Meaden Screw Products Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 298 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298
Meaden Screw Products Co. and Brian Freid. Case
13–CA–34483(E)
September 28, 2001
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On November 10, 1998, Administrative Law Judge Wil-
liam G. Kocol issued the attached supplemental decision.1
The General Counsel filed exceptions and supporting
brief, and the Applicant filed a brief in opposition to the
General Counsel’s exceptions.
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, and conclu-
sions only to the extent consistent with this Supplemental
Decision and Order.
A. Background
On August 1, 1997, the judge issued his decision in the
underlying unfair labor practice case involving the Appli-
cant. On May 15, 1998,2 the Board adopted the judge’s
1997 decision and dismissed the complaint in its entirety.3
On June 2, the Applicant filed an application for an award
of attorney’s fees and expenses under the Equal Access to
Justice Act (EAJA), 5 U.S.C. § 504, and Section 102.143
of the Board’s Rules and Regulations. The application
alleged, inter alia, that the General Counsel was not sub-
stantially justified in pursuing the unfair labor practice
case against the Applicant. On June 30, the General
Counsel submitted a motion to dismiss the application and
an alternative motion to strike certain portions of the ap-
plication. In his motion to dismiss, the General Counsel
claimed, inter alia, that his prosecution of the underlying
unfair labor practice case was substantially justified
throughout all phases of the case.
In his Order dated September 8, the judge granted in
part and denied in part the General Counsel’s motions.
The judge found substantial justification for the General
Counsel to have issued and prosecuted the unfair labor
practice complaint against the Applicant, but he found no
substantial justification for either the General Counsel’s
predecisional settlement posture in the underlying case or
the General Counsel’s filing of exceptions to the judge’s
1997 decision.

1 As part of his supplemental decision, the judge incorporated his
findings and conclusions set forth in his prior September 8 Order in this
case, which we discuss more fully infra.
2 All dates are in 1998 unless otherwise indicated.
3 325 NLRB 762.
On October 8, the General Counsel filed an answer,
with attached exhibits, seeking a denial of the Applicant’s
EAJA application. Paragraph V of the answer denies cor-
responding paragraph 5 of the application alleging that the
General Counsel’s position throughout the unfair labor
practice case was not substantially justified. The answer
also includes two affirmative defenses asserting substantial
justification for the General Counsel’s settlement posture
in the underlying unfair labor practice case and the Gen-
eral Counsel’s filing of exceptions to the judge’s 1997
decision. The Applicant filed a reply to the answer.
In his supplemental decision dated November 10, the
judge struck “those portions of the answer that seek to
relitigate the issue of substantial justification and supple-
ment the record.” The judge reaffirmed his September 8
Order, including his findings of no substantial justification
for the General Counsel’s settlement posture and appeal of
the judge’s 1997 decision. The judge partially granted the
application and awarded the Applicant the amount of
$30,909.12, plus any additional allowable fees and ex-
penses that might be incurred in future litigation of this
EAJA case. The judge also indicated that he would have
reached the same result even if he had considered the
General Counsel’s answer in full.
The General Counsel excepts to the judge’s procedural
ruling to strike portions of the October 8 answer and to
the judge’s findings of no substantial justification, which
were initially set forth in the September 8 Order and reaf-
firmed in the judge’s supplemental decision. We find
merit in these exceptions and, for the reasons stated be-
low, reverse the judge’s procedural ruling, consider the
answer in full, find substantial justification in favor of
the General Counsel, and deny the application in toto.
B. Procedural Issue
The judge ruled that the General Counsel was pre-
cluded from “relitigat[ing] the issue of substantial justifi-
cation in an answer where the General Counsel ha[d]
already chosen to litigate that issue by filing a motion to
dismiss.” According to the judge, the June 30 motion to
dismiss and the October 8 answer constituted “two bites
at the apple” on the substantial justification issue. The
judge believed that the substantial justification arguments
set forth in the answer could only be considered if based
on newly discovered or previously unavailable matters.
The General Counsel excepts to the judge’s ruling and
argues that the October 8 answer satisfies the provisions
of Section 102.150 of the Board’s Rules and Regulations.
We find merit in this exception.
Section 102.150(a) of the Board’s Rules requires spe-
cific time periods for the filing of an answer in an EAJA
case. This Rule provides, in pertinent part:

336 NLRB No. 22
MEADEN SCREW PRODUCTS CO. 299
(a) Within 35 days after service of an application
the General Counsel may file an answer to the appli-
cation. Unless the General Counsel requests an ex-
tension . . . under paragraph (b) of this section, fail-
ure to file a timely answer may be treated as a con-
sent to the award requested. The filing of a motion
to dismiss the application shall stay the time for fil-
ing an answer to a date 35 days after issuance of any
order denying the motion. . . . Review of an order
granting a motion to dismiss an application in its en-
tirety may be obtained by filing a request therefor
with the Board in Washington, D.C., pursuant to sec-
tion 102.27 of these rules.

Under the Board’s Rule, the General Counsel normally
has 35 days in which to file an answer to the application
unless he decides to file a motion to dismiss the applica-
tion. In that situation, the rule permits the filing of a mo-
tion to dismiss the application to extend the normal 35-
day filing requirement for an answer to an additional “35
days after issuance of any order denying the motion.” In
other words, if the General Counsel does not prevail on
his motion to dismiss and desires to continue to contest
the issuance of an EAJA award, Section 102.150(a) not
only permits, but specifically requires, the General
Counsel to file an answer to preserve his challenges to
the application.4 Otherwise, Section 102.150(a) reveals
that failure to file a timely answer may be treated as the
General Counsel’s consent to the award requested by the
EAJA applicant.
Section 102.150(c) of the Board’s Rules identifies the
parameters and scope of an answer in an EAJA case.
The Board’s Rule states:

(c) The answer shall explain in detail any objec-
tions to the award requested and identify the facts re-
lied on in support of the General Counsel’s position.
If the answer is based on alleged facts not already in
the record of the adversary adjudication, supporting
affidavits shall be provided or a request made for
further proceedings under section 102.152.

Section 102.150(c) broadly permits the delineation of
“any objections to the award” in the answer, and this
Rule contains no explicit or implicit prohibition against
the inclusion or restatement of any issues or arguments
that may have been presented in any prior pleading by

4 If the General Counsel prevails on his motion to dismiss the appli-
cation, the filing of an answer is not necessary. Under Sec. 102.150(a)
of the Board’s Rules, the application is dismissed unless the Applicant
decides to seek Board review of the judge’s dismissal of the applica-
tion. Pursuant to Sec. 102.27 of the Board’s Rules, the Applicant may
file a request for review within 28 days from the date of the judge’s
Order of dismissal of the application.
the General Counsel, including a motion to dismiss the
EAJA application. Specifically, this Rule does not re-
strict or limit the General Counsel’s arguments that are
presented in an answer to “newly discovered” or “previ-
ously unavailable” matters, as the judge found. Thus,
Section 102.150(c) places none of the restrictions on the
October 8 answer imposed by the judge in the instant
case.
We find that the General Counsel complied with the
provisions of Section 102.152(a). The General Counsel
chose to file a timely motion to dismiss the application.
Then, the judge in his September 8 Order partially denied
that motion on the substantial justification issue. That
partial denial, however, activated the additional 35-day
provision extending the period for the filing of a timely
answer under Section 102.150(a). Thus, when the Gen-
eral Counsel submitted his answer on October 8, the 30th
day after the issuance of the judge’s September 8 Order,
he met the time requirements specified by Section
102.150(a).
We also find that the October 8 answer satisfies the re-
quirements of Section 102.150(c). The answer delineates
the General Counsel’s objections to the award requested
by the Applicant, identifies pertinent facts in support of
the General Counsel’s position, and includes supporting
affidavits and documents.5 Therefore, we find that the
judge should not have struck those portions of the Gen-
eral Counsel’s answer pertaining to the substantial justi-
fication issue.
C. Substantial Justification Issue
EAJA, as applied through Section 102.143(b) of the
Board’s Rules, provides that a “respondent in an adver-
sary adjudication who prevails in that proceeding, or in a
significant and discrete substantive portion of that pro-
ceeding” and who 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 pro-
ceeding.6 Section 102.144 of the Board’s Rules states
that reimbursement of such expenses will be awarded
“unless the position of the General Counsel over which
the party prevailed was substantially justified.” To meet
this burden, the General Counsel must establish that he
was substantially justified at each stage of the proceed-
ing, i.e., at the time of the issuance of the complaint, tak-
ing the matter through hearing, and in filing exceptions
5 As here, in Shell Ray Mining, 297 NLRB 53, 55–56 (1989), the
General Counsel raised the substantial justification argument initially in
his motion to dismiss the EAJA application and later in his answer to
the application.
6 There is no dispute that the Applicant meets these threshold eligi-
bility requirements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
to the judge’s decision. An examination of the circum-
stances and evidence available to the General Counsel at
these junctures is required in order to determine whether
the General Counsel has carried his burden.
In Galloway School Lines, 315 NLRB 473 (1994), the
Board summarized the following principles relating to
the substantial justification test:

In order to determine whether the General Coun-
sel has satisfied this test, it is necessary first to iden-
tify what constitutes substantial justification. The
Board has stated that substantial justification does
not mean substantial probability of prevailing on the
merits, and that it is not intended to deter the agency
from bringing forward close questions or new theo-
ries of law. The Supreme Court has defined the
phrase “substantial justification” under EAJA as
“justified to a degree that could satisfy a reasonable
person” or having a “reasonable basis both in law
and fact.” Pierce v. Underwood, 487 U.S. 552, 565
(1988). Thus, in weighing the unique circumstances
of each case, a standard of reasonableness will ap-
ply.

Id. at 473 (footnotes omitted). Accord: Inter-Neighborhood
Housing Corp., 321 NLRB 419 (1996), enf. denied 124
F.3d 115 (2d Cir. 1997).
Weighing the circumstances of the underlying unfair
labor practice case, the judge found that the General
Counsel was substantially justified in issuing and prose-
cuting the complaint through the hearing stage and the
posthearing briefing period preceding the judge’s deci-
sion.7 However, the judge found that the General Coun-
sel’s settlement posture through the conclusion of the
hearing and the General Counsel’s appeal of the judge’s
1997 decision did not satisfy the substantial justification
test. We disagree.
D. Settlement Posture
In late 1995, the International Association of Machin-
ists and Aerospace Workers, AFL–CIO petitioned to
represent the Applicant’s production and maintenance
employees. Brian Freid, an employee working in the
Applicant’s CNC department, campaigned for the Union.
Two weeks after the Board conducted an election on the
Union’s representation petition, the Applicant discharged
Freid on February 2, 1996.8 On July 29, 1996, Freid
filed a timely unfair labor practice charge alleging that

7 There are no exceptions to the judge’s finding. We do not construe
as properly filed exceptions certain statements in the Applicant’s brief
that arguably challenge the judge’s finding.
8 After Freid was discharged, the Applicant withdrew its objections
to the election won by the Union, recognized the Union, and negotiated
a contract with the Union.
his discharge had violated Section 8(a)(3) and (1) of the
Act.9 The Applicant denied that Freid’s discharge had
violated the Act in any manner. After conducting an
investigation of Freid’s discharge, the Regional Director
on behalf of the General Counsel issued a complaint, on
January 31, 1997, alleging that Freid had been unlaw-
fully fired for engaging in union activities.
The Regional Director’s precomplaint investigation
revealed the following information. On the day of his
discharge, Freid had been working on the T-7 machine in
his department. Shortly before his work shift was sched-
uled to end that day, Freid was notified that he was dis-
charged. After Freid’s discharge, the T-7 machine
“crashed” when an employee attempted to operate it.
The crash caused damage and the machine was unusable
for at least 1 day.
The Regional Director obtained conflicting evidence
about this T-7 machine crash, including sworn affidavits
from Union Representatives Joe Cooper and Don Stella
and employees Tom Austin, Wayne Weichinger,10 and
Freid. Cooper11 and Stella12 attributed responsibility for
this machine crash to Freid. Freid,13 Austin,14 and Weich-
inger15 gave assurances that Freid was not involved in
9 Shortly after Freid’s discharge, the Union filed, but later withdrew,
an unfair labor practice charge against the Applicant relating to the
discharge.
10 In sec. D, par. 6 of his September 8 Order, the judge mistakenly
refers to “Weichinger” as “Hechinger.”
11 Cooper recounted his conversation with Freid during a meeting at
the union hall to discuss then-pending issues relating to the January
1997 Board election. When their conversation turned to a discussion of
Freid’s discharge, Cooper tried to persuade Freid to accept a cash set-
tlement offered by the Applicant in February 1996. Cooper also told
Freid that the Applicant believed that Freid had sabotaged company
equipment. According to Cooper, Freid denied that he sabotaged the T-
7 machine, but later he admitted to Cooper that he “had someone else
do it.”
12 Regarding Cooper’s questioning Freid about sabotaging company
equipment, Stella claimed that he was there at the meeting when Freid
admitted his involvement.
13 Freid denied that he ever sabotaged any company equipment or
ever counseled employees to sabotage company equipment. Freid also
did not recall telling Cooper at any time that he had someone else sabo-
tage the T-7 machine.
14 Austin, a former employee, stated that he did not believe that Freid
would sabotage company equipment. He recalled that the T-7 machine
crashed on two other occasions after Freid’s discharge.
15 Weichinger, a current employee, stated that, by accident, he had
incorrectly programmed the T-7 machine after Freid left the plant on
February 2, 1997. Weichinger thought that he may have caused the T-7
machine crash. Weichinger confirmed that Freid had never asked him
to sabotage a company machine. Weichinger stated that he did not
believe that Freid would sabotage a company machine. Weichinger
also recalled that he and Tim Piehl, another union representative, had a
telephone conversation about Freid’s situation. According to Weich-
inger, Piehl was upset because Freid wanted to settle his discharge
claim to include reinstatement and because Weichinger was not willing
to say that Freid was responsible for the T-7 machine crash.
MEADEN SCREW PRODUCTS CO. 301
sabotaging company equipment, including the T-7 ma-
chine.
After the issuance of the complaint alleging Freid’s dis-
charge to be unlawful, the Regional Director, on behalf of
the General Counsel, engaged in settlement discussions
with the Applicant. By letter dated February 7, 1997, the
Regional Director proposed, inter alia, job reinstatement
and backpay for Freid, but he indicated a willingness to
entertain other settlement possibilities with the Applicant.
By letter dated February 19, 1997, the Applicant stated
that it had explored some settlement proposals with the
Region, and it was opposed to a settlement “along the lines
of 100% relief” for Freid. The Applicant suggested, with-
out delineating the specifics, that it would entertain any
“reasonable” settlement proposals from the Region. The
parties were unable to reach a settlement. The case pro-
ceeded to trial in May 1997, and the judge subsequently
recommended dismissal of the complaint in his 1997 deci-
sion.
At the trial, Cooper, Freid, and Weichinger provided
testimony about the T-7 machine crash immediately after
Freid’s discharge, which was consistent with the state-
ments in their precomplaint affidavits to the Regional Di-
rector. In his 1997 decision, the judge found, inter alia,
that Freid had counseled another employee to damage the
machine and Freid told Cooper that he had done so. The
judge’s findings were based on his crediting of Cooper’s
trial testimony and his discrediting of Freid’s and Weich-
inger’s trial testimony. The judge emphasized “Cooper’s
convincing demeanor,” and found “no reason to disbelieve
Cooper’s testimony.”16 The judge also found it “highly
unlikely that Cooper, a union agent, would simply fabri-
cate testimony of this nature.”17 The judge rejected
Weichinger’s testimony based on demeanor grounds and
as being evasive and inconsistent with the inherent prob-
abilities of the situation, noting that Weichinger had a
telephone conversation with Freid after his discharge and
the T-7 machine was not a part of Weichinger’s normal
routine. Thus, in light of his credibility findings, the judge
found that, even if Freid had been unlawfully discharged,
he was not entitled to reinstatement because of his in-
volvement in the T-7 machine crash. In his exceptions to
the judge’s 1997 decision, the General Counsel did not
challenge the judge’s denial of reinstatement for Freid. In
his brief supporting his exceptions to the judge’s 1997
decision, the General Counsel no longer sought a rein-
statement remedy for Freid’s discharge.
In his September 8 Order, the judge acknowledged that
credibility issues existed in the underlying unfair labor

16 325 NLRB at 771.
17 Id.
practice case, and that the General Counsel has leeway in
litigating cases that turn on the resolution of the credibility
of witnesses. However, the judge concluded that the Gen-
eral Counsel should have administratively discredited
Freid’s and Weichinger’s “inherently unreliable” testi-
mony about the T-7 machine crash. The judge believed
that had Freid’s and Weichinger’s testimony been properly
disregarded the General Counsel would have been without
any basis to seek Freid’s reinstatement. Thus, the judge
found that the General Counsel’s pursuit of a reinstatement
remedy for Freid, during settlement discussions with the
Applicant, was not substantially justified. Contrary to the
judge, we find that it was not unreasonable for the General
Counsel to rely on the sworn affidavits of Freid and
Weichinger for settlement purposes.
Weichinger gave several statements adverse to his own
interests as a current employee of the Applicant.18 His
admission that he may have been the one to have caused
the T-7 machine to crash after Freid’s discharge was given
at considerable risk of economic reprisal, including loss of
employment. In addition, former employee Tom Austin
supported Weichinger’s version of the events insofar as
Austin stated that he believed that Freid would not sabo-
tage company equipment. Weichinger’s statements cor-
roborated Freid’s own specific denial of any involvement
in the sabotage of company equipment, including the T-7
machine. Thus, under these circumstances, the General
Counsel was not obligated to completely discount their
sworn affidavits.
The judge also failed to allow for the possibility that
Cooper and Stella may have had a motive to act contrary
to Freid’s individual interests. Weichinger recalled that
the Union had tried to persuade him to blame Freid for the
T-7 machine crash at a time when the Union was appar-
ently pressuring Freid to take the February 1996 cash set-
tlement offer from the Applicant. Weichinger indicated
that the Union was upset apparently because Weichinger
and Freid were not going along with how the Union
wanted to dispose of Freid’s union discrimination claim.
The General Counsel believed that a possible plausible
explanation for this response by the Union was its compet-
ing institutional interest in negotiating a collective-
bargaining agreement on behalf of the remaining unit em-
ployees of the Applicant. Thus, it is possible that the
union affidavits might have been substantially influenced
or compromised by the Union’s frustrations over Freid’s
continued pursuit of his discrimination claim in a manner
not endorsed by the Union.
18 See Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977)
(judge credited current employee who testified contrary to the com-
pany’s position).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
We find that the issues involving Freid’s involvement
or responsibility for the T-7 machine crash turned on
credibility of the witnesses. Prior to the issuance of the
complaint, the Regional Director conducted a reasonable
investigation and attempted to resolve the conflict be-
tween Freid’s and the Union’s version of events. Freid’s
sworn statements of denial were corroborated by sworn
affidavits from Weichinger and Austin, and union repre-
sentatives’ sworn affidavits to the contrary were not free
of doubt and suspicion. In these circumstances, we find
that under the EAJA’s standard of “substantial justifica-
tion” the General Counsel could pursue a reinstatement
remedy for Freid in settlement discussions that occurred
prior to the issuance of the judge’s 1997 decision.
E. The General Counsel’s Exceptions to
the Judge’s 1997 Decision
In the underlying unfair labor practice proceedings, the
General Counsel relied on the Board’s Wright Line19 test
to establish the illegality of Freid’s discharge. Through-
out these proceedings, the Applicant maintained that on
February 2 the company president gave Freid three rea-
sons for firing him—declining production in the CNC
department, Freid’s poor attendance, and deteriorating
communication between Freid and his supervisor. The
General Counsel argued that these reasons were pretex-
tual, and therefore that the presence of an unlawful mo-
tive could be inferred. The judge assumed that these
reasons were pretextual, but he declined to infer an
unlawful motive for Freid’s discharge. Instead, the judge
credited the Applicant’s attorney who testified that the
company president had suspected Freid of deliberately
impairing production in the CNC department before his
discharge. Although the Applicant had never asserted
this suspicion as a basis for discharging Freid, the judge
dismissed the complaint.
In his exceptions to the judge’s 1997 decision, the
General Counsel argued for reversal of the judge’s dis-
missal of the complaint. The General Counsel excepted
to some of the judge’s credibility resolutions, and he at-

19 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). As the Board explained in
Regal Recycling, Inc., 329 NLRB 355, 356 (1999) (footnotes omitted):
Under the test set out in Wright Line, in order to establish that
the Respondent unlawfully discharged the . . . employees based
on their union activity, the General Counsel must show by a pre-
ponderance of the evidence that the protected activity was a moti-
vating factor in the Respondent’s decision to discharge. Thus, the
General Counsel must show that the employees engaged in union
activity, that the Respondent had knowledge of that activity, and
that the Respondent demonstrated antiunion animus. Once the
General Counsel has made the required showing, the burden shifts
to the Respondent to demonstrate that it would have taken the
same action even in the absence of the protected union activity.
tacked, inter alia, the judge’s finding that Freid was ter-
minated for a reason that was neither communicated to
him when he was fired nor relied on by the Applicant
during the hearing. The General Counsel also argued
that Freid’s discharge should be overturned because the
Applicant did not have a good-faith belief that Freid en-
gaged in any deliberate impairment of production in the
CNC department.
In his September 8 Order, the judge found that the Ap-
plicant was entitled to an EAJA award because the Gen-
eral Counsel was not substantially justified in filing ex-
ceptions to the 1997 judge’s decision. He read the Gen-
eral Counsel’s exceptions as challenging only his credi-
bility resolutions. We disagree and observe that the
General Counsel’s exceptions were based on more than a
dispute over the judge’s credibility resolutions. We find
that “[e]ven accepting the judge’s credibility resolutions,
the General Counsel reasonably argued that the judge
should have drawn other inferences from the record that
would have supported the General Counsel’s position.”
Europlast, Ltd., 311 NLRB 1089 (1993), affd. 33 F.3d 16
(7th Cir. 1994).
The record in the underlying unfair labor practice case
showed that Freid had been notified of three reasons for
his discharge, while the Applicant’s attorney testified to
a previously undisclosed “fourth” reason that the judge
found justified Freid’s discharge. In light of what ap-
peared to be a shifting of defenses by the Applicant, the
General Counsel wanted the Board to examine the
judge’s conclusion that the General Counsel failed to
establish a prima facie case of discrimination. It is well
established that shifting of defenses weakens the em-
ployer’s case, because it raises the inference that the em-
ployer is “grasping for reasons” to justify an unlawful
discharge.20 On review, the Board did not infer unlawful
motivation, as requested by the General Counsel, be-
cause the Board relied on the testimony of the Respon-
dent’s president that corroborated the testimony of the
Applicant’s attorney about the “fourth” discharge rea-
son.21
Faced with a similar situation in Europlast, supra at
1089, where it denied the EAJA application, the Board
stated:
Because it was possible to draw a set of inferences
from the circumstances here that would have supported
the General Counsel’s position, we find that the Gen-
eral Counsel’s arguments had a reasonable basis in law
and fact and were therefore substantially justified
20 Royal Development Co. v. NLRB, 703 F.2d 363, 372 (9th Cir.
1983).
21 325 NLRB at 762 fn. 2.
MEADEN SCREW PRODUCTS CO. 303
within the meaning of the Equal Access to Justice Act.
See Bennington Iron Works, 278 NLRB 1087, 1088
(1986). That the arguments ultimately proved to be
unpersuasive is insufficient to sustain the application
because they were not insubstantial. Lion Uniform,
285 NLRB 249, 258 (1987).

Accordingly, we reverse the judge’s finding of no sub-
stantial justification for the General Counsel’s filing of
his exceptions to the judge’s 1997 decision.
ORDER
The National Labor Relations Board reverses the rec-
ommended Order of the administrative law judge and
orders that the application of the Applicant, Meaden
Screw Products, Co., Burr Ridge, Illinois, for attorney’s
fees and expenses under the Equal Access to Justice Act
is denied.

SUPPLEMENTAL DECISION AND ORDER
WILLIAM G. KOCOL, Administrative Law Judge. On May
15, 1998, the National Labor Relations Board issued a Decision
and Order in this case.1 Thereafter, on June 2, 1998, Respon-
dent filed an application for fees and expenses under the Equal
Access to Justice Act, Pub. L. 96-481, 94 Stat. 2325 and Sec-
tion 102.143 of the Board’s Rules and Regulations, and a mo-
tion to withhold confidential financial information from public
disclosure. That same day the Board referred those matters to
me for appropriate action. On June 5, 1998, Respondent filed a
petition to increase maximum attorney fee rates. On June 30,
1998, the General Counsel filed a motion to dismiss respon-
dent’s application and alternative motion to strike portions of
the application. On July 10, 1998, Respondent filed a reply
brief in support of the application. On August 3, 1998, Re-
spondent filed a revised itemization of EAJA recovery sought.
Treating this as a motion to amend the application, on August
6, 1998, I issued an Order granting Respondent’s request to
amend the application. On August 14, 1998, the General Coun-
sel filed a response to Respondent’s revised itemization.
Discussion
On the entire record in this case, and after considering the
arguments made by the General Counsel and Respondent, I
make the following findings of fact. On September 8, 1998, I
issued an Order, which I adopt as part of this decision. In that
Order I resolved the issues raised by the General Counsel’s
motion to dismiss. I concluded that the General Counsel was
substantially justified in some respects but was not substantially
justified in other respects. I further concluded that Respondent
was not entitled to the full amount of fees that it had requested.
Thereafter, pursuant to my request Respondent filed a revised
schedule of fees and expenses that was consistent with the Or-
der. That revised schedule is also made part of this decision.
Although the General Counsel was given 10 days to file any
objections to the revised schedule, it did not file any objections.

1 325 NLRB 762.
I therefore conclude that the amount of fees and expenses set
forth in the revised schedule, in the amount of $30,909.12, is
consistent with the Order.
On October 8, 1998, the General Counsel filed an answer.
The answer admitted that Respondent meets the eligibility re-
quirements under EAJA. The answer also pled a number of
affirmative defenses. The answer then goes on to attempt to
relitigate the issue of whether the General Counsel was substan-
tially justified. On October 30, 1998, Respondent filed a reply
to the General Counsel’s answer
I conclude that the General Counsel may not relitigate the is-
sue of substantial justification in an answer where the General
Counsel has already chosen to litigate that issue by filing a
motion to dismiss. As indicated, the General Counsel raised
the issue of his substantial justification in the motion to dismiss.
The General Counsel had a full opportunity to make a complete
record in that regard and present whatever arguments he
thought appropriate. I then resolved those issues. The General
Counsel now attempts to supplement the record and make addi-
tional arguments on that issue.2 I conclude that the General
Counsel may not now do so; the General Counsel is not entitled
to two bites at the apple. The Board has consistently held that
the General Counsel is not a preferred party in Board proceed-
ings. No party is entitled to raise an issue and then, after the
issue is decided and it has the benefit of the judge’s ruling,
supplement the record and make additional arguments on the
issue that has already been decided.3 Common notions of fair-
ness and efficiency require that this not be allowed. Moreover,
such a procedure would render any ruling on the merits of a
motion to dismiss meaningless, since such a ruling would not
be a final disposition of the issues raised. Accordingly, I shall
strike from the General Counsel’s answer those portions that
seek to relitigate the issue of substantial justification and sup-
plement the record.4
CONCLUSIONS OF LAW
1. Respondent is eligible to receive fees and expenses under
EAJA and the Board’s Rules.
2 I have examined the answer and have determined that it does not
contain newly discovered or previously unavailable matters. Further, in
the event that the full answer was to be considered, I conclude that it
would not change the results set forth in the Order.
3 For example, had I granted the motion to dismiss, Respondent
would be entitled to appeal that ruling to the Board. It could not, how-
ever, then add to the record and make additional arguments based
thereon.
4 The General Counsel’s processing of this case continues to be
troubling. As is now apparent, there was no dispute concerning Re-
spondent’s eligibility and there were no credibility matters warranting a
hearing in this case. The only issues were whether the General Counsel
was substantially justified and the amount of money Respondent was
entitled to. Both of these issues were resolved in the Order. Months
ago I suggested to the parties that, under these circumstances, my ruling
on the General Counsel’s motion to dismiss would resolve all issues
and make this case ready for final disposition. The General Counsel,
however, insisted on filing an answer that we now see contained noth-
ing that could not have been submitted months ago. This posture de-
layed the final disposition of the case and caused unnecessary expense.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
2. Respondent is a prevailing party as defined in EAJA and
the Board’s Rules.
3. The General Counsel was substantially justified in issuing
complaint alleging Freid’s unlawful discharged.
4. The General Counsel was not substantially justified in fil-
ing exceptions to my earlier decision in this case.
5. The General Counsel’s settlement posture in this case was
not substantially justified.
6. The General Counsel’s motion to strike attorney’s fees
charged in excess of $125 per hour is granted.
7. The General Counsel’s motion to strike fees and expenses
associated with the settlement efforts in this case is denied.
8. The General Counsel’s motion to strike $1200 in fees and
expenses associated with the brief that Respondent prepared but
that was rejected by the Board is granted.
[Recommended Order omitted from publication.]