Austin Fire Equipment, LLC

National Labor Relations Board - Board Decisions

Jun 25, 2014

360 N.L.R.B. 1176 (N.L.R.B. 2014)

1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 131
Austin Fire Equipment, LLC and Road Sprinkler
Fitters Local Union No. 669, U.A. AFL–CIO.
Case 15–CA–019697
June 25, 2014
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
On May 6, 2013, Administrative Law Judge Margaret
G. Brakebusch issued the attached supplemental deci-
sion. The Applicant, Austin Fire Equipment, LLC (Aus-
tin Fire), filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings as
modified below, and conclusions and to adopt the
judge’s recommended Order.
The judge found, and we agree, that Austin Fire’s ap-
plication for an award of fees and expenses under the
Equal Access to Justice Act, 5 U.S.C. Sec. 504(a)(1)
(“EAJA”), should be denied because the General Coun-
sel’s case was reasonably grounded in fact and law and
was substantially justified.
I.
In the underlying complaint, the General Counsel al-
leged, among other things, that Austin Fire violated Sec-
tion 8(a)(5) and (1) of the Act when it changed employ-
ees’ terms and conditions of employment during the term
of an existing collective-bargaining agreement without
notifying and bargaining with the Union. The judge
found that violation and ordered Austin Fire to make
employees whole from the time it made the changes until
the contract expired. The Board affirmed. Austin Fire
Equipment, LLC, 359 NLRB 37 (2012).1
The complaint also alleged that Austin Fire committed
additional bargaining violations after the contract ex-
pired. Those issues required determining whether the
bargaining relationship between Austin Fire and the Un-
ion was governed by Section 8(f) or, rather, Section 9(a)
of the Act. If the relationship was governed by 8(f), then
Austin Fire was free to terminate the relationship when
the collective-bargaining agreement expired and had no

1 Austin Fire’s defense to this allegation was that it repudiated the
collective-bargaining agreement at the time it made the changes and the
Union’s charge was therefore time barred by Sec. 10(b) of the Act, an
argument that the judge correctly rejected.
further bargaining obligations to the Union.2 A 9(a) bar-
gaining relationship, however, would have continued
after the contract expired, along with Austin Fire’s asso-
ciated duty to bargain.3
To establish the requisite 9(a) relationship, the General
Counsel relied solely upon the parties’ execution of an
acknowledgment form that, the General Counsel argued,
met all the requirements of Staunton Fuel & Material,
335 NLRB 717 (2001), the Board’s current standard.4
The General Counsel alternatively argued, however, that
“a better view of the law” required that Staunton Fuel be
at least partially overruled. Under his proposed modifi-
cations to Board law, the General Counsel requested that
the judge find that the relationship between the parties
was governed by Section 8(f) rather than Section 9(a) of
the Act.5
The judge rejected the General Counsel’s argument
that the acknowledgment form, standing alone, estab-
lished a 9(a) relationship under current Board law; con-
sequently, he found that the parties’ relationship was
governed by Section 8(f).6 The Board affirmed the
judge, finding that the acknowledgment language did not
satisfy the requirements of Staunton Fuel, 359 NLRB
37.7
On October 26, 2012, Austin Fire filed its EAJA appli-
cation for attorneys’ fees and costs. The Board referred
the matter to the judge in the underlying case, who found
that the application should be denied. Austin Fire now
excepts to this denial.

2 See John Deklewa & Sons, 282 NLRB 1375, 1386–1387 (1987),
enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988).
3 See Levitz Furniture Co., 333 NLRB 717 (2001).
4 In Staunton Fuel, the Board held that contract language alone will
establish a Sec. 9(a) relationship in the construction industry where the
language unequivocally indicates (1) that the union requested recogni-
tion as majority representative, (2) the employer recognized the union
as majority representative, and (3) the employer’s recognition was
based on the union’s having shown, or having offered to show, an
evidentiary basis of its majority support. See id. at 717.
5 The General Counsel requested that the judge overrule Staunton
Fuel to the extent that it holds that contract language alone can estab-
lish a 9(a) relationship, precluding examination of whether the union
actually had majority status at the time of the recognition. The General
Counsel also sought adoption of a new rule of law allowing the Board
to look beyond the 10(b) limitations period to determine whether a
union actually had majority support at the time it was recognized. We
address this aspect of the case below. See fn. 14, infra.
6 The judge went on to examine the General Counsel’s proposed
modifications to the law and urge the Board to adopt them. Adminis-
trative law judges lack independent authority to change Board law, and
the judge’s views are not binding on the Board. See Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984) (“[i]t is for the Board, not the judge, to
determine whether [Board] precedent should be varied”).
7 The Board subsequently denied the Union’s motion for reconsid-
eration. 359 NLRB 576 (2013).
AUSTIN FIRE EQUIPMENT, LLC 1177
II.
Under EAJA, a qualifying party who has prevailed in
litigation before a Federal government agency is entitled
to an award of attorney’s fees and expenses incurred in
litigation unless the agency can establish that its position
was “substantially justified.” To be substantially justi-
fied, the General Counsel’s position must be “justified to
a degree that could satisfy a reasonable person” or “justi-
fied if a reasonable person could think it correct, that is,
if it has a reasonable basis in law and fact.” Pierce v.
Underwood, 487 U.S. 552, 566 fn. 2 (1988). See, e.g.,
Raley’s, 357 NLRB 880, 880–881 (2011). The “substan-
tially justified” standard does not require that the General
Counsel establish that his decision to litigate was based
on a “substantial probability of prevailing.” David Allen
Co., 335 NLRB 783, 784 (2001), citing Carmel Furni-
ture Corp., 277 NLRB 1105, 1106 (1985).
Turning to the present case, as we explain below, the
Board had never before examined the precise contractual
recognition language at issue here. Our cases make
clear, in turn, that in this highly technical corner of labor
law, small differences in wording can have large conse-
quences. None of our prior decisions automatically de-
termined the outcome of this case. Indeed, this case can
fairly be said to straddle the line between those decisions
in which the Board has found contractual language suffi-
cient to establish a 9(a) relationship and cases where par-
ticular language was found insufficient. In these circum-
stances, we have no difficulty finding, contrary to our
dissenting colleague, that the General Counsel was sub-
stantially justified in pursuing this litigation.8 “The mere
fact that the General Counsel lost or advanced a position
contrary to prior precedent does not mean the litigation
lacked substantial justification.” Raley’s, supra, 357
NLRB 880, 880.
We now turn to the details of the case. The acknowl-
edgment form at issue reads as follows:
The Employer executing this document below has, on
the basis of objective and reliable information, con-
firmed that a clear majority of the sprinkler fitters in its
employ are members of, and are represented by [the
Union] for the purposes of collective bargaining.
The Employer therefore unconditionally acknowledges
and confirms that [the Union] is the exclusive bargain-
ing representative of its sprinkler fitter employees pur-

8 We find it unnecessary, however, to rely on the portions of the
judge’s decision finding that the General Counsel was substantially
justified in pursuing this case because there were credibility determina-
tions to be made.
suant to Section 9(a) of the National Labor Relations
Act.
This language is similar to contractual language found
sufficient to establish a 9(a) relationship in two cases
decided by the Board before Staunton Fuel. See MFP
Fire Protection, 318 NLRB 840 (1995), enfd. 101 F.3d
1341 (10th Cir. 1996), and Triple A Fire Protection, 312
NLRB 1088 (1993), supplemented by 315 NLRB 409
(1994), enfd. 136 F.3d 727 (11th Cir. 1998), cert. denied
525 U.S. 1067 (1999).9 In those cases, the acknowledg-
ment forms stated that a majority of employees “have
designated, are members of, and are represented by [the
union] for purposes of collective bargaining.”10 In addi-
tion, the forms stated that the employer “therefore un-
conditionally acknowledges and confirms that [the Un-
ion] is the exclusive bargaining representative of its [bar-
gaining unit employees] pursuant to Section 9(a) of the
National Labor Relations Act.” Based on these forms,
the Board found that the parties had established a 9(a)
relationship.
By contrast, in Staunton Fuel, the Board found that a
9(a) relationship was not formed based on contractual
language stating, among other things, that the employer
“recognized the union as the sole and exclusive collec-
tive bargaining agent” for all employees in the defined
unit. 335 NLRB at 717. The Board held that, regardless
of the parties’ intent, this language was insufficient to
establish a 9(a) relationship because it did not state that
the employer’s recognition was based on a contempora-
neous showing, or offer by the union to show, that the
union had majority support. Id. at 720.
Staunton Fuel, unlike MFP, Triple A, and this case, did
not include additional contractual language stating that
the employer expressly acknowledged the union’s Sec-
tion 9(a) representative status. But the Staunton Board
did offer relevant observations to guide the General
Counsel and labor law practitioners. The Board first
noted that, although it would not be necessary for con-
tract language to expressly reference 9(a), such a refer-
ence would indicate that the parties intended to establish

9 The judge’s discussion of these two cases in her supplemental de-
cision may be read as characterizing the contractual language at issue in
this case as “identical” to the language in MFP and Triple A. The judge
correctly noted elsewhere in her decision, however, that the language in
MFP and Triple A, while identical in those two cases, was only “sub-
stantially similar” to the language in this case. As discussed, the sub-
stantial similarity to the language found sufficient in earlier Board
decisions to establish a Sec. 9(a) relationship was sufficient here to
establish that the General Counsel’s position was based on a reasonable
(if ultimately incorrect) interpretation of the relevant documents and the
Board’s case law.
10 The italicized language is not included in the acknowledgment
signed by Austin Fire.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1178
a 9(a) relationship rather than an 8(f) relationship. By
contrast, the Board explained that certain language con-
cerning union “membership” and “representation,” with-
out more, is insufficient to establish a 9(a) relationship,
in part because it was compatible with either an 8(f) or a
9(a) relationship. Id.
Since Staunton Fuel, the Board has continued to care-
fully analyze contractual language to determine whether
an agreement, examined in its entirety, “conclusively
notifies the parties that a 9(a) relationship is intended.”
Madison Industries, 349 NLRB 1306, 1308 (2007), cit-
ing Oklahoma Installation Co., 219 F.3d 1160, 1165
(10th Cir. 2000), denying enf. to 325 NLRB 741 (1998).
Applying this approach to the contractual language in the
present case, the Board found that the acknowledgment
form concerned only employees’ union membership and
representation and was insufficient to form a 9(a) rela-
tionship under Staunton Fuel, 359 NLRB 37, 37. See
also USA Fire Protection, 358 NLRB 1722 (2012), re-
consideration denied, 359 NLRB 574 (2013).
We nevertheless find, contrary to our dissenting col-
league, that the General Counsel’s position was substan-
tially justified in the circumstances. It is true that the
acknowledgment form signed by Austin Fire lacked the
“have designated” language that was present in MFP and
Triple A. But the acknowledgment did contain relevant
language that was missing in Staunton Fuel, and that
suggested the existence of a Section 9(a) relationship: an
explicit reference to the parties’ intent to create a Sec-
tion 9(a) relationship. Such language was present in
MFP and Triple A.11 The Board had never before exam-
ined contract language that included an explicit confir-
mation by the employer that the parties were forming a
9(a) relationship, but that also only referenced employ-
ees’ union membership and representation. In Staunton
Fuel, as explained, the Board expressly suggested that
the inclusion of an explicit reference to 9(a) could carry
significant weight in the analysis. At the least, Staunton
Fuel did not determine the precise impact of an explicit
reference to 9(a).12

11 Unlike the dissent, we see no indication in Staunton Fuel that the
Board intended to overrule MFP and Triple A or to cast doubt on their
holdings. Nor did any party here argue that MFP and Triple A were no
longer good law.
12 We disagree with our dissenting colleague’s narrow reading of
Staunton as saying that contract language stating that a majority of
employees have “designated” or “authorized” the union to represent
them is essential to Sec. 9(a) status and that its absence is fatal. What
the Staunton Board required was language unequivocally indicating
that the union requested, and the employer granted, recognition as the
majority or 9(a) representative of the unit employees, and that the em-
ployer’s recognition was based on the union’s having shown, or having
offered to show, evidence of its majority support. Staunton at 719–720.
These are the “minimum requirements” referenced by our colleague.
In our view, reasonable minds could differ on the ef-
fect of such a reference in an otherwise insufficient con-
tractual recognition clause.13 No definitive answer was
available until the Board had the opportunity to examine
the issue in this case, and we find that the General Coun-
sel was substantially justified in pursuing this opportuni-
ty.14
Our dissenting colleague confuses a losing argument
with an unreasonable one. To be clear, we are not assert-
ing that the General Counsel’s interpretation of prior
cases was correct, nor, given the Board’s ultimate deter-
mination, could we do so. But that is no longer the ques-
tion before us. See David Allen, supra. We simply find
that, given the facts and the Board’s prior case law, a
reasonable person could think (albeit wrongly) that the
General Counsel’s position was correct. Pierce, supra.
We also disagree with our colleague that we err in
denying an EAJA recovery because the explicit 9(a) lan-
guage in the parties’ acknowledgment form was not the
“focus” of the General Counsel’s argument to the judge
and the relative importance of the 9(a) language was not
discussed in the judge’s or the Board’s initial decisions.
Our colleague takes too narrow a view of the General
Counsel’s position. At all stages of the litigation, the
General Counsel consistently argued that the acknowl-
edgment language, as a whole, established a 9(a) rela-
tionship pursuant to the requirements of Staunton. Ex-

The Board did not hold that the word “designated” or “authorized” is a
prerequisite to establishing 9(a) status. Further, our colleague is incor-
rect when he suggests that an express reference to 9(a) in the parties’
agreement is immaterial to the inquiry under Staunton. To the contrary,
as described, the Staunton Board plainly stated that such a reference,
although certainly not determinative, could be a factor pointing toward
9(a) status.
13 Likewise, reasonable minds could differ on the relevance of other
factors in determining whether 8(f) or 9(a) relationships are formed. In
the initial decision on the merits, then-Member Griffin expressed his
view that in states where State law prohibits a collective-bargaining
clause requiring union membership (states such as Louisiana, where
this case arises), union membership is evidence of support for the union
and an employer could appropriately rely on evidence of union mem-
bership in certain circumstances not presented here. See 359 NLRB 37,
37 fn. 3.
14 Given its disposition of the case, the Board found it unnecessary
to address the General Counsel’s proposal to overrule Staunton Fuel,
359 NLRB 37, 37 fn. 5. While not necessarily providing an independ-
ent ground for pursuing this case, it is entirely appropriate for the Gen-
eral Counsel to request that the Board revisit and overrule precedent for
any number of reasons, including to account for changed circumstances
or experience applying the law, or to bring the Board’s precedent more
in line with that of reviewing courts. Here, the General Counsel had
taken into account the D.C. Circuit’s criticism of the Staunton Fuel
standard. See Nova Plumbing, Inc. v. NLRB, 330 F.3d 531, 536–537
(D.C. Cir. 2003). We would not wish to discourage the General Coun-
sel from performing his proper role in developing Board law. EAJA is
not intended to deter the Agency from bringing forward new theories of
the law. See Galloway School Lines, 315 NLRB 473, 473 (1994).
AUSTIN FIRE EQUIPMENT, LLC 1179
amining the acknowledgment language as a whole clear-
ly includes a consideration of the explicit 9(a) language,
and an assertion that the explicit reference to 9(a) con-
tributed towards establishing the parties’ 9(a) relation-
ship is an intrinsic part of the General Counsel’s argu-
ment. The Board did not find the General Counsel’s
argument persuasive, but, for the reasons discussed
above, we find now that his position was at least substan-
tially justified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the application of Austin Fire Equipment,
LLC, Prairieville, Louisiana, for attorney’s fees and ex-
penses under the Equal Access to Justice Act is denied.
MEMBER MISCIMARRA, dissenting.
Under the Equal Access to Justice Act (EAJA), the
Board applies an objective standard when evaluating
whether a party is entitled to reimbursement for certain
expenses resulting from meritless unfair labor practice
charges. An EAJA recovery is appropriate where “a rea-
sonable person” would find that the claims were not pur-
sued with “substantial justification” at each stage of the
proceeding. Galloway School Lines, 315 NLRB 473,
473 (1994) (citing Pierce v. Underwood, 487 U.S. 552,
565 (1988)).
The objective nature of this inquiry is important be-
cause diligent, hard-working agency representatives
sometimes make mistakes that warrant an EAJA recov-
ery. Even if the pursuit of a particular claim is well in-
tentioned, EAJA provides for a recovery if the claim was
not “substantially justified” when reviewed under a rea-
sonableness standard. Teamsters Local 741 (A.B.F.
Freight), 321 NLRB 886, 889 (1996). I dissent in the
instant case because I believe this reasonableness stand-
ard warrants a recovery under EAJA.
The Board’s decision in Staunton Fuel & Material,
335 NLRB 717, 720 (2001), controls the instant case.
Under Staunton, the employer’s actions challenged
here—the failure to recognize and bargain with the Un-
ion following expiration of the 2007–2010 collective-
bargaining agreement—would be lawful if the agreement
stated that a majority of the bargaining-unit employees
were union “members” or “represented” by the union.
Such language would, under Staunton, be deemed con-
sistent with a Section 8(f) relationship, which, upon con-
tract expiration, could lawfully be abandoned by the em-
ployer. Conversely, according to Staunton, the employ-
er’s post-expiration abandonment of the relationship
would be unlawful if the contract stated that the union
had the “support” or “authorization” of a majority of
employees because such language would be indicative of
a 9(a) relationship. Id.1
In substance, the General Counsel pursued this litiga-
tion against the Respondent, Austin Fire Equipment,
LLC, based on an argument that the “members” and
“represented” language in Austin’s labor contract should,
under Staunton, be regarded as equivalent to language
stating that a union has the “support” or “authorization”
of an employee majority. However, the Staunton ruling
rejected this precise argument (as did the Board in its
decision on the merits in the instant case).2 Indeed,
Staunton even states, as an example, that the “members”
and “represented” type of contract language is not equiv-
alent to a collective-bargaining agreement provision re-
ferring to the union having the “support” of or “authori-
zation” from a majority of employees. Specifically, the
Board in Staunton held:
[T]here is a significant difference between a contractual
statement that the union “represents” a majority of unit
employees—which would be accurate under either an
8(f) or a 9(a) agreement—and a statement to the effect
that, for example, the union “has the support” or “has
the authorization” of a majority to represent them.
Similarly, a provision stating only that a majority of
unit employees “are members” of the union would be
consistent with a union security obligation under either
an 8(f) or a 9(a) relationship and is therefore insuffi-
cient to confirm 9(a) status. To the extent that any of
our post-Deklewa cases may be read to imply that an
agreement indicating that the union “represents a ma-
jority” or has a majority of “members” in the unit,
without more, is independently sufficient to establish
9(a) status, those cases are overruled.

1 The particular issue here is whether the Respondent’s bargaining
relationship was governed by Section 8(f) of the Act (which would be
the case if the contract referred to an employee majority being union
“members” or “represented” by the union), or whether the bargaining
relationship was governed by Section 9(a) (which would be the case if
the contract referred to the union having the “support” of or “authoriza-
tion” from an employee majority). It is uncontroverted now—as it was
at the beginning of the case—that the Austin contract contains precisely
the type of “members” and “represented” language that, under Staun-
ton, compels a conclusion that the bargaining relationship was gov-
erned by Section 8(f), and the challenged employer actions were lawful.
More details regarding relevant facts and the lack of merit in the dis-
missed claims are set forth in the decisions rendered previously by the
judge and the Board.
In Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), the
United States Court of Appeals for the District of Columbia Circuit
disagreed with the Board’s analysis in Staunton Fuel and refused to
find a 9(a) relationship based solely on contract language. Id. at 536–
537. I do not pass here on the merits of Staunton Fuel or Nova Plumb-
ing because the General Counsel’s position would fail to be substantial-
ly justified under both standards.
2 See Austin Fire Equipment, LLC, 359 NLRB 37, 37 (2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
Id. at 720 (citations omitted; emphasis added).
In short, the General Counsel here relied on contract
language that the Board in Staunton expressly held was
not sufficient to establish the violation alleged against
Austin. In my view, an EAJA recovery is warranted be-
cause a reasonable person could not interpret either
Staunton (which is controlling precedent) or Respond-
ent’s contract language (which applies here) in any other
way.
For two reasons, an EAJA award is not rendered inap-
propriate by the General Counsel’s reliance on two earli-
er cases: Triple A Fire Protection, 312 NLRB 1088
(1993),3 and MFP Fire Protection, 318 NLRB 840
(1995).4 First, the recognition language in those cases
stated, in relevant part, that “a clear majority . . . have
designated, are members of, and are represented by [the
union].” MFP Fire Protection, supra at 841 (emphasis
added); Triple A Fire Protection, supra at 1088 (empha-
sis added). The phrase “have designated” is synonymous
with “authorized.” Staunton teaches that (i) the presence
of such a phrase (contained in the MFP Fire Protection
and Triple A Fire Protection CBAs) was essential to Sec-
tion 9(a) status, and (ii) the absence of such a phrase (as
in the Austin CBA) is fatal to Section 9(a) status.5 In this
regard, MFP Fire Protection and Triple A Fire Protec-
tion reinforce the critical difference between the contract
language in Staunton and the language in the instant
case.
Second, even if the relevant language in MFP Fire
Protection and Triple A Fire Protection could reasonably
be regarded as supporting the General Counsel’s claims
pursued here against Austin (which they do not), Staun-
ton explicitly stated that it overruled any prior decision
that “may be read to imply that an agreement indicating
that the union ‘represents a majority’ or has a majority of
‘members’ in the unit, without more, is independently
sufficient to establish 9(a) status.” 335 NLRB at 720.
Thus, the General Counsel’s position was squarely con-
tradicted by Staunton; it was not reasonably supported by
Triple A Fire Protection or MFP Fire Protection; and the
latter two decisions—if they provided colorable support
for the claims pursued against Austin here—were ex-
pressly overruled in Staunton. This warrants an EAJA

3 Supplemented by 315 NLRB 409 (1994), enfd. 136 F.3d 727 (11th
Cir. 1998), cert. denied 525 U.S. 1067 (1999).
4 Enfd. 101 F.3d 1341 (10th Cir. 1996).
5 For purposes of Staunton Fuel, supra at 720, a variety of different
phrases could be sufficient to unequivocally indicate that the employ-
er’s recognition of the union was based on the union’s having shown or
offered to show evidence of majority support. Against this standard,
the language contained in Austin Fire’s contract—stating that a majori-
ty of employees are “members” of and “represented by” the union—is
clearly “insufficient to confirm 9(a) status.” Id.
recovery because the General Counsel did not have a
reasonable legal basis for his theory of the case. See
Pierce v. Underwood, 487 U.S. 552, 563–566 (1988).
As a final matter, unlike my colleagues, I do not be-
lieve the General Counsel’s prosecution of this case can
be deemed reasonable based on an additional phrase in
the Austin Fire CBA which states the union was a bar-
gaining representative “pursuant to Section 9(a) of the
[NLRA].” Although this Section 9(a) phrase is now
characterized by my colleagues as “relevant language”
that ostensibly warranted more than 3 years of unsuc-
cessful litigation against the Respondent, this language
was never the focus of General Counsel arguments pre-
sented either to the judge or to the Board. Likewise, the
judge’s decision on the merits quoted the “language . . .
in issue in this case” with no reference to the Section 9(a)
phrase. 359 NLRB 37, 46. Similarly, the Board’s deci-
sion on the merits analyzed the relevant CBA language
with no reference to the Section 9(a) phrase. Id. at 37 fn.
5. It is unreasonable to deny an EAJA recovery by in-
voking a distinction that the General Counsel never even
argued either to the judge or to the Board. And if one
considers the merits, the distinction described by my
colleagues does not reasonably justify the prosecution of
this case against the Respondent. The Board in Staunton
squarely addressed the potential effect of explicit Section
9(a) language in a CBA, and the Board in Staunton clear-
ly held that the presence or absence of 9(a) language
would not be controlling.6

6 The Board in Staunton stated that an explicit reference to Section
9(a) “would indicate that the parties intended to establish a majority
rather than an 8(f) relationship.” 335 NLRB at 720 (citation omitted;
emphasis added). However, the Board in Staunton stated that “[t]he
issue . . . is not simply whether the parties may have intended to change
their relationship but whether they succeeded in doing so.” Id. at 720
fn. 17 (emphasis added). Therefore, the Board in Staunton clearly
indicated that the existence or nonexistence of a Section 9(a) relation-
ship “must be reviewed under the criteria we establish” without regard
to whether or not the CBA contained an explicit reference to Section
9(a). Id. (emphasis added). See also Staunton, 335 NLRB at 719 (de-
scribing the Board’s criteria as “minimum requirements for what must
be stated in a written recognition agreement or contract clause in order
for a union to attain 9(a) status solely on the basis of such an agree-
ment” (emphasis added)). This contradicts my colleagues’ suggestion
that “reasonable minds could differ on the effect of [a Section 9(a)]
reference in an otherwise insufficient contractual recognition clause.”
It is undisputed that the language at issue here—without regard to the
CBA’s reference to Section 9(a)—did not meet the “minimum require-
ments” described in Staunton.
In fact, earlier in this case, the Board reached precisely the same
conclusion, and held that the Austin CBA’s explicit reference to Sec-
tion 9(a) made no difference. After the General Counsel’s allegations
were decided by the ALJ and the Board, the Union (not the General
Counsel) filed a motion for reconsideration arguing in part that “the
Acknowledgement’s express reference to Section 9(a) establishes the
parties’ intent to form a 9(a) relationship.” 359 NLRB 576, 576 (2013).
Far from characterizing the Section 9(a) phrase as relevant language,
AUSTIN FIRE EQUIPMENT, LLC 1181
Nor do I believe an EAJA recovery should be denied
because the General Counsel argued for a change in the
law after “tak[ing] into account the D.C. Circuit’s criti-
cism of the Staunton Fuel standard.” The D.C. Circuit’s
position, as articulated in Nova Plumbing, Inc. v. NLRB,
330 F.3d 531, 536–537 (D.C. Cir. 2003), is that contract
language never converts a Section 8(f) relationship into a
Section 9(a) relationship. The D.C. Circuit’s criticism, if
taken into account, reinforces the unreasonableness of
the litigation against Respondent and bolsters the case for
an EAJA recovery.7
I greatly respect the difficult task undertaken by the
General Counsel, who, with the support of regional at-
torneys throughout the country, processes thousands of
unfair labor practice charges each year. It breaks no new
ground to recognize that divergent views may exist re-
garding the proper interpretation of the Act. This is evi-
dent, for example, in many decisions where Board mem-
bers disagree or where the Board disagrees with deci-
sions by its administrative law judges or the courts.
However, we should also recognize those instances—
extremely few in number—where claims are contradicted
by controlling precedent and have been pursued without
reasonable justification. In my view, this is such a case,
and EAJA provides for a recovery of expenses by the
Respondent. Accordingly, I respectfully dissent.
Kevin McClue, Esq., for the Acting General Counsel.
Harold Koretzky, Esq., Stephen Rose, Esq., Russell L. Foster,
Esq., and Sarah E. Stogner, Esq., for the Respondent.
William W. Osborn Jr., Esq. and Natalie C. Mofett, Esq., for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge. On
October 26, 2012, Austin Fire Equipment, LLC (the Respond-

the Board stated that “Staunton does not suggest that the inclusion of
such a reference is conclusive. . . .” Id. (emphasis added).
7 When an EAJA recovery is warranted by an objectively erroneous
reading of controlling precedent, it would eviscerate EAJA to deny an
EAJA recovery whenever an agency makes an additional argument to
change the law, where the General Counsel’s theory of the case relies
not on the law as changed, but on extant precedent. The General Coun-
sel’s central focus in the instant case, from its inception, was that the
Austin CBA created a Section 9(a) relationship applying the Board’s
decisions in Staunton and similar cases. Unlike the view expressed by
my colleagues, an EAJA recovery here should not “discourage the
General Counsel from performing his proper role in developing Board
law.” The General Counsel can clearly advocate that the Board modify
or overrule Staunton in an appropriate future case (for example, one in
which a 9(a) relationship would exist under Staunton, but would not
under the D.C. Circuit’s reasoning in Nova Plumbing). The only limi-
tation under EAJA is that the General Counsel avoid prosecuting cases
based primarily on grounds that are demonstrably lacking in substantial
justification.
ent) filed an application for attorneys’ fees and costs pursuant
to the Equal Access to Justice Act (EAJA). On November 16,
2012, the Acting General Counsel filed a motion to dismiss
application for an award of attorney fees and expenses under
the Equal Access to Justice Act. On November 16, 2012, Re-
spondent filed an amendment to its EAJA Application and on
November 20, 2012, Respondent filed a second amendment to
its EAJA Application. On December 7, 2012, Respondent filed
a Memorandum in Opposition to motion to dismiss EAJA Ap-
plication. Attached to the memorandum is a supplemental affi-
davit from Respondent’s counsel as well as a request for addi-
tional fees and costs since the filing of Respondent’s October
26, 2012 EAJA application.
On February 14, 2013, the National Labor Relations Board
(the Board) referred the matter to the undersigned for appropri-
ate action. On March 7, 2013, the Acting General Counsel
filed counsel for Acting General Counsel’s reply to Respond-
ent’s memorandum in opposition to motion to dismiss EAJA
Application. On April 5, 2013, the Respondent filed Respond-
ent’s motion to strike untimely reply brief. On April 8, 2013,
the Acting General Counsel filed reply to Respondent’s motion
to strike reply brief. On April 25, 2013, Respondent filed Re-
spondent’s reply memorandum to support motion to strike un-
timely reply brief.
A. Preliminary Issues
1. Whether my decision is stayed
Counsel for the Acting General Counsel takes the position
under Section 102.148(c) that this matter is stayed pending a
final disposition of the underlying case. Section 102.148(c)
provides that
Proceedings for the award of fees, but not the time limit of
this section for filing an application for an award, shall be
stayed pending final disposition of the adversary adjudication
in the event any person seeks reconsideration or review of the
decision in that proceeding.
I note, however, that under Section 102.143, the Board’s
Rules specifically define an “adversary adjudication” to mean
“unfair labor practice proceedings pending before the Board on
complaint and backpay proceedings pending before the Board
on notice of hearing.” On February 7, 2013, the Board denied
the Union’s motion for reconsideration; addressing all remain-
ing matters before the Board other than Respondent’s applica-
tion for attorney’s fees and costs. On February 14, 2013, the
Board referred Respondent’s application for attorney’s fees and
costs to me for appropriate action. Accordingly, I do not find
that my decision in this matter is stayed because of any other
matters pending before the Board.
2. Whether the Acting General Counsel’s reply brief and the
Respondent’s motion to strike the Acting General Counsel’s
reply brief are timely filed
a. The Board’s applicable Rules and Regulations
Section 102.148 of the Board’s Rules provide that an EAJA
applicant has 30 days after the entry of the Board’s final order
in a proceeding to file its application for an award of fees and
expenses. Upon filing, the application shall be referred by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
Board to the administrative law judge (ALJ) who heard the
adversary adjudication upon which the application is based.
Section 102.148 provides that proceedings for the award of
fees, but not the time limit of this section for filing an applica-
tion for an award, shall be stayed pending final disposition of
the adversary adjudication in the event any person seeks recon-
sideration or review of the decision in that proceeding.
Section 102.150 provides that within 35 days after service of
an application, the Acting General Counsel may file an answer
to the application. The filing of a motion to dismiss the applica-
tion shall stay the time for filing an answer to a date 35 days
after issuance of any order denying the motion. Within 21 days
after service of any motion to dismiss, the applicant shall file a
response thereto. Within 21 days after service of an answer, the
applicant may file a reply.
b. The parties’ pleadings
As outlined above, Respondent’s EAJA application was ini-
tially filed on October 26, 2012, and the Acting General Coun-
sel filed a motion to dismiss Respondent’s application on No-
vember 16, 2012. On November 9, 2012, the Union filed a
motion for reconsideration with the Board. On November 16
and 20, 2012, Respondent filed amendments to its EAJA appli-
cation. On December 7, 2012, Respondent filed its memoran-
dum in opposition to the motion to dismiss with documentation
to amend the October 26, 2012 EAJA application. Counsel for
the Acting General Counsel asserts that while the document
was crafted as a memorandum in opposition to the Acting Gen-
eral Counsel’s motion to dismiss, it did not merely respond to
the Acting General Counsel’s motion; but included new argu-
ments and an exhibit requesting attorney fees that were not
requested in its original EAJA application. The new exhibit
was a supplemental affidavit by Respondent’s counsel detailing
the additional fees and costs since Respondent’s initial filing of
its EAJA Application.
On February 7, 2013, the Board denied the Union’s motion
for reconsideration. On February 14, 2013, the Board referred
the EAJA application to me as the administrative law judge
who heard the underlying case. On March 7, 2013, the Acting
General Counsel filed a reply brief in support of its motion to
dismiss Respondent’s EAJA application. On April 5, 2013,
Respondent filed a motion to strike the Acting General Coun-
sel’s brief that was filed on March 7, 2013. On April 8, 2013,
the Acting General Counsel filed a reply to the Respondent’s
motion to strike the Acting General Counsel’s brief.
c. Respondent’s argument in support of its motion
As outlined above, the Board’s Rules provide that the Re-
spondent had 21 days to file a response to the Acting General
Counsel’s motion to dismiss. Respondent’s memorandum in
opposition to the General Counsel’s motion to dismiss com-
plied with the time frame required by the Board’s Rules. Re-
spondent asserts, however, that the General Counsel’s March 7,
2013 reply to the Respondent’s memorandum in opposition is
untimely.
Specifically, Respondent argues that the Acting General
Counsel was in possession of the Respondent’s opposition to
the motion to dismiss since December 7, 2012. Respondent
argues that a right to reply is not provided for in the Board’s
Rules and Regulations and that the Acting General Counsel
should not be permitted to file a reply more than 3 months after
receiving Respondent’s opposition when the Rules do not grant
a right of reply, and counsel for the Acting General Counsel has
failed to timely seek leave for such a filing. On March 6, 2013,
counsel for the Acting General Counsel sent a letter to Re-
spondent’s counsel entitled “Notice of Intent to File Reply.”
Respondent asserts that the Acting General Counsel did not
seek leave to file the Reply and thus it should be stricken.
d. The Acting General Counsel’s response
The Acting General Counsel argues that the EAJA proceed-
ings were stayed on November 9, 2012, pending the final dis-
position of the Union’s motion for reconsideration filed with
the Board. Counsel for the Acting General Counsel further
asserts that after counsel for the Acting General Counsel filed
the motion to dismiss; Respondent filed three amendments to
its EAJA application while the proceedings were stayed.
Counsel additionally argues that “because the proceedings were
stayed and counsel could not reasonably respond to Respond-
ent’s three amendments to its EAJA Application” until the
Board ruled on the Union’s motion for reconsideration, counsel
for the Acting General Counsel elected to wait until the Board
issued its final decision on the motion for reconsideration to file
a reply to Respondent’s three amendments to the EAJA appli-
cation.
Counsel for the Acting General Counsel maintains that under
Section 102.150 of the Rules, counsel for the Acting General
Counsel had up to 35 days to file its supplement to its motion to
dismiss responding to Respondent’s three amendments to its
EAJA application. Counsel argues that because its reply brief
was filed on March 8, 2013, within 35 days of the Board deny-
ing the Union’s motion for reconsideration and also within 35
days of the Board referring the EAJA application to the ALJ, it
was timely filed.
Counsel for the Acting General Counsel further submits that
under Rule 102.150, Respondent has 21 days after service of
the reply brief to file a response. Because Respondent’s motion
to strike was not filed until April 5, 2013, and 28 days after
being served with the reply brief, counsel for the Acting Gen-
eral Counsel asserts that Respondent’s motion to strike is un-
timely and should be dismissed.
e. Analysis of the parties’ ancillary motions
Section 102.148 of the Board’s Rules and Regulations spe-
cifically provide that an application for an award pursuant to
EAJA must be filed with the Board within 30 days of the issu-
ance of the decision giving rise to the determination. Section
102.147 clearly delineates what must be included in any appli-
cation filed with the Board. Section 102.47(f) requires that an
EAJA applicant must provide with its application a detailed
exhibit showing the net worth of the applicant and any affili-
ates, and the exhibit must provide full disclosure of the appli-
cant’s and its affiliates’ assets and liabilities and must be suffi-
cient to determine whether the applicant qualifies under the
standards of the Rules. Respondent’s October 26, 2012 applica-
tion was incomplete and did not comport with the requirements
of Section 102.7(f). The only evidence submitted by Respond-
ent in support of its status as a party entitled to relief under
AUSTIN FIRE EQUIPMENT, LLC 1183
EAJA was a single, one-page affidavit by owner Russell Ritch-
ie. The affidavit states that Respondent’s 2011 balance sheet
was attached and that Respondent’s net worth “did not exceed
$7 million” when the complaint issued on January 31, 2011.
Despite Ritchie’s assertions, however, the balance sheet was
not attached to the affidavit and there was no other information
provided giving the requisite full disclosure of the Respond-
ent’s and its affiliates assets and liabilities. On November 16,
2011, Respondent finally submitted a copy of Respondent’s
2011 balance sheet. On November 20, 2012, Respondent filed
its second amendment to its application and included an affida-
vit signed by Ritchie, asserting that Respondent had no affili-
ates or subsidiaries and had not had any affiliates or subsidiar-
ies in the past. Thus, it was only after November 20, 2012, that
Respondent provided all of the necessary documentation re-
quired under Section 102.148; a period of 53 days after the
Board’s decision and 23 days after the deadline provided under
the Board’s Rules. The Board’s Rules and Regulations contain
no provisions that allow for an applicant to amend an applica-
tion for an award of attorney’s fees and expenses.
While I have no doubt that the balance sheet was inadvert-
ently omitted from the initial application on October 26, 2012,
the fact remains that it took Respondent until November 20,
2012 to submit a full and complete application that met the
requirements of Section 102.148. Furthermore, Respondent
additionally amended its EAJA application by augmenting its
claim and submitting an additional exhibit on December 7,
2012. Thus, I don’t find that Respondent has a legitimate stand-
ing to enforce the time limits of the Board’s Rules with respect
to the Acting General Counsel when it has clearly gone beyond
the time parameters of the Rules to enhance its original applica-
tion.
Interestingly, counsel for the Acting General Counsel sub-
mits that because the proceedings were stayed by the Union’s
motion for reconsideration, counsel could not reasonably re-
spond to Respondent’s amendments to its EAJA application
until the Board ruled on the Union’s motion for reconsidera-
tion. I note, however, that 102.148 also provides that “Proceed-
ings for the award of fees, but not the time limit of this section
for filing an application for an award, shall be stayed pending
final disposition of the adversary adjudication in the event any
person seeks reconsideration or review of the decision that
proceedings.” Thus, the wording of this section implies that
only the initial application for fees and expenses is exempt
from the stay that is triggered by a request for reconsideration.
Although counsel for the Acting General Counsel argues that a
stay was in place as of November 9, 2012, counsel nevertheless
filed its motion to dismiss Respondent’s EAJA application on
November 16, 2012.
In a written submission1 on April 25, 2013, Respondent ar-
gues that the counsel for the Acting General Counsel filed its
motion to dismiss on November 16, 2012, and during the pen-
dency of the stay triggered by the Union’s November 9, 2012
motion for reconsideration. Further Respondent argues that
because Section 102.149(a) does not contemplate any right to

1 The request for the submission was granted by me in a conference
call with the parties on April 15, 2013.
supplement a reply in support of a motion to dismiss, the Act-
ing General Counsel’s reply brief in support of his motion to
dismiss should be stricken in addition to the dismissal of the
Acting General Counsel’s motion to dismiss Respondent’s
EAJA application. Respondent does not, however, address the
fact that it filed three amendments to its EAJA application fol-
lowing the commencement of the stay on November 9, 2012.
As discussed above, neither party has fully complied with
the full provisions of the Board’s Rules and Regulations with
respect to time limits for the EAJA application and the requisite
responses. Based on the parties’ various arguments concerning
the applicable sections of the Board’s Rules and Regulations,
there is certainly a justifiable basis to strictly limit the pleadings
requested by the parties. Although both parties have arguably
exceeded the parameters contemplated by the Board’s Rules
and Regulations, no benefit would be served in applying the
Rules in an arbitrarily strict sense. Accordingly, in the interest
of fairness to both the Respondent and the Acting General
Counsel, and in order to allow the parties an opportunity to
make a full and complete record on this issue, I deny Respond-
ent’s motion to strike the Acting General Counsel’s reply brief,
as well as, the Acting General Counsel’s motion to dismiss
Respondent’s motion to strike, and I have fully considered the
Respondent’s entire application despite its fragmented submis-
sion and untimely amendments, as well as, the Acting General
Counsel’s motion to dismiss that was filed on November 16,
2012.
On the entire record, including the briefs and motions filed
by the Acting General Counsel and the Respondent, I hereby
grant the Acting General Counsel’s motion to dismiss the Re-
spondent’s application for attorneys’ fees and costs for the rea-
sons set forth below.
B. Procedural and Factual History
On January 31, 2011, the Regional Director for Region 15 of
the Board issued a complaint alleging that the Road Sprinkler
Fitters Local Union No. 669, U.A., AFL–CIO (Union) had been
the exclusive collective-bargaining representative for an identi-
fied group of Respondent’s employees (the unit) since July 8,
2008. The complaint alleged that based on the Union’s 9(a)
status, the Respondent had failed to continue in effect all the
terms and conditions of an agreement; effective from April 1,
2007, to March 31, 2010. The complaint further alleged that
Respondent did so without prior notice to the Union and with-
out affording the Union an opportunity to bargain with Re-
spondent with respect to such conduct and/or the effects of the
conduct. The complaint also alleged that since about April 1,
2010, Respondent failed and refused to recognize and bargain
with the Union as the exclusive collective-bargaining repre-
sentative of the unit employees and on or about July 13, 2010,
Respondent withdrew its recognition of the Union as the exclu-
sive collective-bargaining representative of the unit. Finally,2

2 On the last day of the hearing in this matter, the Acting General
Counsel moved to amend the complaint to further allege that since May
2009, the Respondent had engaged in direct dealing with the employ-
ees. I reserved ruling on the motion, giving the parties an opportunity
to argue their positions in the posthearing briefs. In its posthearing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
the complaint alleged that since on or about May 5, 2010, the
Respondent failed and refused to furnish the Union certain
information that is necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-bargaining
representative of the unit.
1. A summary of the underlying facts
Russell Ritchie (Ritchie) is the owner and president of Aus-
tin Fire Equipment, LLC (Respondent). In June 2007, Ritchie
entered into a one-job project agreement with the Union for
work to be performed at a jobsite that was approximately 2 to 3
hours away from Respondent’s facility. This first-ever agree-
ment with the Union became effective on June 11, 2007, and
was established to remain in effect through the completion of
the project that was estimated to last approximately 6 months.
During the term of the agreement, Respondent agreed to be
bound by the 2007–2010 collective-bargaining agreement be-
tween National Fire Sprinkler Association, Inc. and the Union.
There was no evidence presented that this agreement was a 9(a)
agreement3 or anything other than a one-job agreement.
In May 2008, Respondent was awarded a contract with Vale-
ro Refinery. In order to perform the job, Ritchie needed at least
12 sprinkler fitters for a period of 6 months. Ritchie testified
that he told the Union that he would be willing to sign a 1-year
agreement in order to obtain referral of the necessary sprinkler
fitters. When Ritchie met with the union representatives, he
was presented with the National Fire Sprinkler Association
(NFSA) agreement that was in effect from April 1, 2007, to
March 31, 2010. Ritchie testified that although he reminded
the Union that he had discussed only a 1-year agreement, the
union representatives told him that his agreement with the Un-
ion would have to continue through the entire period designated
in the NFSA agreement.
On July 8, 2008, Ritchie signed the two-page signatory
agreement, agreeing to be bound by all the terms and conditions
of the NFSA agreement. At the time that Ritchie signed the
signatory agreement, Ritchie also signed a document entitled
“Acknowledgment of the Representative Status of Road Sprin-
kler Fitters Local Union No. 669, U.A. AFL–CIO” (Acknowl-
edgment). The document included the following wording:
The Employer executing this document below has, on the ba-
sis of objective and reliable information, confirmed that a
clear majority of the sprinkler fitters in its employ are mem-
bers of, and are represented by Road Sprinklers Fitters Local
Union No. 669, U.A., AFL–CIO, for the purposes of collec-
tive bargaining. The Employer therefore unconditionally
acknowledges and confirms that Local Union 669 is the ex-
clusive bargaining representative of its sprinkler fitter em-
ployees pursuant To Section 9(a) of the National Labor Rela-
tions Board.
At the time that Ritchie signed the Acknowledgment, the Union

brief, the Acting General Counsel withdrew its motion to amend the
complaint. The motion was granted.
3 Under Sec. 9(a) and Sec. 8(a)(5) of the Act, employers are obligat-
ed to bargain only with unions that have been “designated or selected
for the purposes of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes.” 29 U.S.C. §159.
did not present or offer to present evidence to Respondent that
it represented a majority of Respondent’s sprinkler fitters.
Prior to May 2009, Respondent followed the terms of the
contract for all the sprinkler fitters employed by the Respond-
ent. Thereafter, Respondent did not follow all of the terms of
the agreement.
2. Acting General Counsel’s complaint
On January 31, 2011, the Regional Director for Region 15 of
the National Labor Relations Board (the Board) issued a com-
plaint against Respondent. The complaint alleged that since
July 8, 2008, the Union had been the exclusive collective- bar-
gaining representative for Respondent’s sprinkler fitters under
Section 9(a) of the Act and that since February 4, 2010, the
Respondent failed to continue in effect all of the terms and
conditions of the 2007–2010 NFSA agreement. The complaint
further alleged that since April 1, 2010, Respondent failed and
refused to recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of its employees and
that on or about July 13, 2010, Respondent withdrew its recog-
nition of the Union as the exclusive collective-bargaining rep-
resentative of its employees. Finally, the complaint alleged that
since about May 5, 2010, the Respondent failed and refused to
furnish the Union certain information that is necessary for, and
relevant to, the Union’s performance of its duties as the exclu-
sive collective-bargaining representative of the bargaining unit
employees.
C. Prevailing Legal Authority Concerning 9(a)
and 8(f) Agreements
As an 8(f) agreement is not established by a showing of ma-
jority support, there is no presumption of majority status for the
signatory union. J & R Tile, 291 NLRB 1034, 1036 (1988). In
its decision in John Deklewa & Sons, 282 NLRB 1375, 1377
(1987), enfd. sub nom. Ironworkers Local 3 v. NLRB, 843 F.2d
770 (3d Cir. 1988), the Board held that parties entering into an
8(f) agreement will be required by virtue of Section 8(a)(5) and
Section 8(b)(3) to comply with the agreement during its term,
in the absence of a Board-conducted election where employees
vote to change or reject their bargaining representative. Fol-
lowing the expiration of an 8(f) agreement, however, the union
enjoys no presumption of majority status and either party may
repudiate the 8(f) bargaining relationship. Id at 1377–1378.
Thus, the distinction between a union’s representative status
under Section 8(f) and under Section 9(a) is significant because
an 8(f) relationship may be lawfully terminated by either the
union or the employer upon the expiration of their collective-
bargaining agreement. Id at 1386–1387. By contrast, a 9(a)
relationship and the derivative obligation to bargain continues
after the contract expires, unless and until the union is shown to
have lost majority support. Levitz Furniture Co. of the Pacific,
333 NLRB 717 (2001).
As a general rule, the Board presumes that construction in-
dustry bargaining relationships are governed by Section 8(f) of
the Act and that the union and the employer intended their rela-
tionship to be governed by Section 8(f) rather than Section 9(a).
Deklewa at 1386–1387. In Deklewa, the Board explained that a
9(a) relationship could be proven by a showing that a construc-
tion industry employer voluntarily recognized a union “based
AUSTIN FIRE EQUIPMENT, LLC 1185
on a clear showing of majority support among the unit employ-
ees, e.g., a valid card majority.” Id at 1387 fn. 53. In a later
decision in J&R Tile, 291 NLRB 1034, 1036 (1988), the Board
went on to explain that to establish voluntary recognition, there
must be positive evidence that the union unequivocally de-
manded recognition as the employees’ 9(a) representative and
that the employer unequivocally accepted it as such.
In recent years, however, the Board has also held that volun-
tary recognition under Section 9(a) may also be established
solely by the terms of the collective-bargaining agreement that
meets certain minimum requirements. In Staunton Fuel &
Material, 335 NLRB 717, 719–720 (2001), the Board held that
a recognition agreement or contract provision will be inde-
pendently sufficient to establish a union’s 9(a) representation
status where the language unequivocally indicates that (1) the
union requested recognition as the majority or 9(a) representa-
tive of the unit employees; (2) the employer recognized the
union as the majority or 9(a) bargaining representative; and (3)
the employer’s recognition was based on the union’s having
shown, or having offered to show, evidence of its majority
support.
In its 2007 decision in Madison Industries, 349 NLRB 1306
(2007), the Board again reviewed the parties’ rights and obliga-
tions under Section 8(f) and Section 9(a) with respect to con-
tract language. The Board held that in determining whether the
presumption of an 8(f) status has been rebutted, the Board will
first consider whether the agreement, examined in its entirety,
conclusively notifies the parties that a 9(a) relationship is in-
tended. If it does, the presumption of Section 8(f) has been
rebutted. If the parties’ agreement does not do so, the Board
considers any relevant extrinsic evidence bearing on the par-
ties’ intent as to the nature of their relationship. Id at 1308.
D. The ALJ Decision
The hearing in this matter was conducted in New Orleans,
Louisiana, on June 22 and 23, 2011, and I issued a decision on
November 29, 2011. In support of the issued complaint, the
Acting General Counsel maintained the position that the Ac-
knowledgment language satisfied all the elements of the Staun-
ton Fuel & Material test. Based on the record as a whole, in-
cluding credible testimony, I found that the Respondent entered
into the bargaining agreement with the Union with the intent to
be bound by an 8(f) agreement rather than a 9(a) agreement. I
also found that Respondent unilaterally changed the terms and
conditions of employment of its employees during the term of
the collective-bargaining agreement to which Respondent had
agreed to be bound. Thus, I found that Respondent violated
Section 8(a)(5) of the Act by failing to continue in effect all the
terms and conditions of the July 8, 2008 agreement.
Because I found that the Respondent and the Union did not
enter into a 9(a) agreement, I did not find that the Respondent
unlawfully failed to recognize and bargain with the Union after
the expiration of the 2007–2010 agreement. Furthermore, be-
cause there was no bargaining obligation for Respondent be-
yond the expiration of the agreement, I did not find that Re-
spondent unlawfully failed and refused to provide the infor-
mation requested by the Union in May 2010.
E. The Board’s Decision
On September 28, 2012, the Board issued a decision, adopt-
ing my conclusions that the parties’ bargaining relationship was
governed by Section 8(f) rather than Section 9(a) of the Act.
The Board found that the parties’ recognition agreement (Ac-
knowledgment) does not meet the three-part test set forth in
Stanton Fuel & Material (Central Illinois), 335 NLRB 717
(2001), to establish 9(a) status. The Board referenced its con-
temporaneous decision in USA Fire Protection, 358 NLRB
1722 (2012), where the Acknowledgment language also fails to
demonstrate that the respondent’s recognition of the union was
based on majority support among unit employees. The Board
explained that in relying on Staunton Fuel & Material, they had
also found in USA Fire Protection, that language concerning
the employees’ membership and representation by the union,
without more, would not establish the parties’ intent to form a
9(a) relationship. The Board further explained that because the
Union relies only on the Acknowledgment to support its asser-
tion of 9(a) status and does not contend that any other evidence
substantiates its position, they agreed with my recommended
decision that 9(a) status has not been demonstrated and that the
parties’ relationship is governed by Section 8(f). The Board
further adopted my recommended decision that Respondent
violated Section 8(a)(5) and (1) by failing and refusing to con-
tinue in effect all the terms and conditions of the agreement
between the National Fire Sprinkler Association, Inc. and the
Union until the agreement’s expiration.
F. Applicable Legal Standard for Determining EAJA Eligibility
EAJA, as specified in Section 102.143 of the Board’s Rules
and Regulations, provide that a “respondent in an adversary
adjudication who prevails in that proceeding, or in a significant
and discrete substantive portion of that proceeding” and who
otherwise meets certain eligibility requirements relating to net
worth, corporate organization, number of employees, etc. is
eligible to seek reimbursement for certain expenses incurred in
connection with that proceeding. Section 102.144 further clari-
fies that the burden of proof that an award should not be made
to an eligible applicant is on the General Counsel, who may
avoid an award by showing that the General Counsel’s position
in the proceeding was substantially justified. As the Board has
found, the General Counsel must establish that he was substan-
tially justified at each stage of the proceeding including at the
time of the issuance of the complaint, taking the matter through
hearing, and filing exceptions (if any) to the judge’s decision.
Glesby Wholesale, 340 NLRB 1059, 1060 (2003).
In weighing the unique circumstances of each case, a stand-
ard of reasonableness will apply. Abell Engineering & Mfg.,
Inc., 340 NLRB 133, 133 (2003). In defining “substantial justi-
fication,” the Board has explained that it does not mean sub-
stantial probability of prevailing on the merits, and it is not
intended to deter the agency from bringing forward close ques-
tions or new theories of law. The Board has looked to the Su-
preme Court’s definition of “substantial justification” under
EAJA; finding that the justification is to a degree that could
satisfy a reasonable person” or having a “reasonable basis both
in law and fact.” Galloway School Lines, 315 NLRB 473
(1994) citing Pierce v. Underwood, 487 U.S. 552, 565 (1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
In Jansen Distributing Co., 291 NLRB 801 fn. 2 (1988), the
Board adopted this definition for “substantially justified.”
As the Court has noted, an agency’s position is substantially
justified when “reasonable people could differ” on whether the
action should go forward. Pierce v. Underwood at 563–566.
See also Teamsters Local 741, 321 NLRB 886, 889 (1996),
where the Board followed Pierce v. Underwood in finding that
substantially justified would include “justified to a degree that
could satisfy a reasonable person” or “justified if a reasonable
person could think it correct.”
Although the General Counsel may not prevail in litigation,
there is not a presumption that his position was not substantial-
ly justified, nor must it be established that the decision to liti-
gate was based on a substantial probability of prevailing.
Westerman, Inc., 266 NLRB 799 (1983). The General Counsel
may carry its burden of proving that its position was substan-
tially justified “by showing its position advanced ‘a novel but
credible extension or interpretation of the law’.” Timms v. U.S.
742 F. 2d 489, 492 (9th Cir. 1984), quoting Hoang Ha v.
Schweiker, 707 F. 2d 1104, 1106 (9th Cir. 1983).
G. Respondent’s Argument
Citing 5 U.S.C.A. § 504, Respondent asserts that under
EAJA, a prevailing party is entitled to recover reasonable attor-
neys’ fees and other expenses incurred when the government
recovers less than its previous demand from a private party in
formal agency adjudication, unless the government’s position
was “substantially justified” or if special circumstances make
an award unjust. In its application, Respondent asserts that the
General Counsel was not substantially justified in pursuing this
case while a nearly identical case involving the same Union and
acknowledgment language was pending before the Board.
Furthermore, Respondent maintains that Respondent acknowl-
edged in its amended answer prior to hearing that a Section 8(f)
relationship existed, and Respondent offered to settle for the
exact outcome decided by the undersigned and by the Board.
H. Discussion and Analysis
1. Respondent’s eligibility for EAJA relief
a. Respondent’s net worth
Section 102.143 of the Board’s Rules provides that the sole
owner of an unincorporated business who has a net worth of not
more than $7 million, including both personal and business
interests and not more than 500 employees meets the eligibility
criteria for an award. Respondent asserts that at the time that
the complaint issued, Respondent had approximately 78 em-
ployees and its net worth was significantly less than $7 million.
In support of this assertion, Respondent attached a 1-page affi-
davit of its president, Russell Ritchie (Ritchie); stating that
Respondent’s net worth did not exceed $7 million when the
complaint issued on January 31, 2011. In its application, Re-
spondent asserts that a copy of the balance sheet was attached
to Ritchie’s affidavit.
In responding to Respondent’s EAJA application, Acting the
General Counsel asserts that under Sec. 102.147(f) of the
Board’s Rules, an applicant must provide with its application a
detailed exhibit showing the net worth of the applicant and any
affiliates when the adversary adjudicative proceeding was initi-
ated. In his motion to dismiss, the Acting General Counsel
submits that the requisite exhibit must be sufficient to deter-
mine that the applicant qualifies under the standards and that
the Respondent has not provided such an exhibit. In the motion
to dismiss Respondent’s application, the Acting General Coun-
sel asserts that Respondent did not include Respondent’s bal-
ance sheet as claimed and that Respondent’s conclusory state-
ment that its net worth did not exceed $7 million does not qual-
ify as a detailed exhibit as required under Section 102.147 of
the Board’s Rules. The Acting General Counsel asserts that for
Respondent to establish eligibility for an EAJA award, Re-
spondent must submit information consistent with generally
accepted accounting principles, together with an affirmation
that the reported assets and liabilities are complete and accu-
rate.
On November 16, 2012, and after receiving the Acting Gen-
eral Counsel’s motion to dismiss, Respondent filed an amend-
ment to its EAJA application. Respondent acknowledged that
it had inadvertently failed to attach the 2011 balance sheet to its
original application. Respondent attached a 4-page Independ-
ent Accountants’ Review Report dated May 25, 2012. Based
on the analysis of the independent accounting firm and the
detailed report, it is apparent that Respondent has met the
threshold eligibility requirement and has demonstrated that its
net worth does not exceed $7million.
b. Other criteria for eligibility
In his affidavit attached to Respondent’s application for
EAJA fees, Ritchie asserts that Respondent had only 78 em-
ployees at the time the complaint issued. Counsel for the Acting
General Counsel does not dispute Ritchie’s assertion and his
claim is consistent with the evidence presented in the underly-
ing trial. Respondent has further confirmed that it has no affili-
ates. Accordingly, I find that Respondent meets the criteria for
an award as set forth in 102.143.
2. Whether the Acting General Counsel was
substantially justified
Respondent asserts that despite extensive briefing, the legal
issue here was quite simple—whether a 1-page document iden-
tified as the Acknowledgment and signed by Respondent creat-
ed a 9(a) relationship with the Union. Respondent argues that
the Board has found that the Acknowledgement, on its face, did
not and thus the General Counsel was not substantially justified
in pursing this case since, “as a matter of law, the Acknowl-
edgment was incapable of supporting a 9(a) relationship.”
The Acting General Counsel asserts that the “substantially
justified” standard does not raise a presumption that because
the government did not prevail in litigating the case, that its
position in the matter was not substantially justified. The Act-
ing General Counsel submits that the circumstances and the
evidence available to the Acting General Counsel at the various
junctures of the proceeding support a finding that the govern-
ment’s position can be justified even though the Acting General
Counsel did not fully prevail in the case.
In its application, Respondent asserts a number of bases to
support its position that the General Counsel was not justified
in pursuing this case.
AUSTIN FIRE EQUIPMENT, LLC 1187
a. Respondent’s argument concerning the pendency of
a similar case
On June 21, 2010, Administrative Law Judge Michael Mar-
cionese issued a decision in USA Fire Protection.4 On Septem-
ber 28, 2012 and the same day that the Board issued its decision
in the instant case, the Board affirmed Judge Marcionese’s
decision in 358 NLRB 1722 (2012). In adopting the adminis-
trative law judge’s conclusion that the relationship between the
union and the employer was governed by Section 8(f) rather
than Section 9(a) of the Act, the Board found that the language
of their recognition agreement, on which the union exclusively
relied, failed to satisfy the 3-part test set forth in Staunton Fuel
& Material, Inc, 335 NLRB 717 (2001). Specifically, the
Board explained that under Staunton Fuel & Material, the
agreement’s statement that a clear majority of the unit members
are members of, and are represented by the union was insuffi-
cient to show that the employer’s recognition of the union was
based on majority support among the unit employees. As in the
instant case, the Board found that the employer violated the Act
by making unilateral changes in terms and conditions of em-
ployment during the terms of the collective-bargaining agree-
ment.
Respondent argues that the General Counsel was not sub-
stantially justified in pursuing the instant case while USA Fire
Protection; a nearly identical case involving the same Union
and Acknowledgment form, was pending before the Board.
Respondent submits that the administrative law judge’s deci-
sion in USA Fire Protection issued over a month before the
Union filed its charge and the judge’s decision was pending
before the Board over 6 months before the underlying com-
plaint in this case issued. Respondent asserts that in its pre-
hearing and posthearing briefs to me and to the Board, it main-
tained that the judge’s decision in USA Fire Protection sup-
ported its position that Section 8(f) of the Act governed its rela-
tionship with the Union.
Respondent contends that the Acting General Counsel was
not substantially justified in pursuing this case on facially inva-
lid language, especially given that USA Fire Protection was
pending Board review. Furthermore, Respondent suggests that
the Acting General Counsel “could and should have stayed this
proceeding until after the Board issued its decision” in USA
Fire Protection.
In support of its claim that the Acting General Counsel
should have stayed this proceeding until after the Board ruled
in USA Protection Fire, Respondent points to the Board’s find-
ing in this case that the Acknowledgment failed to meet the 3-
part Staunton Fuel & Material test and the Board’s reference to
its related explanation in USA Fire Protection.
I do not find merit to Respondent’s argument that the Acting
General Counsel was required to stay this proceeding until the
Board ruled in USA Fire Protection. The circumstances and
progression of the USA Fire Protection case did not provide
authority for the Acting General Counsel to stay the proceeding
in this case. At the time that the complaint issued in this case,
there was an administrative law judge decision in USA Fire

4 2010 WL 3285412 based on the complaint in Case 10–CA–38074.
Protection that was favorable to the Respondent’s position, and
nothing more. The administrative law judge’s decision was
simply a recommendation to the Board and established no prec-
edent for the Board and served as no authority binding on any
other administrative law judge in dealing with similar circum-
stances.
b. Other factors existing at the time the complaint issued
Counsel for the Acting General Counsel asserts that based on
the recognition language in the Acknowledgement, there was
substantial justification to believe that the Acknowledgement
signed on July 8, 2008, satisfied each element of the test set
forth by the Board in Staunton Fuel & Material. Counsel points
out that in two Board cases decided prior to Staunton Fuel &
Material, the Board found substantially similar recognition
language in an acknowledgement created a 9(a) relationship
with the signatory employers. Triple A Fire Protection, 312
NLRB 1088 (1993); MFP Fire Protection, 318 NLRB 840
(1995). In Triple A Fire Protection, the acknowledgement
language included the wording: “The Employer, executing this
document below has, on the basis of objective and reliable in-
formation, confirmed that a clear majority of the sprinkler fit-
ters in its employ have designated, are members of, and are
represented by, Road Sprinkler Fitters Local Union 669, U.S.,
AFL–CIO, for purposes of collective bargaining. The Employ-
er therefore unconditionally acknowledges and confirms that
Local 669 is the exclusive bargaining representative of its
sprinkler fitter employees pursuant to Section 9(a) of the Na-
tional Labor Relations Act. “The Board found that by execut-
ing the acknowledgement, the employer voluntarily and une-
quivocally granted recognition to the union as a 9(a) representa-
tive. In its decision, the Board added that it would not at that
late date inquire into the union’s showing of majority status.
The identical acknowledgement language was in issue in
MFP Fire Protection; a case decided by the Board in 1995.
The administrative law judge in MFP Fire Protection found
that Triple A Fire Protection was controlling and found that the
acknowledgement language in issue was sufficient to find that
the parties had a 9(a) relationship. The Board adopted the
Judge’s decision without additional comment.
Thus, at the time that the Acting General Counsel issued its
complaint in the instant case, there were two previous Board
cases in which identical language had been found sufficient to
establish a 9(a) relationship between this union and other em-
ployers, even without the union independently proving its ma-
jority status. In its decision in Staunton Fuel & Material, the
Board further clarified that a written agreement will establish a
9(a) relationship if its language unequivocally indicates that the
union requested recognition as majority representative, the
employer recognized the union as majority representative, and
the employer’s recognition was based on the union’s having
shown, or having offered to show, an evidentiary basis of its
majority support. Staunton Fuel & Material, 335 NLRB at
717.
The Acting General Counsel maintains that based on the
recognition language in the Acknowledgment, the General
Counsel was substantially justified in believing that the
Acknowledgement form that Respondent signed satisfied each
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1188
element of the test set forth in Staunton Fuel & Material. Fur-
thermore, the Acting General Counsel argues that the fact that
the Union in this case did not make a showing of majority sup-
port to Respondent concurrent with the signing of the collec-
tive-bargaining agreement did not preclude the Acting General
Counsel from being substantially justified in asserting that there
was a 9(a) relationship. Citing the Board’s decision in H. Y.
Floors & Gambline Painting, 331 NLRB 304 (2000), the Act-
ing General Counsel asserts that to establish voluntary recogni-
tion pursuant to 9(a) in the construction industry, the Board
requires that the union unequivocally demanded recognition as
the employees’ 9(a) representative, and that the employer une-
quivocally accepted it as such. Thus, the General Counsel as-
serts that because the Acknowledgement language could be
read in isolation and was not ambiguous, the General Counsel
was substantially justified in asserting that the Acknowledge-
ment met the 3-part test of Stanton Fuel & Material.
c. Credibility and extrinsic evidence
In its argument that the Acting General Counsel was not sub-
stantially justified in seeking to establish a 9(a) relationship,
Respondent argues that there were no credibility determinations
for the ALJ to decide. Specifically, Respondent argues that
there were no credibility conflicts here that required judicial
resolution and that if credited, would constitute a prima facie
case and thereby have a reasonable basis in law and fact. Re-
spondent’s argument is without merit. For the reasons dis-
cussed below, credibility was very much a factor in my reach-
ing a conclusion that the parties did not enter into a 9(a) rela-
tionship on July 8, 2008.
Noting the importance of employees’ statutory rights of self-
organization and self-determination, the Board explained in
Madison Industries, 349 NLRB 1306, 1309 (2007), that extant
Board law requires proof that an agreement “unequivocally
demonstrates that the parties intended to be governed by Sec-
tion 9(a) before Section 9(a) may be found on the basis of con-
tractual language. Id at 1309. In its decision in Madison Indus-
tries, the Board found that the judge erred by limiting his anal-
ysis solely to the language of a contractual provision to find
that the parties had established a 9(a) relationship. The Board
pointed out that Staunton Fuel & Material requires an examina-
tion of the parties’ entire agreement to determine whether a 9(a)
relationship was intended.
As the Board pointed out in Staunton Fuel & Material,
above at 720 fn. 15, it will continue to consider relevant extrin-
sic evidence bearing on the parties’ intent in cases where the
contract’s language is not independently dispositive. Further-
more, the Board has continued to consider extrinsic evidence of
intent when the intent of the parties cannot be determined sole-
ly by the examination of the agreement in its entirety. J. T.
Thorpe & Son, Inc., 356 NLRB 822, 824 (2011); Allied Me-
chanical Services, 351 NLRB 79, 82 (2007).
In the instant case, Ritchie testified that when he contacted
the Union, he only wanted to enter into an agreement for one
year. He contended that although he agreed that he would
commit to the NFSA contract that was scheduled for another
year and 8 months, he did so because no one told him that the
contract was binding beyond the contract period. He also testi-
fied that while he did not understand the meaning of the
Acknowledgement, he signed it on July 8, 2008, because the
union representatives told him that it was required. Union
Business Manager William Puhalla confirmed that when the
union representatives met with Ritchie on July 8, 2008, Ritchie
told them that he had expected to sign an agreement for only a
year’s period of time. Union Business Agent Tony Cacioppo
also testified that in all four meetings with Ritchie in May,
June, and July 2010, Ritchie continued to mention that he
would be interested in a project-by-project agreement with the
Union.
In my decision that issued on November 29, 2011, I made
the following conclusions:
I find Ritchie’s testimony credible with respect to the circum-
stances of his signing the July 8, 2008 agreement. Aside from
the fact that Ritchie’s testimony was consistent and plausible,
it was essentially uncontroverted. It is apparent from his tes-
timony that he sought out the Union to obtain skilled sprinkler
fitters to work on the large project that was to begin in 2008.
His knowledge of collective-bargaining agreements with the
Union was limited to the prior 8(f) agreement that he signed
the previous year.
I found no credible evidence that Ritchie ever discussed with
the Union the possibility of his entering into an agreement that
would bind him as a 9(a) employer. Based on Ritchie’s testi-
mony as well as that of Union Representative Puhalla, I found
that Ritchie continued to seek only a project-by-project agree-
ment even when he met with the Union in 2010.
In crediting Ritchie, I considered all of the testimony con-
cerning the events preceding July 8, 2008, as well as the cir-
cumstances of the signing of the agreement on July 8, 2008. I
considered the fact that no union representative testified that the
Acknowledgement was ever explained to Ritchie or that he was
told anything about the significance or the meaning of 9(a)
recognition and acknowledgement.
I also found it significant that at the time that Ritchie signed
the Acknowledgement, the Union did not present or offer to
present evidence to Respondent that it represented a majority of
Respondent’s sprinkler fitters. The Union did, however, ex-
plain that all 14 existing sprinkler fitters would have to be cov-
ered by the agreement. Based on that explanation, Ritchie met
with his employees and told them that they needed to join the
Union if they wanted to continue employment with Respond-
ent. Ritchie credibly testified that all of his employees with the
exception of one were against joining the Union. Ritchie told
them to trust him because it would be a good move for the
Company. Thus, when Ritchie signed the agreement, he knew
that the Union did not represent a majority of his employees
and the Acknowledgement language was not only equivocal,
but completely false. Thus, Ritchie signed a document that he
knew to be facially false.
Accordingly, in crediting Ritchie’s testimony, and after con-
sidering the entire record testimony, I found that Respondent
entered into the agreement with the Union with the intent to be
bound by an 8(f) agreement. I found that there was no record
evidence that supported a finding that Ritchie had any intent to
enter into a 9(a) relationship with the Union. The only docu-
AUSTIN FIRE EQUIPMENT, LLC 1189
ment that referred to a 9(a) relationship was the Acknowledge-
ment that was signed without discussion or explanation and
which was fallacious on its face.
As the Board noted in David Allen Co., 335 NLRB 783
(2001):
Credibility issues which are not subject to resolution by the
General Counsel in the investigative stage of proceeding on
the basis of documents or other objective evidence are, in the
first instance, the exclusive province of the administrative law
judge. Accordingly, where the General Counsel is compelled
by the existence of a substantial credibility issue to pursue lit-
igation, and thereafter presents evidence which, if credited,
would constitute a prima facie case, the General Counsel’s
case has a reasonable basis in law and fact and is substantially
justified.
In a very early decision concerning eligibility for EAJA ex-
penses, the Board noted that it was immaterial that the General
Counsel may not have established a prima facie case of a viola-
tion. The Board went on to explain that where the General
Counsel presents evidence which, if credited by the fact finder,
would constitute a prima facie case of unlawful conduct, the
General Counsel’s position has been deemed to be substantially
justified within the meaning of 102.144(a). Barrett’s Interiors,
272 NLRB 527, 528 (1984).
Had I not credited Ritchie’s testimony, I may have conclud-
ed that the total record evidence supported a finding that Richie
entered into the agreement with the Union with the intention
and full understanding that he was initiating a 9(a) relationship
with all of the requisite obligations and duties. Because credi-
bility and extrinsic evidence were so significant in this case, the
Acting General Counsel had a reasonable basis in law and fact
and the General Counsel was substantially justified in not only
issuing a complaint in this matter, but also in pursuing the
complaint allegations throughout these proceedings.
d. Whether the General Counsel was substantially justified in
rejecting the Respondent’s settlement offer
Respondent contends that it made numerous attempts to set-
tle this case prior to hearing on the basis of an 8(f) relationship,
but the Acting General Counsel refused to consider a settlement
short of the Respondent recognizing the Union in a 9(a) rela-
tionship. Respondent asserts that it offered to settle for the
exact outcome decided by the ALJ and the Board. Respondent
contends that its offer to settle should have been accepted by
the Acting General Counsel and that the Acting General Coun-
sel’s refusal to even consider the Respondent’s offer to settle
consistent with the 8(f) result reached by the ALJ and affirmed
by the Board was not substantially justified. In support of this
assertion Respondent cites the Board’s decision in Charles H.
McCauley Associates, Inc., 269 NLRB 791 (1984). I note,
however, that in Charles H. McCauley, the Board affirmed the
judge’s decision in finding that the respondent’s application for
an award of fees under EAJA should be dismissed because the
General Counsel’s case was reasonably grounded in fact and
law and was substantially justified. In this case, the Fifth Cir-
cuit Court of Appeals on appeal agreed with the Board that the
respondent unlawfully terminated an employee. In a remand,
the Court directed the Board to ascertain whether the respond-
ent had made an unconditional offer of reinstatement and
whether such offer had been rejected by the employee. In a
second hearing, the judge discredited the employee’s testimony
and found that the respondent had offered the employee uncon-
ditional reinstatement. The Board, in ruling on the EAJA issue,
noted that while the General Counsel’s position at the second
hearing was rejected, the Board agreed with the judge that the
General Counsel properly pursued this matter to a second hear-
ing “because the General Counsel cannot himself resolve credi-
bility issues.”
Thus, it would appear that Charles H. McCauley lends sup-
port to the Acting General Counsel’s rejection of Respondent’s
offer of settlement prior to the instant hearing. To have accept-
ed Respondent’s offer to settle with a remedy based on only an
8(f) agreement, the Acting General Counsel would have had to
make a credibility determination that Ritchie signed the
Acknowledgement with only the intent to be bound to an 8(f)
bargaining agreement. The Acting General Counsel could not
have made that credibility determination any better in the in-
stant case than the General Counsel could have done so in
Charles H. McCauley or any other case in which credibility is a
factor in determining whether there is a violation of the Act.
In a more recent decision involving the claim for fees under
EAJA, the Board noted that it was clearly the judge’s crediting
of witnesses and not the General Counsel’s failure to state a
prima facie case that led to the judge dismissing the complaint.
Tim Foley Plumbing Service, 337 NLRB 328, 329 (2001).
In contrast to Respondent’s arguments concerning its offer to
settle, counsel for the Acting General Counsel maintains that
throughout the entire investigative phase of the unfair labor
practice charge, in its answer to the complaint, in its pretrial
brief to ALJ, at the trial, and in its posttrial briefs, Respondent
argued that in May 2009, it repudiated the collective-bargaining
agreement and did not have a 8(f) relationship with the Union
after May 2009. The Acting General Counsel further maintains
that Respondent never made a settlement offer in writing to the
Acting General Counsel.
Inasmuch as I have found that the Acting General Counsel
was substantially justified in rejecting a settlement offer based
solely on an 8(f) agreement, there is no need to address the
nature or extent to which any such offer was made by the Re-
spondent.
CONCLUSIONS OF LAW
1. The Acting General Counsel has met his burden of estab-
lishing that his position during all stages of this proceeding was
substantially justified on the basis of the administrative record
as a whole.
2. In view of my conclusion that the Acting General Coun-
sel’s position was substantially justified with regard to the
complaint allegation regarding the existence of a 9(a) relation-
ship, I need not decide whether the Respondent’s alleged fee
amounts are excessive, improper, or lacking sufficient specifici-
ty as asserted by the Acting General Counsel in his motion to
dismiss.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
On these findings and this conclusions of law, and on the en-
tire record, I issue the following recommended5

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended order here 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 purposes.
ORDER
IT IS ORDERED that the application for fees and expenses filed
by Austin Fire Equipment, LLC, be and it hereby is dismissed.