Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 127The Board held, however, that the applicant was not entitled toan award of fees and expenses associated with the settled allegationsas the settlement's terms did not render it a prevailingparty.Finally, the Board reversed the judge's denial of an award forpreparation of the EAJA application. The judge based his denialon the inclusion of noncompensable fees and expenses and on theapplicant's inadequate response to an order requiring it to specifywhich fees and expenses were related to compensable matters.As virtually all the applicant's brief in support of the applicationdealt with the dismissed allegations and the appended timerecords enabled a calculation of an award on a reasonable basis,the Board found that an award of fees for time adequately documentedas relating to the EAJA application was proper. As tothe applicant's expenses, the Board reversed the judge's award of$1 per hour as having no basis in the record and awarded onlythose expenses documented as relating to compensable matters.In Industrial Security Services," 1 the Board found that an applicanthad not established its eligibility for an award underEAJA and dismissed the application. The Board majority concludedthat the applicant failed to submit "probative evidence ofits net worth" and, therefore, had failed to satisfy its burden ofshowing its eligibility for an EAJA award.The applicant had initially filed a timely application and supplementalapplication for an award of attorneys' fees and expensesunder EAJA. In its original Order, 182 the Board hadfound that material issues of fact existed concerning the applicant'snet worth. Thus, the Board noted that, although the applicanthad submitted its financial statements, the record containeda letter from an accounting firm stating that the applicant's managementhad prepared the fmancial statements and that the accountingfirm merely reviewed them in a fashion that was "substantiallyless in scope than an examination in accordance withgenerally accepted auditing standards." Consequently, the Boardhad remanded the case to the administrative law judge and orderedthe record reopened to permit the applicant to submit additionalevidence establishing its eligibility.The applicant thereafter filed a second supplemental application,which included a detailed statement of the applicant's employeecomplement prepared by its administrative assistant andthe sworn affidavit of its certified public accountant. That affidavitindicated that the accountant had determined the applicant'snet worth on the basis of attached fmancial information, whichwas the same compilation of unaudited figures that the applicanthad submitted with its initial application, and that he had preparedthe net worth statement "in accordance with general ac-181 289 NLRB No. 53 (Chairman Stephens and Member Johansen; Member Babson dissenting).In 272 NLRB 1083 (1984).