[ v25 p354 ]
25:0354(24)CO
The decision of the Authority follows:
25 FLRA No. 24
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2369, AFL-CIO
Respondent
and
SOCIAL SECURITY ADMINISTRATION
NEW YORK REGIONAL OFFICE
Charging Party
Case No. 2-CO-20025
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, denying the Respondent's application for an
award of attorney's fees and expenses under the Equal Access to Justice
Act. Thereafter, the Respondent filed exceptions to the Judge's
Decision and the General Counsel filed an opposition to the Respondent's
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's Decision
and the entire record, we adopt the Judge's findings, conclusions and
recommendations. In so doing we find that the Judge's determinations
were made on the basis of the administrative record as a whole, in
accordance with 5 U.S.C. section 504(a)(1), as amended by Pub. L. No.
99-80, 99 Stat. 183.
ORDER
The application by Respondent for attorney's fees and expenses is
denied.
Issued, Washington, D.C., January 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CO-20025
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL, 2369, AFL-CIO
Respondent
and
SOCIAL SECURITY ADMINISTRATION
NEW YORK REGIONAL OFFICE
Charging Party
Gay H. Snyder, Esquire
For the Respondent
Allan W. Stadtmauer, Esquire
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION AND ORDER
Statement of the Case
This case involves an application for attorney's fees and expenses
filed on July 1, 1986 by American Federation of Government Employees,
Local 2369 AFL-CIO (herein called Respondent). Reimbursement is sought
pursuant to 5 U.S.C. 504 /1/ and 5 CFR 2430.1 et seq. /2/ by virtue of
the fact that Respondent was the prevailing party in a Decision and
Order issued by the Federal Labor Relations Authority on June 6, 1986.
The application for attorney's fees includes $7,282.50 to be paid to
Respondent for legal services rendered prior to July 5, 1985, /3/ as
well as $1,387.50 to be paid to attorney Gay H. Snyder for services
performed by her after said date. Reimbursement is also sought for
costs in the sum of $238.43.
The said application, which had been filed with the Authority, was
referred on July 1, 1986 to the Office of Administrative Law Judges.
Briefs were filed by both Respondent and General Counsel and have been
duly considered by the undersigned.
On August 1, 1986 General Counsel filed a Motion to Dismiss the
application for attorney's fees and expenses.
Background
On May 31, 1983 the Acting Regional Director for the Federal Labor
Relations Authority, Region II, issued a Complaint and Notice of Hearing
alleging a violation by Respondent Union of Sections 7116(b)(7)(A) and
(B) of the Federal Service Labor-Management Relations Statute (herein
called the Statute). It was alleged that, on or about August 22, 1982,
Respondent called for and participated in the picketing of a Socail
Security reception area at 1515 Broadway, New York; that the picketing
was conducted in an area used by the employees of the said agency to
perform their duties, and which area was used by the public who had
official business with Social Security.
An Answer dated June 23, 1983 was filed by Respondent wherein it
denied the commission of any unfair labor practices.
A hearing was held before the undersigned on October 20, 1983 at
which time all parties were afforded full opportunity to be heard, to
adduce evidence, and to examine and cross-examine witnesses. Thereafter
briefs were filed with the undersigned.
Under date of May 1, 1984 the undersigned issued a Decision in said
case wherein it was concluded that there was no disruption of operations
as a result of the picketing; that the impact upon the work due to the
pickets was not sufficient to constitute interference with the
operations of the agency within the meaning of 7116(b)(7)(A) of the
Statute; and that Respondent did not thereby commit an unfair labor
practice. It was recommended that the Complaint be dismissed.
The Authority issued its Decision and Order on June 6, 1986 wherein
it adopted the undersigned's findings, conclusions and recommended
order. It concluded that the demonstrations by the ten pickets in a 17
x 70 foot public waiting room of Social Security for ten minutes caused
no disturbance; that while the agency utilized all its employees to
conduct interviews and management removed the public from the reception
room in anticipation of the picketing, the processing of pending claims
was not appreciably delayed and the impact upon the agency's mission was
negligible. /4/ The Authority stated as follows:
"Thus, the number and conduct of the pickets, as well as the
location of the picketing in a public area, accessible even to
individuals who have no business with the agency, could not be
said to have caused interference with Acitivity operations in any
real sense."
Discussion and Analysis
The Equal Access to Justice Act became effective on October 1, 1981.
The Congressional Findings and Purposes thereof are set forth in Section
202 of Public Law 96-481, which provides:
Sec. 202. (a) The Congress finds that certain individuals,
partnerships, corporations, and labor and other organizations may
be deterred from seeking review of, or defending against,
unreasonable governmental action because of the expense involved
in securing the vindication of their rights in civil actions and
in administrative proceedings.
(b) The Congress further finds that because of the greater
resources and expertise of the United States the standard for an
award of fees against the United States should be different from
the standard governing an award against a private litigant, in
certain situations.
(c) It is the purpose of this title --
(1) to diminish the deterrent effect of seeking review of, or
defending against, governmental action by providing in specified
situations an award of attorney fees, expert witness fees, and
other costs against the United States; and
The pertinent provisions of said Act are contained in 5 U.S.C. 504,
"Costs and Fees of Parties". Section 504(a) (1) states as follows:
"An agency that conducts an adversary adjudication shall award,
to a prevailing party other than the United States, fees and other
expenses incurred by that party in connection with that
proceeding, unless the adjudicative officer of the agency finds
that the position of the agency as a party to the proceeding was
substantially justified or that special circumstances made an
award unjust." (Underscoring supplied).
Section 504(b)(1)(A) sets forth what is included within the term
"fees and other expenses." Section 504(b)(1)(B) defines the term "party"
to include an individual, partnership, corporation, association, or
public or private organization. It excludes an association or
organization whose net worth exceeded $5,000,000 when the adjudication
was initiated. However, an organization exempt from taxation under
501(a) of the Internal Revenue Code /5/ is deemed a party regardless of
net worth. Section 504(b)(1)(C) construes an "adversary adjudication"
as an adjudication in which the United States is represented by counsel
or otherwise.
The Authority's implementation of the EAJA is found in Art 2430 of
the Rules and Regulations. Provision is made for fees and expenses to
be paid to a prevailing party. Section 2430.1 provides, in pertinent
part, that:
"An eligible party may receive an award when it prevails over
an agency, unless the agency's position in the proceeding was
substantially justified, or special circumstances make an award
unjust . . ."
Section 2430.2 declares who is eligible to apply for an award, and
the eligibility requirement are in accord with those set forth in the
EAJA. The standards for receiving awards are found in Section 2430.3
which provides as follows:
"(a) An eligible applicant may receive an award for fees and
expenses incurred in connection with a proceeding, or in a
significant and discrete portion of the proceeding, unless the
position of the General Counsel over which the applicant has
prevailed was substantially justified. The burden of proof that
an award should not be made to an eligible applicant is on the
General Counsel, who may avoid an award by showing that its
position in initiating the proceeding was reasonable in law and
fact."
It thus becomes clear from the foregoing statutory provision, as well
as the Authority's Rules and Regulations, that a prevailing party may be
awarded fees and expenses unless it be shown that there was substantial
justification for the action or proceeding. Moreover, it is incumbent
upon the General Counsel to show that there was a reasonable basis in
law and fact for initiating the proceeding.
The Complaint herein was issued based on an alleged violation of
Section 7116(b)(7)(A) of the Statute which makes it an unfair labor
practice for a union to picket an agency in a labor-management dispute
if such picketing interferes with an agency's operations. There seemed
little doubt, and it was held, that a labor dispute existed between
Respondent and the Social Security Administration re the official time
to be taken by officers of the union under the national contract. The
underlying question of when picketing is deemed to constitute
interference with an agency's operations was one of first impression in
the public sector. No decisional law existed, prior to the instant
case, which would shed light on the term "interference" or indicate the
degree of interference with an agency's operations that would run afoul
of 7116(b)(7)(A).
It seems quite apparent that, while Congress meant to preserve
freedom of expression via picketing, the operations of a governmental
agency had to be maintained. Nevertheless, parties could well disagree
as to whether picketing interfered with said operations. General
Counsel took the position that the picketing in the reception area of
Social Security did interfere with the agency's operations. The fact
that it was ultimately held otherwise did not militate against finding
there was a reasonable basis in law to institute the action. No adverse
presumption may be made by virtue of a dismissal of the complaint.
Neither is the General Counsel required to show a substantial likelihood
of success before initiating the proceeding. Westerman, Inc. v. NLRB,
749 F.2d 14 (CA 6, 1984), S & H Riggers and Erectors, Inc. v. OSHA, 672
F.2d 426 (CA 5, 1982). The legal issue presented to the Authority, as a
reult of the picketing, was scarcely a settled one. Further, the
circumstances surrounding the picketing -- which occurred within a
governmental office -- were unusual and never prevented theretofore.
Hence, I find and conclude that there was a reasonable basis in law to
initiate this proceeding and to issue the Complaint against Respondent.
With respect to the factual basis for the action taken against
Respondent, the record herein disclosed that management made some
changes in anticipation of the pickets entering the Social Security
office. It assigned all claims representatives to interview claimants
so that none would be in the reception area. /6/ Two clerks were also
moved into the main office area. During the picketing some employees
stopped work and looked over the partition separating the inner offices
from the reception room. An extra guard was placed at this area. The
claimants who completed their business were escorted out of the office
while the picketing occurred. The receptionist was present as well as
the manager of the Social Security office.
The foregoing facts, together with all the evidence in the record,
persuades the undersigned that there was sufficient justification for
litigating the instant case. The interruption of interviews and the
reassignment of employees, together with some cessation of work, was a
sound enough basis for the General Counsel to contend that the
picketing, which indeed such results, interfered with the agency's
operations. Whether or not such facts constituted a disruption
sufficient to be characterized as "interference" was arguable, and a
determination in this regard could only be realistically concluded after
detailed evidence was presented. There was sufficient facts involving
the changes made by Social Security and the resultant inconvenience so
as to litigate the question as to whether the impact of the picketing
interfered with the agency's operations within the meaning of Section
7116(b)(7)(A) of the Statute. There was clearly a reasonable basis in
fact to bring this case to hearing and substantial justification
therefor.
Ultimate Findings and Conclusions
1. Respondent, American Federation of Government Employees, Local
2369, AFL-CIO, is, and has been at all times material herein, a "party"
as defined in 5 U.S.C. 504(b)(1)(B) and eligible as a prevailing party
to apply for an award of attorney's fees and expenses as set forth in
Part 2430.2(b) of the Authority's Rules and Regulations.
2. Respondent, American Federation of Government Employees, Local
2369, AFL-CIO, is and has been at all times material herein, a labor
organization within the meaning of Section 7103(a)(4) of the Statute.
3. Initiation of the unfair labor practice proceeding by the
issuance of a Complaint against Respondent, as well as the litigation of
the issue as to whether the picketing by Respondent in the reception
area of the Social Security Office at 1515 Broadway, New York, New York,
was reasonable in law and fact and was justified.
4. Respondent union is not entitled to receive an award for
attorney's fees and expenses as an applicant under 5 U.S.C. 504, the
Equal Access to Justice Act.
ORDER
It is hereby Ordered that the application by Respondent, American
Federation of Government Employees, Local 2369, AFL-CIO, for attorney's
fees and expenses is denied, and the cross-motion of General Counsel to
dismiss said application is granted.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: September 12, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Equal Access to Justice Act (herein called the EAJA or the
Act).
(2) Part 2430.1 et seq. of the Authority's Rules and Regulations.
(3) Date that employment of Respondent's attorney, Gay H. Snyder, was
terminated.
(4) The Authority recognized that in an operation of high
sensitivity, as national security or health, even a relatively brief and
minor disturbance could justify a finding of unlawful interference.
However, the Social Security's function were not deemed to fall within
that category.
(5) A labor organization is tax exempt thereunder.
(6) On the day of the picketing twice as many claimants were thus
interviewed as is customary due to this change in operation.