Operations In Fiscal Year 1988 - National Labor Relations Board

126 Fifty-Third Annual Report of the National Labor Relations Boardunion for any backpay due Becker because of the discriminatoryoperation of the hiring hall. 1 7 9The Board concluded, however, that National Theatre hadneither actual knowledge of the union's discrimination nor aclosed-shop provision in its collective-bargaining agreementunder which it could be reasonably charged with notice of theunlawful conduct. Therefore, as there was nothing on the face ofa written contract that would have alerted National Theatre topossible discriminatory practices by the union, the Board dismissedthe 8(a)(3) allegation against it.L. Equal Access to Justice ActIn Brandeis Schoo1, 18° the Board granted in part and denied inpart an application for attorneys' fees and expenses under theEqual Access to Justice Act (EAJA). The Board found that theapplicant was a prevailing party and that the General Counsel'sposition had not been substantially justified in a significant anddiscrete portion of the underlying unfair labor practice case. Fur-.ther, the Board found that the applicant was not a prevailingparty as to settled complaint allegations and, therefore, was notentitled to recover fees and expenses related to these allegations.Finally, the Board concluded that the applicant was entitled torecover fees and expenses incurred in preparing its EAJA application.The underlying unfair labor practice case arose in part out of astrike by the applicant's employees. Approximately 2 weeksbefore issuance of the complaint, which alleged, inter alia, thatthe applicant had violated Section 8(a)(3) by failing to reinstatethe strikers, the General Counsel learned that the strikers' collective-bargainingrepresentative had failed to file 8(d) strike, notices,and that, accordingly, the strikers had lost their employeestatus under Section 8(d). After the applicant learned of the failureto file the notices during the course of the hearing, the administrativelaw judge dismissed the portions of the complaint relatedto the 8(a)(3) allegations. The parties informally settled theremaining allegations.The Board found that the General Counsel was not substantiallyjustified in pursuing the 8(a)(3) allegations. Thus, the Boardrejected the General Counsel's arguments that the union's failureto comply with Section 8(d) was an affirmative defense waivedby the applicant, that by attempting to reemploy some of thestrikers the applicant condoned the strike, and that the applicant'sfailure to disclose that it had not received a strike noticeconstituted "special circumstances" justifying denial of an award."9 In a supplemental decision, 289 NLRB No. 96, the Board limited the backpay liability of WolfTrap and Ford's Theatre to the duration of the contracts that contained the unlawful closed-shopclauses.180 287 NLRB No. 85 (Chairman Dotson and Members Babson and Stephens).