R. C. Siebert, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1985

277 N.L.R.B. 599 (N.L.R.B. 1985)

R. C. SIEBERT, INC.
R. C. Siebert , Inc, and New York State Pipeline Ju-
risdiction, Local 802. Case 3-CA-11771
20 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 17 January 1985 Administrative Law Judge
D. Barry Morris issued the attached supplemental
decision . The Applicant filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief and cross -exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge ' s rulings, findings, and
conclusions ' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the application of the Ap-
plicant, R. C. Siebert, Inc., Rochester, New York,
for attorney's fees and expenses under the Equal
Access to Justice Act is denied.
I In adopting the judge's decision that the Applicant was not a prevail-
ing party entitled to an award of attorney's fees and expenses under the
Equal Access to Justice Act, 5 U S.C § 504 (1982), as amended by Pub
L. 99-80, 99 Stat 183 (1985), we do not believe that our decision is at
odds with Congress' intent, expressed in H.R Rep 99-120 at 13 and 18
fn 26 (1985), to award attorney's fees and expenses to a prevailing party
in a settlement
Richard L. DePropspero, Esq., for the General Counsel.
Carl R. Krause, Esq. (Harris, Beach, Wilcox, Rubin and
Levey), of Rochester, New York, for the Applicant.
SUPPLEMENTAL, DECISION ON
APPLICATIONS FOR AWARD OF
ATTORNEYS' FEES AND EXPENSES
D. BARRY MORRIS, Administrative Law Judge. On
August 18, 1983, New York State Pipeline Jurisdiction,
Local 802 (Union) filed an unfair labor practice charge,
alleging that R. C. Siebert, Inc. (Applicant) had violated
certain provisions of the National Labor Relations Act
(the Act). On September 30, 1983, the Regional Director
for Region 3 issued a complaint alleging that the Appli-
cant refused to baragin collectively with the Union, in
violation of Section 8(a)(1) and (5) of the Act. Applicant
filed an answer denying the commission of the alleged
unfair labor practices. A hearing commenced before me
599
on January 16, 1984 ,' but was adjourned prior to the
taking of any testimony.
On August 15 Applicant filed a petition for an award
of attorneys' fees and expenses pursuant to the Equal
Access to Justice Act (EAJA), Pub. L. 96-481 , 94 Stat.
2325 and Section 102.143 of the Board 's Rules and Regu-
lations. On August 16 the Board referred the petition to
me for appropriate action . On September 7 the General
Counsel moved to dismiss the petition on five grounds:
(1) the petition was not timely filed with the Board; (2)
the Applicant is not a "prevailing party" within the
meaning of EAJA; (3) the Applicant did not prevail with
respect to a "significant and discrete substantive portion"
of the case; (4) "special circumstances" make the award
sought unjust; and (5) fees and expenses claimed for
work performed prior to issuance of the complaint are
not recoverable under EAJA. On September 25 Appli-
cant filed a memorandum in opposition to the General
Counsel's motion.2
For the reasons set forth below I find that Appplicant
filed the petition in a timely fashion . Nevertheless, it may
not recover fees and expenses for it was not the prevail-
ing party nor did it prevail with respect to a significant
and discrete substantive portion of the case. Therefore, I
conclude that the General Counsel 's motion to dismiss
should be granted.
A. The Petition Was Timely Filed
Section 102.148 of the Board's Rules provides that an
application may be filed no later than :30 days after the
entry of the Board's final order in the proceeding. In this
case Applicant filed its petition within 30 days after the
entry of my order of July 17 closing the hearing and dis-
missing the complaint. The General Counsel argues that
Applicant should have filed its application within 30
days of the order of March 6 in which the General
Counsel's motion to amend the complaint was granted,
the settlement agreement was approved, and the hearing
was adjourned sine die, pending compliance.
The Board's Rules provide that an application may be
filed "after entry of the final order establishing that the
applicant has prevailed in an adversary adjudication pro-
ceeding or in a significant and discrete substantive por-
tion of that proceeding." I believe that my order of
March 6 cannot be considered "final" inasmuch as in
that order I adjourned the hearing sine die , pending
compliance. It was not until July 17 that I issued a final
order in which the hearing was closed and the complaint
was dismissed. See Columbia Mfg. Corp., 265 NLRB 109
(1982), affd. 715 F.2d 1409 (9th Cir. 1983). Accordingly,
I conclude that the petition was timely filed.
B. The Applicant is Not a Prevailing Parry
Paragraph IX(a) of the complaint alleges that the Ap-
plicant "unilaterally changed the rate of pay and fringe
benefit contributions of the Unit." Paragraph IX(b) al-
I All dates refer to 1984 unless otherwise stated.
2 In addition, the General Counsel submitted a letter dated December
13, and counsel for Applicant submitted a letter in reply dated . January 2,
1985, which have been duly considered.
277 NLRB No. 72
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leges that the Applicant has failed and refused to make
payments into the "appropriate fringe benefit funds." As
part of the settlement the General Counsel agreed to
withdraw the allegation contained in paragraph IX(b) of
the complaint and the Applicant agreed to post a notice
and abide by its terms. The notice provides that Appli-
cant will not refuse to bargain collectively with the
Union and will not make any unilateral changes with re-
spect to wages, hours, or other terms or conditions of
employment, without first consulting with the Union and
without giving the Union an opportunity to bargin con-
cerning these changes. The remedies provided for in the
settlement agreement are substantially the same as those
traditionally ordered by the Board for similar violations.
In Carthage Heating Co., 273 NLRB 120 (1984), the
Board affirmed a decision which found an applicant not
to be a "prevailing party," after a settlement agreement
was entered into. In that case Judge Schlesinger stated
(at 122-123):
[T]he approval of the settlement and dismissal of
the complaint for those who are aware of the work-
ings and thinking of the Board, are not admissions
that the Applicant was correct all along and that its
defenses to the unfair labor practice complaint were
legally justified. Rather, in the broader view, the
dismissal represents not a decision on the merits but
an encouragement of the process of private settle-
ment of disputes through collective bargaining and
without governmental interference.
In the circumstances of this case I believe that the Ap-
plicant cannot show that it prevailed in the underlying
proceeding. Rather, the Applicant acknowledged the
Union as the representative of its employees, agreed not
to refuse to bargain collectively with the Union, and fur-
ther agreed not to make any unilateral changes with re-
spect to the employees' wages, hours, or other terms or
conditions of employment, without giving the Union an
opportunity to bargain concerning these changes. Had
the Applicant prevailed, it would not have been required
to post a notice with terms essentially the same as that
required by the Board where the Board has found a vio-
lation. In any settlement each party wins some and losses
some. As stated in Carthage Heating, supra at 123, "in the
present posture, neither won nor lost, but clearly a prime
purpose of the Act, the promotion of collective bargain-
ing, was well served."
For the foregoing reasons, I conclude that the Appli-
cant is not a prevailing party within the meaning of
EAJA.
C. Applicant Did Not Prevail in a Significant and
Discrete Substantive Portion of the Proceeding
Section 102.144 of the Board's Rules provides that "an
eligible applicant may receive an award for fees and ex-
penses incurred in connection with an adversary adjudi-
cation or in connection with a significant and discrete
substantive portion of that proceeding." Applicant argues
that it prevailed with respect to "a significant and dis-
crete substantive portion" of the case when the General
Counsel moved to withdraw paragraph IX(b) of the
complaint.
In examining paragraphs IX(a) and (b) of the com-
plaint it does not appear that paragraph IX(b) constitutes
a "discrete" portion of the proceeding. Both subpara-
graphs allege closely interrelated violations of Section
8(a)(5) of the Act and both subparagraphs allege unilater-
al changes affecting unit employees made by the Appli-
cant since June 26, 1983.
In Temp Tech Industries, 266 NLRB 730 (1983), the
Board affirmed a supplemental decision in which the
General Counsel's motion to dismiss an EAJA applica-
tion was granted. In granting the motion the judge stated
(at 731):
Both allegations were based on events in a single
meeting. It is difficult to believe that the costs of
litigation were significantly increased, if at all, by
the allegations of two violations rather than one
during this meeting... .
It appears to me that where allegations are closely re-
lated, such allegations are not considered "discrete" or
separate as contemplated by EAJA and the Board's
Rules. While in Temp Tech an 8(a)(3) discharge was
found to constitute a significant and discrete portion of
the proceeding," the various 8(a)(5) allegations were not
considered sufficiently discrete to warrant recovery
under EAJA. As in Temp Tech, it is "difficult to believe
that the costs of litigation were significantly increased, if
at all," by the inclusion of paragraph IX(b). In this con-
nection I note that Applicant's statement of services, at-
tached as Exhibit E to the petition, contains no entries
related specifically to payments into fringe benefit funds
or entries which indicate that the services performed
relate solely to paragraph IX(b) of the complaint. Ac-
cordingly, I conclude that the Applicant has not shown
that it has prevailed in a significant and discrete substan-
tive portion of the proceeding.
D. Other Contentions
The General Counsel contends that "special circum-
stances" make the award sought unjust. In view of my
conclusion that the Applicant is not a prevailing party
nor has it prevailed with respect to a discrete and sub-
stantive portion of the proceeding, I need not reach the
question of whether "special circumstances" exist which
make the award sought unjust. In addition, for the same
reason I need not decide the General Counsel's conten-
tion that certain fees and expenses claimed by Applicant
are not recoverable. I note, however, that Applicant's
claim includes fees for work performed prior to Septem-
ber 30, 1983, the date on which the complaint was
issued. Because no adversary proceeding had com-
menced prior to that date, reimbursement for such ex-
penses is not allowed. Carthage Heating Co., supra at 121.
8 See also Woodvrew Rehabilitation Center, 268 NLRB 1239 (1984),
where an 8(a)(3) discharge was considered a significant and discrete sub-
stantive portion of the proceeding
R C. SIEBERT, INC. 601
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
* 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
ORDER
The General Counsel's motion to dismiss the petition
is granted and the petition of R. C. Siebert, Inc. for an
award of fees and expenses under the Equal Access to
Justice Act is denied.