Operations In Fiscal Year 1988 - National Labor Relations Board

128 Fifty-Third Annual Report of the National Labor Relations Boardcounting principles of certified public accountants." The secondsupplemental application also included the previously submittedaffidavits of the applicant's administrative assistant, who statedthat he had reviewed the net worth statement prepared by theaccountant and had concluded that it accurately reflected the applicant'snet worth.In agreement with the judge, the Board majority concludedthat, although the applicant had satisfied EAJA's requirementthat it have fewer than 500 employees, it had not shown that itsatisfied the net worth requirement. The Board majority foundthat the net worth statement submitted by the accountant reliedon the same unattested to and unaudited fmancial statements previouslyconsidered and found deficient by the Board in its originalOrder. They noted that the statement was deficient becausethe accountant "applied his professional expertise only to theextent of verifying the summary arithmetic contained in the financialstatement" prepared by the applicant, "did not examineany of the underlying business records," and therefore "refrainedfrom expressing his professional opinion as to the accuracy of thefinancial statement 'taken as a whole." The Board majority indicatedthat this procedure, as well as the accountant's lack of personalknowledge of the applicant's business records, distinguishedthis case from American Pacific Pipe Co. v. NLRB" 3 andD'Amico v. Marine & Shipbuilding Workers," 4 two cases cited byMember Babson in his dissenting opinion.With regard to the admitrative assistant's affidavits, theBoard majority concluded that they were not admissible to provethat the net worth statement was an accurate indication of theapplicant's net worth. The Board majority noted that FederalRule of Evidence 901(a) requires that evidence be authenticated,and that Federal Rule of Evidence 901(b)(1) permits authenticationthrough the testimony of a witness with firsthand knowledge.The Board majority found that the administrative assistanthad not declared that he had prepared or reviewed the financialinformation supplied to the accountant, and had not indicatedhow he knew that the net worth statement was accurate. Therefore,the Board majority concluded, he lacked the firsthandknowledge necessary to authenticate the net worth statement.Consequently, the Board majority concluded that the applicanthad not submitted properly authenticated evidence of its networth and, therefore, had not satisfied its burden of eligibility foran EAJA award.In a dissenting opinion, Member Babson concluded that the applicanthad established its eligibility under EAJA and, thus, hewould have reached the merits of the applicant's entitlement toan EAJA award. He noted that, in light of the affidavits submit-1" 788 F.2d 586 (9th dr. 1986).'"630 F.Supp. 919 (D.Md. 1986).