R & K Caterers, Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1985

277 N.L.R.B. 260 (N.L.R.B. 1985)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R & K Caterers, Inc. and Local Union 274, a/w
Hotel Employees and Restaurant Employees
International Union, AFL-CIO. Case 4-CA-
13726(E)
1 November 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 May 1985 Administrative Law Judge John
H. West issued the attached supplemental decision.
The Applicant filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
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, i and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the application is denied.
1 We find that the General Counsel was "substantially justified" under
the Equal Access to Justice Act, as amended, in issuing and prosecuting
the unfair labor practice complaint in this proceeding. We believe that
Congress, in amending the Act, did not alter, but merely clarified, the
definition of "substantially justified," which means more than "mere rea-
sonableness " H R Rep 99-120 at 9 (1985).
SUPPLEMENTAL DECISION
(Equal Access to Justice Act)
JOHN H. WEST, Administrative Law Judge . By order
entered 17 January 1985 , pursuant to Section 102.148(b)
of the Rules and Regulations of the National Labor Rela-
tions Board (Board), Respondent 's application for award
of attorney fees and expenses' in the above -entitled
matter was referred to me by the Board for appropriate
action.
My 27 April 1984 decision dismissing the complaint
was adopted by the Board by Order dated 14 December
1984.2
The above-described application , filed 10 January
1985, seeks attorney fees and expenses in the amount of
1 Included was a motion to withhold information The submission was
made pursuant to the Equal Access to Justice Act, Pub L 96-481, 94
Stat 2325 ( 1980), and Sec 102 143 of the Board 's Rules and Regulations.
2 The Board concluded that in light of its decision to dismiss the com-
plaint it was unnecessary to pass on Respondent 's exception to my refusal
to reach the contention that the recognition clause in the proposed con-
tract was unlawful under Sec 8 (e) of the National Labor Relations Act
(Act)
$12,981.13.3 Also, as noted supra, Applicant filed a
motion to withhold from public disclosure information
regarding its net worth contending that to make this fi-
nancial information, which was submitted in a sealed en-
velope, available to public disclosure would adversely
impact Applicant's bargaining position in negotiations
with the Union and would adversely affect Applicant's
competitive relationship with other kosher caterers.
The General Counsel filed an opposition to the motion
to withhold information from public disclosure contend-
ing that the motion should be denied since Respondent
Applicant fails to advance any extraordinary reasons
why information regarding its assets, net worth, and li-
abilities, should not be disclosed, and Respondent's situa-
tion is not so unique as to warrant withholding informa-
tion.
Also, the General Counsel filed a motion to dismiss
the application for attorney fees and expenses contending
that Respondent has not established its eligibility for an
award in that its application fails to state whether there
are affiliates and subsidiaries; that Respondent seeks to
recover attorney fees in excess of the amount specified in
the Rules which specifically state that "no amount for at-
torney fees under these rules may exceed $75 per hour";
and that the General Counsel's position was substantially
justified in that if the credibility resolutions had favored
the General Counsel, it would follow, that Respondent
violated the Act in refusing to execute the involved writ-
ten contract.4
Applicant then filed a response to the above-described
motion to dismiss, and also Applicant filed a motion to
strike the General Counsel's opposition to withhold in-
formation from public disclosure.5 In the latter, Appli-
cant contends that the Board's Rules and Regulations do
not permit such a response from the General Counsel;
that "[c]learly, the Rules do not require that an applicant
show `extraordinary reasons' for the requested nondisclo-
sure; nor should disclosure be mandated in all but
`unique' situations"; and that
[t]o require an applicant to show "extraordinary" or
"unique" circumstances to keep his financial affairs
from being made public would be an extreme disin-
centive to a small business in a highly competitive
market to file an action under the EAJA, and thus
would run afoul of the congressional intent to en-
courage actions when agencies take unreasonable
positions.
In the former, Applicant states that "it has fewer than
500 employees and that at `all times material herein Ap-
plicant's net worth including any affiliated organizations
did not exceed $5,000,000."' (Emphasis in original.) Ad-
ditionally, Applicant indicates that if more detailed infor-
mation is necessary regarding affiliates or subsidiaries, it
will provide the requested information. Regarding the at-
3 The attorney fees were figured at a cost of $80 an hour
4 The General Counsel specifically preserves its right to file a more
detailed answer if its motion to dismiss is denied.
5 Upon request of counsel for the Applicant, the time for filing a re-
sponse was extended to March 18, 1985
277 NLRB No. 2
R & K CATERERS 261
torney's hourly fee, Applicant indicates that it would not
resist a $75 per hour award, and that this is not a proper
basis for a motion to dismiss the application. And with
respect to whether the General Counsel 's position was
substantially justified, Applicant contends that the Gen-
eral Counsel had not proved that its position was sub-
stantially justified in law and in fact in that the credibil-
ity issue of whether there was a meeting of the minds
was not crucial nor did the case turn on its resolution for
the contract was unlawful on its face and the interpreta-
tion the Union was pressing was also unlawful.
The Equal Access to Justice Act provides for an
award of fees and expenses to eligible parties who pre-
vail in litigation before administration agencies , unless
the government can establish that its position in the liti-
gation was "substantially justified." The Act nowhere
defines that term. The Act's legislative history, however,
establishes that the standard "is essentially one of reason-
ableness" and not to be equated with "a substantial prob-
ability of prevailing." S. Rep. 96-253, 96th Cong., 1st
Sess. 6-7 (1979); H.R. Rep. 96-1418, 96th Cong., 2d Sess.
10-11 (1980).
To decide this case it was necessary to resolve credi-
bility issues regarding whether in fact there was a con-
sciously arrived at understanding. As noted supra, in
view of those resolutions it was not necessary to treat
the matter of whether the recognition clause in the pro-
posed contract is unlawful under Section 8(e) of the Act.
Whether the proposed contract is unlawful is a substan-
tial question in that article I of the proposed contract
read in its entirety does not appear to present a matter of
law susceptible to resolution by the General Counsel
without a hearing. The position taken by the General
Counsel was not unreasonable. Therefore, in my opinion
the General Counsel was substantially justified in going
forward with this matters
ORDER?
IT IS ORDERED that the Application be, and it is
hereby, dismissed.
6 In view of this determination it is unnecessary to rule on Applicant's
above-described motion.
7 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.