Dame & Sons Construction Co.

1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dame & Sons Construction Co. and Local 978, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 17-CA-13613(E) and 17-CA-13678(E) February 13, 1989 SUPPLEMENTAL DECISION AND ORDER. BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 20, 1987, Local 978, United Brotherhood of Carpenters and Joiners of America, AFL-CIO filed an unfair labor practice charge as well as a representation petition . On December 30, 1987, the Regional Director issued a complaint and notice of hearing . Pursuant to a request to proceed and a Stipulated Election Agreement, an election was scheduled for and held January 4, 1988. There- after, the Union filed timely objections to the elec- tion, and on January 13, 1988, the Union filed an additional unfair labor practice charge . On Febru- ary 4, 1988, the Regional Director issued an order consolidating cases, consolidated complaint and notice of hearing . On February 12, 1988, the Re- gional Director issued an order consolidating the C case with the R case . The consolidated complaint alleged that the Applicant had unlawfully interro- gated an employee concerning his union member- ship, promised an employee benefits, including per- manent employment, if the employee refrained from engaging in activity in support of the Union, threatened an employee with layoff or discharge if the employee continued activities in support of the Union, and laid off Mike Andrews because he had joined the Union. On March 18, 1988, the parties entered into an agreement approved by the .Acting Regional Direc- tor whereby the January 1988 representation elec- tion was set aside in favor of a rerun election and the remaining disputes were submitted to the griev- ance-arbitration procedure of the applicable con- tract. On March 21 the Acting Regional Director issued an order withdrawing the complaint and notice of hearing on the grounds that the matters in dispute might be resolved through the grievance- arbitration procedure of the collective-bargaining agreement. On March 24 the Acting Regional Di- rector notified the parties that the withdrawal of complaint was based on the determination that fur- ther proceedings on the charges should be adminis- tratively deferred for arbitration . However, this did not preclude subsequent reissuance of the com- plaint should circumstances so warrant. On May 24, 1988, the Applicant and the Union entered into a non-Board agreement . Pursuant to this agreement the Applicant paid Andrews $800 and the Union withdrew the representation petition and the unfair labor practice charges, and abrogat- ed reinstatement claims as well as claims to a col- lective-bargaining relationship with the Applicant and any claims concerning the preceding events. On May 25 the Regional Director notified the parties that the charges had been withdrawn with approval. On June 23, 1988, the Applicant filed an application for award of fees under the Equal Access to Justice Act, Pub. L. 96-481, 94 Stat. 2325 (the EAJA), and Section 102.143 of the Board's Rules and Regulations. On July 11, 1988, the Board issued a Notice to Show Cause why the EAJA application was not untimely and the Applicant is not eligible to apply for an award of fees and expenses because the case was settled. On July 14 the General Counsel moved to dis- miss the application on the following grounds: (1) it was untimely pursuant to Sections 102.48(a) and (d) of the Board's Rules and Regulations;' (2) the Applicant's entry into the non-Board settlement agreement precluded its being a prevailing party in the dispute concerning which the General Counsel had been substantially justified in issuing com- plaint;2 and (3) the application failed to substantiate adequately eligibility requirements and legal fees and expenses. The Applicant responded that the application was timely filed within 30 days of the Regional Di- rector's notification of withdrawal of the charges and that there was no substantial justification for is- suing complaint. Furthermore, the Applicant argued that it prevailed in the non-Board settle- ment because the payment was merely the quid pro quo for the withdrawal of the charges. The General Counsel responded reiterating her earlier position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. ' Sec. 102.148(a) of the Board's Rules and Regulations states: An [EAJA] application may be filed after entry of the final order establishing that the applicant has prevailed in an adversary adjudi- cation proceeding or in a significant and discreet substantive portion of that proceeding, but in no case later than 30 days after the entry of the Board's final order in that proceeding. Sec. 102 . 148(d) further specifies as follows: For purposes of this section the withdrawal of a complaint by a Re- gional Director . . . shall be treated as a final order ... . 2 See 5 U.S.C. § 504(a)(1) of the EAJA , which provides: An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other ex- penses incurred by that party in connection with that proceeding, unless the adjudicative . . . position of the agency as party to the proceeding was substantially justified or that special circumstances make an award unjust. 292 NLRB No. 118 DAME & SONS CONSTRUCTION The Board has considered the General Counsel's and the Applicant's responses to the Notice to Show Cause and has decided to grant the General Counsel's motion to dismiss the Applicant's EAJA application 3 We cannot find that the May 24 non-Board set- tlement agreement was favorable to the Applicant We cannot know what the parties sought and their relative strengths and weaknesses when they finally sat down to negotiate and resolve this dispute The agreement represents a compromise in which there is something for everyone The charges were with drawn as an element of a compromise, not as a uni- lateral release of the Applicant from all obligations s In the circumstances of this case we find that the withdrawal of complaint was not a final order terminating the proceeding We note that the withdrawal and the related explication letter notified the parties that the charges were merely in abeyance pending grievance arbitration pro cedures that the matters in dispute were yet to be resolved and that the complaint might subsequently reissue Rather the Regional Directors May 25 letter notifying the parties of the approved withdrawal of the charges signified the resolution of the dispute and the termination of the proceeding Accordingly the application must be regarded as timely 1045 claimed in the complaint The Applicant incurred financial responsibilities that it would not have had if the complaint had been dismissed Furthermore, the settlement precludes finding that either the Government or the Applicant won or lost Rather, "neither won nor lost , but clearly a prime purpose of the Act, the promotion of collective bargaining, was well served "4 Accordingly, the Applicant is not a prevailing party within the meaning of the EAJA 5 ORDER It is ordered that the application of the Appli- cant Dame & Sons Construction Co, Phillipsburg, Missouri, for an award under the Equal Access to Justice Act is dismissed 4 Carthage Heating Co 273 NLRB 120 123 (1984) Compare Shrews bury Motors 281 NLRB 486 (1986) 6 Because we find the Applicant was not the prevailing party we need not reach the remaining grounds of the General Counsel s motion to dis miss