an enforcement proceeding in the court of appeals. As the Applicant points out however that decision was based on the language of sections 504(c)(1) and 2312(d)(3) of the EAJA and dealt expressly with fees and expenses in an enforcement action. The Applicant argues that the Federal district court action was in response to the Regional Director's refusal to issue prehearing subpoenas in the backpay litigation and that, accordingly, the Federal court suit was in connec- tion with the Board's backpay specification. Second, the General Counsel asserts, correctly, that the Applicant did not prevail in the Federal district court action and, accordingly, even viewing that action as within the Board's jurisdiction under the EAJA, the Applicant did not prevail and therefore is not entitled to compensation. The Applicant did not explicitly address this argument These arguments may be separately addressed. a. The Board's EAJA jurisdiction over a U.S. district court action The Equal Access to Justice Act at section 504(c)(1) requires that awards for fees and expenses involved in court review of the underlying decision of an agency ad- versary adjudication be made pursuant to section 2412(d)(3) of the EAJA, which provides for court not 22 The Applicant had earlier filed with the Regional Director a request for issuance of subpoenas, but the Regional Director had denied this motion See discussion, supra 23 Because the Federal district court action also involved other back- pay claimants who are not part of the instant application, the Applicant determined a proportionate share of the fees and expenses in the Federal district court action and alloted them to the Womack claim in litigation herein 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agency jurisdiction. That situation and the Granite State Minerals circumstances, supra, which rely on this lan- guage, are not present here. Here the agency decision, which was challenged was an intermediate procedural action undertaken before the merits of the underlying ad- versary adjudication were addressed. Section 2412 of EAJA which covers judicial jurisdic- tion, clearly puts Federal court actions under Federal court jurisdiction unless otherwise specifically provided by statute. I find no suggestion that the language of the EAJA otherwise limits this judicial jurisdiction that I regard as exclusive unless clearly stated otherwise. I therefore conclude that agencies, the Board included, have no jurisdiction to consider applications or portions of applications under EAJA, which seek compensation for U.S. distnct court litigation. The General Counsel's cited Granite State Minerals case is distinguishable and no other case law or legisla- tive history on the issue was cited by the parties. The ad- vantages of one unified consideration of EAJA claims after a final decision has been reached in a complicated litigation is evident. It is also true that the case law does not tend to support the consideration of costs litigation based on rulings on evidentiary or procedural grounds or on the obtaining of preliminary injunctions where no de- termination has been made on the ultimate merits of the case See Hanrahn v. Hampton, 446 U S. 754 (1980); Smith v. University of North Carolina, 632 F 2d 316 (4th Cir. 1980); Grubbs v. Butz, 548 F.2d 973 (D.C. Cir 1976). Cases do exist however awarding interim attorney fees See Hanrahn v. Hampton, Ibid.; Bradley v. Richmond School Board, 416 U.S. 699 (1974), Grubbs v. Butz, Ibid. At bottom I am persuaded a Federal court action must be considered by the Federal court under the EAJA based on fundamental notions of the separation of powers and the limited expertise of administrative agen- cies. Where the statute is not crystal clear on the ques- tion, I am very reluctant to find agency EAJA jurisdic- tion over Federal court proceedings. Such a finding would seem to turn the question of expertise on its head I simply do not think any administrative agency has the skills to evaluate an action in the Federal courts Fur- ther, I do not believe Congress intended to create such a right in administrative agencies under the EAJA. Accordingly, I find the U.S. district court action in- volved here outside the jurisdiction of the Board under the EAJA Therefore, I would exclude all claims for rec- ompense for fees and costs incurred in that litigation. b. Assuming the Board has EAJA jurisdiction over the U.S. district court action herein, should fees and costs for that litigation be awarded24 The General Counsel, arguing in the alternative, as- serts, if the Board has EAJA jurisdiction over the U.S district court action, no award should issue because the Applicant did not prevail in that litigation. The Appli- cant asserts: "[T]he time and effort expended [to] try to show the General Counsel the error of her ways was 24 1 am here again attempting to avoid a remand should reviewing au- thority differ with my previous findings regarding agency EAJA jurisdic- tion over actions in the U S district court necessarily incurred as the subsequent development of events has proved." Viewing the district court litigation as part and parcel of the entire Womack litigation, all of which, under this alternative view, is before the Board in an EAJA action, the fact that the Applicant did not prevail in this prelimi- nary portion of the entire Womack litigation does not in and of itself defeat the Applicant's claim. Litigation in this sense is viewed as a unity If the Applicant has pre- vailed in the final result, as here, it is not compensated only for the intermediate rulings favorable to it. Rather, with a single exception, the entire litigation is considered in determining an award. The single exception is set forth in the first sentence of EAJA Section 504(3): The adjudicative officer of the agency may reduce the amount to be awarded or deny an award to the extent that the party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy This language is carried forward essentially unchanged in Section 102.144(b) of the Board's Rules and Regula- tions. As noted, supra, I have found the Applicant's U.S dis- tnct court action unreasonable. It is clear that it protract- ed the final resolution of the matter in controversy.25 This being the case, pursuant to Section 504(3) of the EAJA and Board's Rules and Regulations Section 102 144(b), I would deny the Applicant any recompense for the U.S district court litigation even were it found such litigation were within the jurisdiction of the Board to evaluate under the EAJA. 3. The $75-per-hour fee limit As part of the Applicant's application, the Applicant asserted the regular billing rate for counsel to the Appli- cant exceeded $75 per hour and further asserted "a Peti- tion is made under Section 102 146, 29 C.F.R. Part 102 for adjustment of the $75 limitation to reflect these fees." The General Counsel opposes this request citing several cases by the Board denying such petitions. The General Counsel further notes that Section 102.146 of the Board's Rules and Regulations as well as the EAJA "both con- template the separate petition to be made to the Board for rule making." My research having uncovered no case in which the Board has modified the $75-per-hour limitation and, fur- ther, not finding it appropriate for an administrative law .judge to initially grant such a petition, I find the petition is appropriately placed before the Board. I would, there- fore, decline to grant any exception to the $75-per-hour rule. 25 The Applicant argues that, had it prevailed, the suit would have speeded final resolution of the case That statement is irrelevant because as a matter of current law the action was without merit and was simply not reasonably likely to succeed as the final result in U S district court confirmed in the event, the backpay specification hearing was postponed due to the Federal court action AMERICAN PACIFIC CONCRETE PIPE CO 149 III. SUMMARY AND CONCLUSIONS I have found the General Counsel's inclusion of the Womack allegations in the backpay specification to have been substantially justified within the meaning of the EAJA and the Board's Rules and Regulations and deci- sional law. Accordingly, I have denied the Applicant's application in its entirety. In order to avoid a second remand with its attendant delays in the event reviewing authority should differ from my findings concerning substantial justification, I have taken the admittedly unusual step of making further alternative findings that are designed to obviate a second remand if at all possible . Accordingly, I found that, were the conduct of the General Counsel in including the Womack allegation in the backpay specification without substantial justification , the Applicant's claims would be further limited as follows. First, all claims for time and expenses occurring before the issuance of the backpay specification would be denied Second , all claims and ex- penses for the preparation and litigation of the matter in district court, as described more completely supra, would be denied . Third, the $75 per hour limitation would remain in effect and claims for higher hourly rates would be denied . Given those exclusions, assuming again that the General Counsel's inclusion of the Womack alle- gation in the backpay specification were to be found not substantially justified, I would award fees and expenses with the limitations described above, commencing at the time the General Counsel was found to no longer be sub- stantially justified in maintaining the Womack action.26 Recommendation Having concluded that the Applicant 's application is without merit because the General Counsel was substan- tially justified in including the Womack allegation in its backpay specification and in maintaining that allegation until its withdrawal , I find the Applicant's application for fees should be denied. Accordingly, based on the above , I issue the following recommended 2 7 ORDER The application of American Pacific Concrete Pipe Company, Inc. for attorneys' fees and expenses under the EAJA is denied. 261 make no arithmetic calculations here for two reasons First, the amount conditionally awarded depends on the further specification of the date the General Counsel was first without substantial jurisdiction to con- tinue the Womack action Second, the General Counsel did not challenge the Applicant's assertions of hours worked nor the expenses incurred save as previously discussed, thus liquidation of the award would be es- sentially automatic given the determination of the dates of the com- mencement of the General Counsel's insufficient justification and no remand would be necessary to produce a fixed dollar award 27 If no exceptions are filed as provided by Sec 102 154 of the Board's Rules and Regulations, the findings, conclusions and recommended order shall as provided in the Board 's Rules and Regulations , be adopted by the Board and all objections to them shall be waived for all purposes