Hardwick Co., Inc.

HARDWICK CO. Hardwick Company, Inc. and International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO, Local Lodge No. 583. Cases 10-CA-16524(E) and 10-CA-16384(E) August 10, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On January 15, 1985, Administrative Law Judge Marvin Roth issued the attached supplemental de- cision. The General Counsel filed exceptions and a supporting brief, and the Applicant filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge 's rulings, findings,' and conclusions2 and to adopt the rec- ommended Order. S i In adopting the judge's findings, we find it unnecessary to rely on his characterization of Foreign Trade Export Packing Co., 221 NLRB 785, 789-790 ( 1975), as expressly holding that a change in layoff procedure based on seniority necessarily militates against a finding of discriminatory treatment as a matter of Board law Rather, for purposes of this EAJA proceeding, we view the Applicant's recourse to seniority as essentially a neutral factor that militates neither for nor against a finding of discrimi- nation in the decision to implement a layoff and , therefore, as a factor that did not materially advance the General Counsel's case. Further, in adopting the judge's findings, we find it unnecessary to rely on his characterization at fn 12 of his decision, of the General Counsel's filing of motions and filing of an appeal as unduly prolonging the EAJA proceding 2 In adopting the judge's conclusion that the General Counsel 's posi- tion in the underlying unfair labor practice cases was not substantially justified, we note the Supreme Court's recent decision in Pierce v Under- wood, 108 S.Ct 2541 (1988) In that case, the Court held that the phrase "substantially justified" means "justified to a degree that could satisfy a reasonable person," or having a "reasonable basis both in law and fact " The Court found that a sentence in the 1985 House Committee Report, H R. Conf. Rep. No 99- 120 (1985), which defined substantial justifica- tion as "more than mere reasonableness" was not an authoritative inter- pretation of what the 1980 statute meant or of what the 1985 Congress intended 2 We deny the Applicant's motion to dismiss exceptions, amended ap- plication , remand case to administrative law judge and direct payment of award insofar as the motion contends that the Board lacks jurisdiction to consider exceptions to the judge's decision . See Lion Uniform , 285 NLRB 249 (1987), and Lathers Local 46 (Building Construction), 289 NLRB 505 (1988). Insofar as the motion seeks additional fees and expenses incurred subsequent to the judge's decision, we note that the judge's award, which we adopt, preserves the Applicant's right to submit additional or amend- ed claims in the event of proceedings subsequent to that decision We also deny the General Counsel 's motion for leave to adduce addi- tional evidence and request for special leave to file a supplemental brief. The General Counsel contends that the Applicant asserted a false and misleading statement of this case in a petition for writ of mandamus/- prohibition filed with the Eleventh Circuit of the United States Court of Appeals Having considered the General Counsel's motion , we find that nothing raised therein provides a sufficient basis for finding that an award is unjust under Sec 102 144(b) of the Board's Rules and Regulations 75 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Applicant, Hardwick Company, Inc., Birmingham and Bessemer, Ala- bama, be awarded the sum of $23,731.82 pursuant to its application for an award under the Equal Access to Justice Act. Judith M. Anderson, Esq., for the General Counsel. Chris Mitchell, Esq., Richard Brown, Esq., and Carol Sue Nelson, Esq., of Birmingham, Alabama, for the Re- spondent. Hoover Wilson , of Birmingham, Alabama, for the Charg- ing Party. SUPPLEMENTAL DECISION Equal Access to Justice Act STATEMENT OF THE PROCEEDING MARVIN ROTH, Administrative Law Judge. This is a proceeding under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 et seq., Pub. L. 96-481 § 94 Stat. 2325, and the Board's procedural rules issued pursu- ant to EAJA, subpart T, Section 102.143 et seq. of the Board's Rules and Regulations, 29 CFR Chapter I, Part 102. On March 30, 1982, Administrative Law Judge Leon- ard N. Cohen issued his decision and recommended Order in the underlying unfair labor practice proceeding, finding and concluding that Respondent Hardwick Com- pany (the Company) violated Section 8(a)(1) of the Na- tional Labor Relations Act (NLRA) in certain respects, but recommending that other allegations of the consoli- dated complaint, including alleged violations of Section 8(a)(3), be dismissed . General Counsel filed exceptions. On August 11, 1982, the Board issued its Decision and Order (263 NLRB 302) affirming Judge Cohen's decision and adopting his recommended Order. On September 10, 1982, the Company filed its initial application for award of fees and expenses under EAJA. The Company subse- quently amended its application from time to time to cover its fees and expenses in the present proceeding. General Counsel filed an answer to the application, de- nying that the Company was entitled to any reimburse- ment under EAJA. General Counsel also filed a series of motions to dismiss the application and amendments thereto and for summary judgment. On December 29, 1982, Judge Cohen issued a Supplemental Decision and recommended Order that the application be dismissed as untimely filed. The Company filed exceptions, and on April 26, 1983, the Board issued a Supplemental Decision and Order (266 NLRB 633), finding that the application was timely filed and remanding the proceeding to Judge Cohen. On August 2, 1983, Judge Cohen directed a hear- ing in the proceeding . Thereafter the Board granted leave to General Counsel to appeal Judge Cohen's orders denying General Counsel's Motion for Summary Judg- ment, directing the hearing, and refusing to stay the 296 NLRB No. 12 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hearing. On February 14, 1984, the Board issued an Order denying General Counsel's Motion for Summary Judgment and remanding the proceeding to Judge Cohen for the purpose of conducting a hearing on all issues raised by the Company's application. The Board held "that there are unresolved material issues of fact which warrant a hearing," including but not limited to "such questions as whether there is sufficient evidence to estab- lish that the Applicant has a net worth of not more than $5 million; whether the Applicant employs not more than 500 employees; whether the Applicant cooperated in the investigation of the underlying proceeding and, if so, to what extent; and whether the Applicant was obli- gated to serve pleadings on the Charging Party." How- ever, the Board stated that "we are not passing on the merits of the parties' respective positions, nor do we inti- mate our resolution of the issues raised herein." Thereaf- ter Judge Cohen rescheduled the hearing, but took ill and died before the hearing could be held. By order of September 5, 1984, the chief administrative law judge transferred the proceeding to me for appropriate action, and on October 11, 1984, I conducted a hearing in the matter. All parties, including the charging party in the unfair labor practice proceeding, were afforded full op- portunity to participate , to present relevant evidence, to argue orally, and to file briefs. Posthearing briefs were submitted by General Counsel and the Company. I in- formed the parties that the hearing was supplemental in nature and that all affidavits, exhibits, statements of posi- tion, briefs and other documents previously submitted would be considered together with the evidence adduced at the hearing. Upon the entire record , including the record in the EAJA proceeding and the underlying unfair labor practice proceeding,' and from my observa- tion of the demeanor of the witnesses at the EAJA hear- ing, and having considered all briefs and memoranda of law submitted by the parties in the unfair labor practice and EAJA proceedings, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE ISSUES PRESENTED When the Board remanded this proceeding to Judge Cohen for a hearing, there appeared to be a wide range of unresolved issues . However, the hearing resulted in a considerable narrowing of those matters actually in dis- pute. At the outset of the hearing, counsel for General Counsel conceded that after reviewing documents which were submitted by the Company pursuant to subpoena, General Counsel was satisfied that the Company met the applicable jurisdictional standards ; specifically, that the Company was a corporation with a net worth of less than $5 million and fewer than 500 (in fact less than 100) employees. General Counsel also conceded that in light of the Board's recent decision in DeBolt Transfer, 271 NLRB 299 ( 1984), fees and expenses incurred in pursuing the EAJA award are also recoverable under EAJA. In light of DeBolt, I further find that fees and expenses in- curred prior to issuance of the complaint are not recov- erable but that litigation fees and expenses incurred prior I Errors in the transcript have been noted and corrected to the effective date of EAJA are recoverable . The re- maining unresolved issues fall into three areas: ( 1) wheth- er the application should be dismissed for failure of serv- ice on the charging party, (2) whether General Counsel's position in the litigation with respect to the dismissed al- legations of the complaint was substantially justified, or whether the circumstances of the litigation warrant re- duction or denial of the Company's claims, and (3), as- suming that the Company should prevail on the first two issues, the propriety of the Company's claims for fees and costs. II. FAILURE OF SERVICE ON THE CHARGING PARTY International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Lodge No. 583 (Union) was the charging party in the unfair labor practice proceeding . It is undisputed that the Company did not serve the Union with its initial ap- plication and subsequent papers filed in the EAJA pro- ceeding until after Judge Cohen issued his Supplemental Decision of December 29, 1982, in which he criticized, but did not rule on the legal significance of such failure of service. Thereafter the Company routinely served such papers on the Union . General Counsel has taken the position throughout this proceeding that the application must be dismissed by reason of such failure of service. The Company contends by way of defense that (1) it did not serve the Union because of the Union 's disclaimer of interest and withdrawal from representation of the unit employees and lack of participation in the unfair labor practice proceeding, (2) General Counsel is estopped from taking its present position by reason of its failure to object to the Company's failure to serve the Union with copies of posthearing papers in the unfair labor practice proceeding, after the Union's disclaimer of interest, (3) the Company complied with EAJA and the Board's Rules, and (4) failure of service was not prejudicial. EAJA does not provide for service on a charging party. Rather, Section 504(a)(2) simply provides that the applicant shall submit its application to the adjudicating agency within 30 days of the final disposition of the ad- versary adjudication . Therefore service upon a charging party, unlike timely submission to the agency, is not a ju- risdictional prerequisite. See Monark Boat Co., 262 NLRB 994 (1982), affd. 708 F.2d 1322 (8th Cir. 1983). However, Section 102.148 of the Board 's Rules provides that "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 proceeding," except for financial information alleged to be confiden- tial. In order to evaluate the Company 's position, it is nec- essary to consider the history of the Union 's involvement in the unfair labor practice and EAJA proceeding. The initial unfair labor practice charge alleged, in addition to 8(a)(1) and (3) violations, that the Union was entitled to a remedial bargaining order. The Regional Office did not proceed on this aspect of the charge . However, the Union petitioned for an election among the employees at the Company's Bessemer plant, and notwithstanding the pending charges, proceeded to an election on February HARDWICK CO. 6, 1981. The Union won and was certified by the Board as bargaining representative of the Bessemer employees. Thereafter the Company and Union met in contract ne- gotiations. The last session took place on April 28, 1981. Shortly before that session, Union International Repre- sentative Hoover Wilson met with the Bessemer employ- ees, who indicated to him that they no longer desired union representation. Wilson proceeded to the bargaining session and told the Company that they were at an im- passe and there was no purpose in further negotiations. Wilson indicated that the Union would retain its nominal status as bargaining representative through the certifica- tion year, but would no longer act as bargaining repre- sentative or deal with the Company unless the Company retaliated against union adherents. Thereafter the Union ceased to function as bargaining representative. In 1980 Wilson cooperated in the investigation of the unfair labor practice charges by assembling witnesses and obtaining information. After April 28, 1981, Wilson assisted coun- sel for General Counsel by making witnesses available for the unfair labor practice hearing on September 10 and 11, 1981. However, neither Wilson or any other union representative was present at the hearing. Wilson participated in settlement discussions only to extent of in- dicating that any settlement which was acceptable to the employees would also be acceptable to the Union. Other- wise the Union had no contact with the Company until September 14, 1984, when I conducted a telephone con- ference call preliminary to the EAJA hearing. After the unfair labor practice hearing the Company did not serve the Union with either its brief to the administrative law judge or its brief in opposition to General Counsel's ex- ceptions. Neither General Counsel nor the Union object- ed to this procedure. Company Attorney Chris Mitchell stated that he did not serve the Union because the Union had disclaimed interest in representation and did not par- ticipate in the unfair labor practice proceeding. After the Company filed its EAJA application, counsel for Gener- al Counsel kept Wilson informed of developments in the EAJA proceeding. However the Union did not file any objection to the failure of service or otherwise partici- pate in the EAJA proceeding until my conference call. At that time Wilson introduced himself but did not oth- erwise participate in the discussion. Wilson was present- ed as a company witness at the EAJA hearing. In re- sponse to my questions, Wilson expressed his opinion that the Company was not entitled to fees and costs. However he admitted that his knowledge of the unfair labor practice proceeding was based on hearsay, and that he could not think of any specific thing he would have done differently if he had been served with the Compa- ny's application at the time it was filed. General Counsel, in support of its position, relies upon a line of Board authority involving failure to serve copies of objections to an election, at a time when the Board's rules required the objecting party to make such service on other parties to a representation proceeding.2 The lead case in this area was Nickles Bakery, 209 NLRB 1058, 1059 (1974). In Nickles, the Board rejected "the proposition that the time requirements in our Rules and 2 The Board's Rules now provide for service by the Regional Director 77 Regulations will be ignored on the singular ground that a party has not produced any evidence that it was preju- diced by another party's failure to comply with those re- quirements." Rather the Board declared "that in order to support a variance or other deviation from the clear re- quirements of the Board's Rules, there must be some showing that there has been an honest attempt to sub- stantially comply with the requirements of the Rules, or alternatively, a valid and compelling reason why compli- ance was not possible within the time required by the Rules." The Company also contends that the Nickles line of cases supports its position. However the Company has also cited another line of authority involving the failure to serve a party with exceptions in an unfair labor prac- tice case. In Terpening Trucking Co., 271 NLRB 196 fn. 1 (1984), the Board denied a charging party's motion to reject exceptions for failure of service by a respondent. The Board held that its rules do "not require the Board to vitiate exceptions and adopt an administrative law judge's decision in the absence of properly served excep- tions particularly where, as here, the charging party has not shown it has been prejudiced, or requested an oppor- tunity to file cross-exceptions or a brief." The Board cited as authority Our Way, Inc., 244 NLRB 236 (1979), and Cameron Iron Works, 235 NLRB 287 (1978), revd. on other grounds 591 F.2d 1 (5th Cir. 1979). I find that Terpening, rather than the Nickles line of cases, governs the present situation. Nickles and its progeny involved representation proceedings in which, unlike unfair labor practice proceedings, the private parties bore much of the burden of conducting the investigation. The filing of objections to an election might well trigger an investiga- tion by the other parties, in which time would be of the essence from a practical as well as a legal standpoint. Therefore the failure to serve exceptions would have a potentially prejudicial effect in almost any such situation. However, Terpening, like the present case, involved an unfair labor practice proceeding in which a hearing had already been conducted and completed. Therefore, unless and until the matter at issue has been adjudicated, any potential prejudice may normally be remedied by af- fording the unserved party an opportunity to state its po- sition. See Our Way, Inc., supra, 244 NLRB at 236 fn. 1. Indeed Section 102.148 specifically provides for service in the same manner as in the underlying unfair labor practice proceeding. In the present proceeding, neither General Counsel nor the Union was prejudiced by the Company's failure to serve its application on the Union. Although General Counsel kept the Union informed of developments in the EAJA proceeding, and the Compa- ny served its pleadings and memoranda on the Union after December 29, 1982, the Union never indicated any desire to file a statement of position or otherwise partici- pate in the EAJA proceeding. Moreover, the Union was expressly invited to state its position at the EAJA hear- ing, although I had discretion to preclude such participa- tion.3 The Union also could have submitted posthearing Sec 102 150(e) of the Board's Rules provides that a party to the ad- versary adjudication other than the applicant and General Counsel may file comments on the application and the answer, but "may not partici- Continued 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD briefs, but did not. The Union was of course always free to cooperate with General Counsel in the proceeding. In sum, I find that neither General Counsel nor the Union was prejudiced by the Company's failure to serve its ap- plication on the Union . Moreover, in the circumstances of this case, I find that the Union, by its course of con- duct, led the Company to believe that it had waived its right to such service. The Union expressly disclaimed in- terest in representing the employees , was not present at the unfair labor practice hearing , and did not object to the Company's failure to serve the Union with its post- hearing briefs in that proceeding and the EAJA applica- tion. Therefore even under the Nickles standard, General Counsel's argument should be rejected because the Com- pany has shown "an honest attempt to substantially comply with the requirements of the Rules." General Counsel's motion to dismiss the application for failure of service on the Union is denied on its merits. III. THE SUBSTANTIAL JUSTIFICATION ISSUE Section 504(a)(1) of EAJA provides that the adjudicat- ing agency "shall award to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding , unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substan- tially justified or that special circumstances make an award unjust." Section 102. 144 of the Board's Rules pro- vides in full with respect to standards for awards that: (a) An eligible applicant may receive an award for fees and expenses incurred in connection with an adversary adjudication or in connection with a significant and discrete substantive portion of that proceeding, unless the position of the General Counsel over which the applicant has prevailed was substantially justified. The burden of proof that an award should not be made to an eligible applicant is on the General Counsel, who may avoid an award by showing that its position in the proceeding was reasonable in law and fact. (b) An award will be reduced or denied if the ap- plicant has unduly or unreasonably protracted the adversary adjudication or if special circumstances make the award sought unjust. The allegations of the consolidated unfair labor practice complaint fell into four categories . The complaint alleged in sum that the Company (1) violated Section 8(a)(1) by interrogation, threats of plant closure and loss of work, solicitation of withdrawal from union activity, and threat of more stringent enforcement of company rules; and further violated Section 8 (a)(1) and (3) by (2) reducing its employees' hours of work by transferring machinery from its Bessemer shop to its Birmingham shop, (3) laying off five employees on October 30, 1980, and two additional employees in early November 1980, and (4) failing to recall two of the employees until about Decem- pate further in the fee application proceeding unless the administrative law judge determines that such participation is required in order to permit full exploration of matters raised in the comments " The Union never filed such comments or requested leave to file such comments ber 1, 1980, and failing to recall the remaining employ- ees. Judge Cohen found merit in the 8(a)(1) allegations, except with respect to the alleged threat of more strin- gent enforcement of company rules . The remaining alle- gations were dismissed . No exceptions were filed with respect to Judge Cohen's findings and conclusions on the category 1 allegations . Judge Cohen's dismissal of one al- legation (threat of more stringent enforcement of attend- ance policy) was based on his resolution of a credibility question, and the Company does not rely on that dismis- sal as a basis for its claim.' However, the Company does base its claim on the dismissal of all allegations in catego- ries 2, 3, and 4. Evidence introduced in the EAJA proceeding indi- cates that the Company was willing (although not at all times), to settle the category 1 allegations on the Re- gion's terms, i.e., by informal Board settlement and post- ing of an appropriate notice. The initial unfair labor practice charge was filed on October 31, 1980. On De- cember 5, 1980, Board Field Examiner Curtis Wells met with the Company, including Attorney Mitchell, for the purpose of obtaining the Company's position. The Com- pany admitted that it had engaged in some interrogation and threats, and proposed to remedy the 8(a)(1) allega- tions by posting an appropriate notice . However, the Company denied that the layoffs were unlawful . In late December or early January Wells informed Mitchell that the Regional Office was prepared to issue an 8(a)(1) and (3) complaint. By this time the Union had filed a second election petition (an earlier petition having been with- drawn). Mitchell stated that he could not settle the case while an election was pending. As indicated the Union won the election on February 6, 1981 . However there was no further discussion of settlement until counsel for General Counsel Judith Anderson contacted Mitchell on August 18, 1981.$ Mitchell stated that the Company wanted to settle the case but did not want to post a notice. On August 27 Anderson informed Mitchell that she estimated total backpay of $35 ,800 for the seven al- leged discriminatees. By letter of the same date, Ander- son notified Mitchell of proposed amendments to the complaint, covering the alleged solicitation and threat of more stringent enforcement of attendance rules . Ander- son also submitted a form of proposed informal settle- ment agreement including a notice covering all alleged violations, waiver of reinstatement and backpay in un- specified amounts . On September 2, Mitchell proposed backpay of $100 for each employee, totaling $700. Some time between September 3 and 8, Mitchell proposed set- tlement which would provide for a notice covering all alleged violations, total backpay payment of $2900, and placement on a preferential hiring list of those employees interested in returning to work. By letter dated Septem- 4 Even if Judge Cohen had credited testimony that such a threat was made, it is unlikely that he would have found the threat to be violative of Sec 8(a)(1). The alleged threat was made in conjunction with announced layoffs on October 30. If the threat was discriminatorily motivated, then such determination would have to be made on the basis of the same evi- dence upon which General Counsel contended that the layoff itself was discriminatory However Judge Cohen determined that such evidence was inadequate to show a discriminatory motive 5 All dates herein are in 1981 unless otherwise indicated HARDWICK CO. ber 8, Mitchell confirmed the proposed settlement. Mitchell informed Anderson that he wanted to make a record of the proposed settlement because he anticipated that the Company would file a claim under EAJA if it prevailed on the 8(a)(3) allegations . Anderson received the letter shortly before commencement of the hearing on September 10. At no time did General Counsel pro- pose settlement in an amount less than $35,000.6 In light of the foregoing facts, I find that but for Gen- eral Counsel's action in proceeding on the 8(a)(3) allega- tions which were all subsequently dismissed , this case, i.e., the remaining 8(a)(1) allegations , could have and would have been settled on General Counsel 's terms without need of litigation . During the investigation the Company indicated that it was willing to settle the 8(a)(1) allegations. Although Attorney Mitchell subse- quently declined to discuss settlement when the Region informed him that it was prepared to issue a complaint, Mitchell made clear that he was refusing only because of the pending election petition . Although the Union won the election on February 6, General Counsel did not thereafter contact Mitchell until August . Mitchell initial- ly expressed unwillingness to post a notice which would cover the 8(a)(3) allegations, but subsequently proposed a settlement which would include such notice . The Com- pany's claim for fees and expenses for the period from early January (when it rejected settlement) until late August, when settlement discussion resumed , constitute a minute portion of its total claim (3.7 hours of legal serv- ices, all of which related to preparation of pleadings, and disbursements amounting to $8.80). In sum, I find that this case would have been settled without litigation, but for General Counsel's determination to proceed on the 8(a)(3) allegations and refusal to accept any settlement which failed to provide for substantial backpay . Indeed the Company devoted only a small portion of its defense to the 8(a)(1) allegations, and focused on those allega- tions only to the extent necessary to meet General Coun- sel's contention that the 8(a)(1) violations constituted evi- 6 The above findings with respect to the settlement discussions in August and September 1981 are based on my consideration and analysis of the testimony of Mitchell and all pertinent documents presented in this proceeding, including General Counsel 's memorandum in support of asnswer (pp. 5-6) setting forth Anderson's version of the settlement dis- cussions. Anderson informed me at the hearing that Board policy pre- cluded her from testifying because she was counsel for General Counsel in the proceeding . Therefore, I have accepted the memorandum in lieu of testimony, and I have given it the same weight as I would to sworn testi- mony The difficulty with Anderson 's version is that it raises more ques- tions than it answers. The memorandum asserts that Anderson never said that minimum acceptable backpay was in excess of $35 ,000, or that the employees had waived reinstatement. Rather, according to the memoran- dum, Anderson told Mitchell that waiver of reinstatement would require a "reasonable offer of backpay " Although the memorandum states that there were "numerous settlement discussions," the memorandum fails to indicate what if any backpay figure was ever proposed by General Coun- sel, other than total backpay The memorandum states that the Company made a "counter offer" of $700 backpay. Counter to what? The memo- randum does not say . The memorandum also asserts that General Coun- sel did not have time to make a written response to Mitchell's letter of September 8. However the memorandum disregards the fact that the letter simply confirmed a prior oral proposal , and also fails to explain what if any oral response was made by General Counsel to the proposal. I credit Mitchell's testimony to the extent indicated , and I specifically find that General Counsel never expressed an interest in accepting less than total backpay 79 dence that the layoffs were discriminatorily motivated. Therefore the Company's litigation fees and expenses are attributable in their entirety to this determination, and are recoverable by the Company as the "prevailing party" in the ligitation, unless it is determined that Gen- eral Counsel's position with respect to the 8(a)(3) allega- tions was substantially justified.' At this point I shall return to the 8(a)(3) allegations which were dismissed in their entirety, commencing with category 2 (transfer of machinery). That allegation is particularly significant because it is illustrative of the in- transigent attitude which characterized General Coun- sel's overall approach to this case. The complaint alleged that on or about October 28, 1980, the Company "re- duced its employees' hours of work by transferring ma- chinery from its Bessemer Shop to its Birmingham Shop," and thereby violated Section 8(a)(1) and (3) of the NLRA. In fact, General Counsel never had or pre- sented any evidence, credible or otherwise, that the transfer in question resulted in reduction of employees' hours of work. Judge Cohen found as follows: ... the facts regarding this issue are clear and are not in dispute. On either October 27 or 28 Respond- ent moved a large angle roller machine from its Bessemer plant to its Birmingham facility for the purpose of repairing it. Concurrent with this trans- fer, Respondent moved a drill press from the Bir- mingham plant to the Bessemer plant. The Bessemer plant employee who had been running the angle roller immediately commenced operating the drill press. This employee lost no work as a result of the transfer of this machinery. The facts as found by Judge Cohen were known to the Regional Office by the time it completed its investiga- tion. Company official Gene Wilson explained the cir- cumstances of the transfer to Field Examiner Wells. None of the Union's witnesses presented evidence which would contradict the Company's explanation or demon- strate that the transfer resulted in reduction of employ- ees' hours of work. For some unexplained reason, the Regional Office never bothered to obtain an affidavit from employee Phillip Shattuck, who ran the angle roller and subsequently operated the drill press , and therefore was the employee who was in the best position to know the circumstances and effect of the transfer. At the unfair labor practice hearing , alleged discriminatee Cecil James admitted that the Company moved the drill press to Bes- semer at about the same time it transferred the angle roller, and that Shattuck, who ran the angle roller, then began working on the drill press. General Counsel wit- nesses James Taylor and William Finerty also corrobo- rated the Company's position. Twice during the hearing Judge Cohen asked counsel for General Counsel to state her position regarding the apparent lack of evidence con- cerning the alleged loss of work. On each occasion she avoided responding to the Judge, and instead elected to continue questioning witnesses. In her posthearing brief, ' Therefore it is unnecessary to deal with the 8(a)(3) violations as a "significant and discrete portion" of the litigation. 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD counsel for General Counsel asserted that the transfer was an issue in the case, but did not otherwise present arguments on that issue . This led Judge Cohen to com- ment in his decision that "General Counsel's current po- sition on this allegation is not clear since, in her post- hearing brief, counsel only notes in passing this subject as an issue and at no subsequent time during her brief mentions it further." General Counsel did not file excep- tions to Judge Cohen's recommended dismissal of this al- legation. I agree with the Company's contention that this allegation probably derived from the Union's suggestion, made during the course of the investigation , that the Company created a need for a layoff by transferring the angle roller and another piece of equipment from Besse- mer to Birmingham . Although the Region's investigation totally failed to substantiate this suggestion , the Region nevertheless proceeded on the transfer, apparently in the hope that the transfer might somehow arouse a suspicion that the layoffs were discriminatorily motivated. I find that General Counsel's pursuit of the allegation was to- tally unjustified, and that there are no special circum- stances with regard to the matter which would make an award unjust. I shall next deal with category 3, the layoffs, which were the principal issue in this case . Judge Cohen's con- cluding analysis (263 NLRB at 306-307) is particularly significant. Judge Cohen initially summarized the Wright Linea test applicable to all alleged violations of Section 8(a)(3) and (1) which turn upon the employer 's motiva- tion. He then analyzed General Counsel's position as fol- lows: The General Counsel contends that the clearly demonstrated strong union animus , when coupled with the timing of the layoffs, some 6 days after Re- spondent was informed of the petition being filed, creates a strong suspicion of Respondent's unlawful motivation . This argument has appeal if one limits the inquiry to those factors alone . However, when the layoffs are viewed in the context of the entire record, any doubts with regard to Respondent's mo- tivation must be resolved against the General Coun- sel. Judge Cohen next summarized the other circumstances of the layoff, including the Company's declining sales and deteriorating financial condition , failure to grant semiannual raises in June 1980, layoffs in March, June, September, and early October 1980 (all prior to the union activity), and selection of employees for the Octo- ber 30 and November layoffs on the basis of seniority, as a result of which the Company retained the leading union adherents while laying off the son of one of the Company's owners, one of the few Bessemer employees who did not sign a union card . Judge Cohen then con- cluded as follows: Accordingly, for the reasons set forth above and notwithstanding the well-established union animus and the timing of Respondent's action, I am per- suaded that the General Counsel has not met its 8 Wright Lune, 251 NLRB 1083 (1980). burden of establishing that protected conduct was a "motivating fact" in Respondent 's decision to lay off employees on October 30 and November 6 and 13. Mini-Industries, Inc., 255 NLRB 995 (1981); Col- orado Forge Corporation, 260 NLRB 25 (1982). It is evident from Judge Cohen's concluding analysis, that he held that General Counsel failed to make out a prima facie case that the layoffs were discriminatorily motivated. As Judge Cohen recognized, under Wright Line "the General Counsel is required to make out a prima facie showing sufficient to support the inference that the protected conduct was a 'motivating factor' in the employer's decision. Once that is established, the burden then shifts to the employer to demonstrate that the same actions would have taken place in the absence of protected conduct." Judge Cohen did not say that the Company carried its burden under Wright Line. Rather he held, as indicated, that General Counsel failed to meet its burden under Wright Line, i.e., failed to make out a prima facie case that union activity was a "motivating fact" in the layoffs. In so holding, Judge Cohen adhered to the well-established principle, applied in numerous Board decisions over the years, that animus and timing, standing alone, do not establish even a prima facie case of discriminatory motivation , where the other circum- stances militate against such a finding .9 The plain import of Judge Cohen's analysis is confirmed by the Board's own language. In affirming Judge Cohen's decision, the Board noted as follows (fn. 1): The General Counsel excepts to the failure of the Administrative Law Judge to find, as alleged in the complaint, that Respondent's failure to recall certain laid-off employees constituted a violation of Sec. 8(a)(3) and (1) of the Act. On the basis of the entire record, we find that the General Counsel failed to produce sufficient evidence to establish a prima facie case that the laid-off employees' protected conduct was a motivating factor in Respondent's decision not to recall the employees. Accordingly, we dismiss the complaint insofar as it alleges that Respondent violated the Act by failing to recall the laid-off employees. General Counsel's contention that the failure to recall employees was unlawful (category 4 violations herein) was based on the same evidence upon which General Counsel contended that the layoffs themselves were un- lawful, coupled with additional arguments concerning the Company's asserted reasons for failing to recall par- ticular employees (Brief in Support of Exceptions, p. 4). 9 General Counsel argued in its briefs to Judge Cohen and to the Board that it made out a prima facie case, citing Honda of San Diego, 254 NLRB 1248 ( 1981) That case was not in point In Jensen's, Administra- tive Law Judge Shapiro found that General Counsel established a prima facie case that the layoffs involved were discriminatorily motivated, in part on the basis of evidence that . "Some employees were told by high- level management officials that the employees' union activities was the reason for the layoffs" (id. at 1256) In the present case, it was uncontro- verted that management told the employees the layoffs were due to lack of work and had nothing to do with the "problems" that they had at the plant (263 NLRB at 305). HARDWICK CO. If as expressly found by the Board , General Counsel failed to establish a prima facie case with respect to the failure to recall certain employees, then it follows that General Counsel also failed to establish a prima facie case with respect to the layoffs, and that the Board so held when it affirmed Judge Cohen's decision. In an evident effort to circumvent the plain implica- tions of the Board's decision in the unfair labor practice case, General Counsel argues in this proceeding that in addition to the animus manifested by the Company's vio- lations of Section 8(a)(1) and the timing of the layoffs, General Counsel was substantially justified in proceeding on the 8(a)(3) allegations because the Company changed its method of selecting employees for layoff for reasons related to the union activity. General Counsel further argues that an award would be unjust because the Com- pany failed to fully cooperate in the investigation. (Sup- plemental Brief, pp. 2, 3, see also memorandum in sup- port of answer, pp. 3, 4, and Response to Judge Cohen's order of May 23, 1983, fn. 2 and p. 2.) General Counsel also made the first argument in the unfair labor practice proceeding, and made the second argument in a different form, arguing that the Company failed to adequately document its economic defense (brief to administrative law judge, pp. 6, 7; see also brief in support of excep- tions, p. 5). Both arguments are wrong in law and fact. As found by Judge Cohen, the October 30 and Novem- ber 1980 layoffs were made on the basis of seniority rather than the prior practice of subjective evaluation, on the advice of Company counsel as a way of safeguarding against being accused of discriminatorily selecting the union activists for layoff. As a result, the Company re- tained the leading union activists. General Counsel was aware of the pertinent facts by the time it completed its investigation, and did not obtain or present any evidence which would demonstrate a contrary intention. In For- eign Trade Export Packing Co., 221 NLRB 785, 790 (1975), the Board held in sum that such a change in layoff procedure constitutes evidence which militates against, rather than in favor of a finding of discriminato- ry motivation . Therefore General Counsel's position was contrary to Board law as it had developed by the time the complaint issued in the present case. The second argument requires further consideration of the investigation and the course of the unfair labor prac- tice proceeding. After obtaining statements from the Union's witnesses, Field Examiner Wells met with the Company on December 5, 1980, for the purpose of ob- taining the Company's position. At that meeting Compa- ny President Robert Hardwick showed Wells interim profit-and-loss type statements for 1 month in 1979 and the same month in 1980, for the purpose of demonstrat- ing decline in the Company's business, and thereby cor- roborating the affidavits of Hardwick and Gene Wilson, which set forth the Company's position concerning the layoffs. Hardwick also showed invoices for repair work on the angle roller, but did not show Wells any other documents. The Company refused to furnish copies of the financial statements on the grounds that they were confidential . However, Wells had ample opportunity to examine the statements. Wells asked for records which would show work performed before the layoffs and 81 work scheduled for the future . Company Attorney Mitchell responded that he could not see the relevance of such documents and did not know if they existed. Wells did not ask for any other records . 10 As noted, I have credited Wells' version of the meeting . However, in light of subsequent developments I find that Attorney Mitchell was correct . General Counsel thereafter never specifically requested records as described by Wells, and no evidence was presented which would indicate that the Company maintained such records . General Counsel subpoenaed for production at the unfair labor practice hearing, records showing (1) names, classifications and dates of hire, layoff and recall of employees, (2) overtime work, (3) references to layoffs for lack of work , and (4) monthly earnings statements . At the hearing, the follow- ing documents reflecting information contained in com- pany records, were presented in evidence: Joint Exhibit 2 (payroll records for each Bessemer employee during 1980); and Respondent's Exhibits 1 (sales volume from July 1, 1979 through June 30, 1981 , by 6-month periods), 2 (hours worked including regular and overtime, each month at Bessemer and Birmingham , from July 1, 1979 through June 30, 1981 , with 6-month totals), and 3 (list of employees laid off for lack of work). Although the Company initially and unsuccessfully moved to quash General Counsel's subpoena, and was unwilling to comply with the subpoena, the Company did in fact comply with the subpoena as directed by Judge Cohen. As General Counsel never sought production of the records requested by Field Examiner Wells, or even at- tempted to show the existence of such records , it follows that General Counsel either (1) impliedly acknowledged that the Company did not maintain such records, or (2) did not consider them material to the case. Therefore it is evident that the whole matter of alleged lack of coop- eration in the investigation is simply a red herring which has no bearing on the questions of substantial justification or special circumstances which would make an award unjust. In Debolt Transfer, supra, which may now be regarded as a leading Board case under EAJA, Administrative Law Judge Leiner made pointed observations which al- though addressed to the issues litigated in his underlying 10 My findings with respect to the December 5 meeting are based on the testimony and affidavit of Wells and the admissions of Hardwick in his testimony in this proceeding. Hardwick's testimony tended to be con- tradictory and evasive, and the joint affidavit of Hardwick and Mitchell submitted by the Company in response to Judge Cohen 's May 23, 1983 order was demonstrably inaccurate or misleading in several respects Hardwick initially testified that he showed Wells only the interim finan- cial statements 'because he did not ask for any other documents. Howev- er, he subsequently testified that he could not recall whether Wells asked for records which would show work in progress Attorney Mitchell was similarly equivocal in his testimony, stating that he could not recall whether Wells asked for copies of the financial records In their joint affi- davit Hardwick and Mitchell stated that they presented sales invoices showing the decline of sales in 1980 , and records confirming the nature and extent of prior layoffs However, in his testimony Hardwick admitted that he showed only the two interim financial statements and repair in- voices The joint affidavit also indicates that the Company met with Wells several days after submitting its written statement of position, al- though in fact the Company submitted its statement 5 days after the inter- view I have no comparable reservations with respect to Wells' testimo- ny, and I credit his version of the December 5 meeting 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unfair labor practice case, are equally applicable to the present case. In Debolt, General Counsel had unsuccess- fully contended that the employer violated the NLRA by unilaterally canceling leases with owner-operators of trucking equipment. Judge Leiner found in the subse- quent EAJA proceeding that "there is little doubt as to the existence of a statutory prima facie case ... . Rather [the problem is] the existence of a defense by con- tract and practice. General Counsel cannot prove its jus- tification in issuing complaint merely by relying on its prima facie case, no matter how dazzling . It has, I be- lieve, a right and also duty to examine the practice of the parties and the language of collective-bargaining agree- ment . . . for patent defenses. This, I believe, it failed to do . . . . General Counsel , at best, was concentrating only on constructing a prima facie case . . . I conclude General Counsel failed to sustain its burden of showing, under Section 102. 144(a) that the proceeding was reason- able in law and fact, and that General Counsel was bet- ting on a long shot." (Emphasis in original .) The Board affirmed Judge Leiner's award of fees and expenses. Judge Leiner's rationale is also applicable to the present case. Here, General Counsel not only failed to present a prima facie case, but also proceeded ahead in near total disregard of the employer's economic defense, and of the admissions of its own witnesses. In its posth- earing brief to Judge Cohen, General Counsel made much of the fact that the Company's records showed a large amount of overtime during the week ending Octo- ber 30, 1980. In so doing General Counsel exalted one isolated fact in disregard of the surrounding circum- stances and evidence, including the overall and continu- ous decline in both sales volume and hours worked at both the Birmingham and Bessemer plants during 1980, the testimony of its own witnesses that work was slow and they were simply doing cleanup work at the time of the layoff, and the uncontroverted testimony of Gene Wilson that overtime was necessary in order to complete one rush job.'' General Counsel also argued that the Company failed to document its economic defense in suf- ficient detail (brief to Judge Cohen, fn. 12; brief in sup- port of exceptions, pp. 5-6). Such an argument might make sense if those documents introduced in evidence were inconsistent with testimony adduced at the hearing. However, they were not, and there was no reason for the Company to document its position in greater detail. I do not agree with General Counsel's contention (supple- mental brief, p. 2), that the layoffs "merely created a credibility question" which had to be resolved through a hearing. Judge Cohen did not base his dismissal of the 8(a)(3) allegations on any resolutions of disputed issues of fact. Rather he based his decision on uncontroverted facts which were already known to the Regional Office. The case did not present any novel questions of law. II General Counsel witnesses Wilcox, James, and Clemons stated in their investigatory affidavits that they still had work to do when they were laid off General Counsel did not question them on this matter at the hearing, but Company counsel easily elicited admissions from Wilcox and other employees that work was slow and they were just doing clean- up If General Counsel regarded the matter as significant , then the infer- ence is warranted that General Counsel knew that the affidavits were in- correct. Rather Judge Cohen dismissed the allegations on the basis of settled decisional authority. I find that General Counsel's position was not reasonable in law or fact, and that there are no special circumstances which would make an award unjust.' 2 IV. PROPRIETY OF THE COMPANY 'S CLAIMS FOR FEES AND COSTS Section 102 . 145 of the Board's Rules provide in perti- nent part that awards will be based on rates customarily charged by attorneys, subject to a limitation of $75 per hour, plus reasonable expenses . The Company has sum- marized its claims for fees and expenses through October 31, 1984, as follows: Summary of Fee and Expense Request Unfair Labor Practice Case (1) Fees relative to the investigation of the charges-$3,255.00 (2) Fees relating to defending the issues raised by the complaint-$7,260.00 (3) Expenses-$180.27 Total-$10,695.27 EAJA Proceeding Fees-$16,207.50 Expenses-$20.45 + $73.60 + copying + tran- script Total EAJA Fees and Expenses:-$16,321.55 Total ULP + EAJA Fees and Expenses: $27,016.82 The Company's claim for fees is based on the maxi- mum allowable rate of $75 per hour, although Company Attorney Mitchell testified that the prevailing rate for the services performed by his firm normally ranges from $80 to $120 per hour; and that he did not charge the Company less than $75 per hour. The application does not include any fees or expenses incurred in connection with the representation proceeding , General Counsel does not contend that $75 per hour was an excessive or unreasonable rate of compensation. Therefore I find without merit General Counsel 's argument that the Com- pany was required to state the exact fee charged for its attorneys' services. Section 102 . 145 of the Board's Rules provides that the application shall be accompanied by full documentation of the fees and expenses "for which an award is sought," and not that portion for which no award is sought. General Counsel does not dispute the accuracy of the charges or the reasonableness of any item or time spent in performing the services . As indicat- is General Counsel does not contend , nor does the record indicate, that the Company unduly protracted the unfair labor practice proceed- ing The Company presented its defense in an expeditious manner, and to a considerable extent through cross-examination of General Counsel's witnesses In contrast General Counsel tended to belabor the largely un- disputed 8(a)(1) allegations (most of General Counsel 's brief to Judge Cohen was devoted to those allegations ) General Counsel also tended to prolong the EAJA proceeding by its repeated and sometimes repetitious motions for summary dismissal, including an unnecessary appeal from Judge Cohen's order directing a hearing. HARDWICK CO. ed, the remaining issues have now been resolved by the Board's decision in Debolt Transfer. The claim for fees and expenses incurred prior to issuance of the complaint ($3255 in fees and $30 in costs) is disallowed. The re- mainder of the claim, covering unfair labor practice and EAJA litigation fees and expenses, is allowable and proper. The award herein is without prejudice to the Company's right to submit additional or amended claims in the event of further litigation of this proceeding. Upon the foregoing findings of fact, conclusions of law and the entire record , and pursuant to my authority 83 under EAJA and the Board's Rules, I issue the following recommended 13 ORDER Applicant Hardwick Company, Inc., Birmingham and Bessemer, Alabama, shall be awarded $23,731. 82 pursu- ant to its EAJA application, as amended. '' If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses