Golden Stevedoring Co.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 115 (N.L.R.B. 2004)

GOLDEN STEVEDORING CO.
343 NLRB No. 18
115
Golden Stevedoring Co., Inc. and International Long-
shoremen’s Association, AFL–CIO, South At-
lantic and Gulf Coast District. Cases 15–CA–
13334(E), 15–CA–13394(E), 15–CA–13601(E),
15–CA–13870(E), 15–CA–13871(E), 15–CA–
14186(E), 15–CA–14209(E), and 15–CA–14314(E)
September 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 21, 2001, Administrative Law Judge
Keltner W. Locke issued the attached supplemental deci-
sion. The Applicant, Golden Stevedoring Co., Inc., filed
exceptions and a supporting brief.1
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 request for review and brief
and has decided to affirm the judge’s rulings, findings,
and conclusions as modified and to adopt his recom-
mended Order.
The judge denied the Applicant’s request for fees and
expenses under the Equal Access to Justice Act (EAJA).2
Although we agree with the judge that the application
should be denied, we do not adopt his entire rationale.
More specifically, we find that even if the General Coun-
sel was not substantially justified as to paragraph 7(b) of
the complaint, and even if that paragraph was a “dis-
crete” substantive portion of the underlying adversary
proceeding, it was not a “significant” portion of the un-
derlying adversary proceeding. See Sections 102.143(b)
and 104.44 of the Board’s Rules and Regulations. In
addition, we conclude that the General Counsel’s overall
position is substantially justified.
On August 27, 2001, the Board issued a Decision and
Order finding that the Respondent (the Applicant) en-
gaged in certain violations of the Act, as alleged, and
dismissing certain other allegations of the unfair labor
practice complaint. Golden Stevedoring Co., 335 NLRB
410 (2001).

1 The Applicant also filed a request for special permission to appeal
the ruling of the judge dismissing its application for fees and expenses,
as well as a brief in support thereof. Pursuant to Sec. 102.150(a) of the
Board’s Rules, review of an order granting a motion to dismiss an
application for fees and expenses may be obtained by following the
provisions of Sec. 102.27 of the Board’s Rules. Pursuant to Sec.
102.27, we shall treat the Applicant’s exceptions and its request for
special permission to appeal as a request for review. We find that the
application for fees should be dismissed under any standard of review
utilized by the Board. See Electrical Workers Local 3 (Telecom Plus),
280 NLRB 265 fn. 1 (1986).
2 5 U.S.C. § 504.
Of particular relevance here is complaint paragraph
7(b), alleging that the Applicant threatened its employees
with discharge for engaging in union activities. At the
unfair labor practice hearing, the Applicant moved to
dismiss complaint paragraph 7(b) for lack of proof.
Counsel for the General Counsel stated that he had “no
defense” to the motion to dismiss and admitted that he
had no evidence to support the allegations of paragraph
7(b). The judge thereupon granted the Applicant’s mo-
tion to dismiss. Id. at 455. No exceptions were filed to
the judge’s ruling and, accordingly, the Board adopted
the judge’s dismissal of complaint paragraph 7(b).
On September 26, 2001, the Applicant applied to the
Board for an award of fees and expenses that it incurred
in defending against the complaint allegations that the
General Counsel pursued through trial and which were
dismissed by the judge. The application alleged that the
General Counsel’s position during this stage of the pro-
ceeding was not substantially justified. The General
Counsel filed a motion to dismiss the application, claim-
ing, inter alia, that his position throughout this phase of
the proceeding was substantially justified, notwithstand-
ing that the Applicant ultimately was the prevailing party
as to the complaint allegations dismissed by the judge.3
The judge found that in each instance in which the
Applicant prevailed on a particular complaint paragraph,
the Applicant prevailed in a significant and discrete sub-
stantive portion of the underlying adversary proceeding.
The judge also found, contrary to the Applicant, that the
General Counsel was substantially justified in each in-
stance in which the Applicant prevailed. The judge made
no specific mention of complaint paragraph 7(b). The
judge, accordingly, granted the General Counsel’s mo-
tion to dismiss the application for fees and expenses, and
denied the Applicant’s request for reimbursement of fees
and expenses.
Under EAJA, a party who has prevailed in an adver-
sary proceeding before a Federal Government agency
may be reimbursed for fees and expenses incurred in

3 The Applicant’s EAJA application did not seek reimbursement for
any time spent in responding to the General Counsel’s exceptions to the
judge’s dismissal of certain complaint allegations, or for any other
expenses incurred following issuance of the judge’s decision resolving
the complaint allegations. However, in its combined special appeal
brief and brief excepting to the judge’s supplemental decision denying
an EAJA award, the Applicant raises for the first time, and only in a
concluding sentence of its brief, that the Board should remand this case
to the judge to consider “whether the General Counsel was substantially
justified in appealing the decision of the . . . judge to the Board.” In
addition to being untimely and, thus, not properly before us, we note
that the Applicant does not argue or request separate expenses regard-
ing its response to the General Counsel’s exceptions, nor does the Ap-
plicant provide any reason or rationale why the General Counsel’s
exceptions to the Board were not substantially justified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD116
connection with that proceeding, unless the agency’s
position was substantially justified. Section 102.143(b)
of the Board’s Rules and Regulations states that a party
who prevails in an adversary proceeding, “or in a signifi-
cant and discrete substantive portion of that proceeding,”
may seek reimbursement under EAJA. Section 102.44 of
the Board’s Rules and Regulations provides that “[a]n
eligible applicant may receive an award . . . in connection
with a significant and discrete substantive portion of
[the] proceeding, unless the position of the General
Counsel . . . was substantially justified.”
There are, therefore, two distinct issues presented. The
first issue is whether the applicant is a party who pre-
vailed in the adversary proceeding or in a “significant
and discrete substantive portion” of the proceeding. The
second issue is whether the General Counsel’s position in
the proceeding was substantially justified.
As stated above, the judge found that each paragraph
of the complaint on which the Applicant prevailed was
itself a “significant and discrete substantive portion” of
the underlying adversary proceeding. Although no party
specifically contests that finding, the Board is not re-
quired to adopt it.4
In our view, an EAJA claimant can succeed where the
allegations, as an inclusive whole, were not substantially
justified. Glesby Wholesale, Inc., 340 NLRB 1059
(2003). If the claimant shows only that particular allega-
tion(s) were not substantially justified, the claimant will
not succeed. See Glesby, supra. However, if the claim-
ant shows those particular allegations are a “discrete and
significant” portion of the case, and there is no substan-
tial justification therefor, the claimant can succeed.5
In the instant case, the Respondent has shown that
there was no substantial justification for paragraph 7(b)
of the complaint. We assume arguendo that paragraph
7(b) is a discrete portion of the case. However, we con-
clude that it is not a significant part of the case. Thus,
we disagree with the judge that paragraph 7(b) was a
“significant and discrete” portion of the case. Paragraph
7(b) alleged a single threat of discharge. There were 19
other allegations. They included a myriad of 8(a)(1) al-
legations, suspensions, warnings, reductions of hours; a
refusal to reinstate unfair labor practice strikers; and a
host of unilateral changes. In these circumstances, we
conclude that paragraph 7(b), alleging a single threat of
discharge, was not a “significant” part of the entire case.

4 It is well established that “[e]ven absent an exception, the Board is
not compelled to act as a mere rubber stamp for its [judge]. . . . The
Board [is] free to use its own reasoning and [is] not bound by that of
the [judge].” NLRB v. WTVJ, Inc., 268 F.2d 346, 348 (5th Cir. 1959).
5 See Secs. 102.143(b) and 102.44 of the Rules and Regulations.
Looking at the General Counsel’s position on the
complaint allegations as an inclusive whole, we find that
the General Counsel was substantially justified. In fact,
the General Counsel was the party who prevailed on the
complaint allegations of threats of plant closure, threats
to cause the arrest of union officials, warning and sus-
pending employees because of their union activities, re-
fusing to reinstate economic strikers, creating the impres-
sion of surveillance, and unilaterally changing the disci-
plinary system. With respect to the complaint allegations
on which the Applicant prevailed other than paragraph
7(b),6 the judge stated that his credibility resolutions
were either “the decisive factor” or “an important factor.”
We agree with the judge’s reasoning that, in such cir-
cumstances, the General Counsel’s decision to litigate
these issues had a reasonable basis in fact and law, and
was substantially justified. David Allen Co., 335 NLRB
783, 784–785 (2001) (“[W]here the General Counsel is
compelled by the existence of a substantial credibility
issue to pursue the litigation, and thereafter presents evi-
dence, which, if credited, would constitute a prima facie
case, the General Counsel’s case has reasonable basis in
fact and law and is substantially justified.”).
Given the allegations on which the General Counsel
prevailed, and the substantial justification for all except
one of the allegations that were dismissed, we conclude
that the General Counsel’s overall position is substan-
tially justified. And as to complaint paragraph 7(b), as to
which the General Counsel presented no evidence, we
conclude that it was not a “significant” portion of the
case.
ORDER
The recommended Order of the administrative law
judge is adopted, and the application is denied.
MEMBER WALSH, concurring.
I agree with my colleagues, for the reasons they state,
that the General Counsel’s position “as an inclusive
whole” was substantially justified and that, therefore, the
application for fees and expenses under the Equal Access
to Justice Act (EAJA) should be denied. Glesby Whole-
sale, Inc., supra at 1060. (“While the parties’ positions
on individual matters may be more or less justified, the
EAJA . . . favors treating a case as an inclusive whole
rather than as atomized line-items.”) (quoting Commis-
sioner, INS v. Jean, 496 U.S. 154, 161–162 (1990)). Our

6 The dismissed allegations include the following: threats of dis-
charge and futility of union representation, discriminatory written
warnings, discriminatory reduction in work hours, adversely affecting
the work hours of employees, refusing to reinstate employees after the
strike, refusing to reemploy an employee, and unilaterally changing the
policy on assignment of work.
GOLDEN STEVEDORING CO. 117
holding that the General Counsel was substantially justi-
fied fully disposes of the question before us of whether
the Applicant is entitled to an award under EAJA.
I write separately to disassociate myself from my col-
leagues’ discussion of whether paragraph 7(b) of the
complaint constituted a “significant and discrete substan-
tive portion of [the] proceeding” within the meaning of
Section 102.143(b) of the Board’s Rules and Regula-
tions.1 Given our holding on the “substantial justifica-
tion” issue as a whole, it is unnecessary to reach the
“significant and discrete” issue and, therefore, I do not
join my colleagues in their discussion of this latter issue.
See Roanoke River Basin Assn. v. Hudson, 991 F.2d 132,
138 fn. 5 (4th Cir. 1992), cert. denied 510 U.S. 864
(1993) (“Because we affirm the district court on the
grounds that the government’s position is substantially
justified, we do not reach the question of whether the
court erred in concluding that the Association is a pre-
vailing party.”).
Christ J. Doyle, Esq., for the General Counsel.
Willis C. Darby Jr. Esq., of Mobile, Alabama, for the Respon-
dent.
SUPPLEMENTAL DECISION AND ORDER
KELTNER W. LOCKE, Administrative Law Judge. This is a
Supplemental Decision and Order concerning Respondent’s
(Golden Stevedoring Co., Inc.) application for an award of
allowable fees and expenses (the application) pursuant to the
Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 and Sec-
tion 102.143 of the Rules and Regulations of the National La-
bor Relations Board (the Board). Because I find that the Gen-
eral Counsel was substantially justified in litigating the allega-
tions in question, I deny the Respondent’s application.
I. PROCEDURAL HISTORY
On November 30, 1995, the Regional Director for Region 15
of the Board, acting on behalf of the General Counsel, began
the litigation in this matter by issuing an order consolidating
cases, consolidated complaint, and notice of hearing. The Re-
gional Director subsequently amended the consolidated com-
plaint.
On July 28, 1997, I opened a hearing in this matter in Mo-
bile, Alabama. The hearing closed on October 3, 1997.
On July 28, 1998, I issued a decision which concluded that
the General Counsel had proven some of the allegations raised
in the consolidated complaint, as amended, but had not proven
certain of the other allegations.

1 Sec. 102.143(b) provides that a respondent who “prevails” in an
adversary proceeding, “or in a significant and discrete substantive
portion of that proceeding,” and who otherwise meets the eligibility
requirements, may seek reimbursement of fees and expenses under
EAJA. Sec. 102.44 provides that “[a]n eligible applicant may receive
an award . . . in connection with a significant and discrete substantive
portion of [the] proceeding, unless the position of the General Counsel
. . . was substantially justified.”
On August 27, 2001, the Board issued a Decision and Order
which adopted the portions of my decision relevant here.
On September 26, 2001, the Respondent filed its application
for fees and expenses under the Equal Access to Justice Act.
On September 27, 2001, the Board, by its Executive Secre-
tary, issued an Order referring this matter to me.
On October 30, 2001, the General Counsel filed a timely mo-
tion to dismiss the Respondent’s application.
Neither the Respondent’s application nor the General Coun-
sel’s motion to dismiss requested a hearing. I conclude that a
hearing is not necessary.
II. RESPONDENT’S FINANCIAL ELIGIBILITY
The Equal Access to Justice Act (EAJA) and Section
102.143 of the Board’s Rules and Regulations include eligibil-
ity requirements. A corporation which has a net worth exceed-
ing $7 million or which has more than 500 employees is ineli-
gible for relief. To establish its eligibility, Respondent submit-
ted financial documentation along with its application. Based
on this documentation, I find that Respondent meets the net
worth and employment eligibility requirements to receive an
award under EAJA.
Respondent also filed a motion to withhold confidential fi-
nancial information from public disclosure, and later amended
that motion. In its motion, Respondent asserts that public dis-
closure of the confidential financial information “would aid the
competitors of Golden Stevedoring Co., Inc. in the Port of Mo-
bile.”
I grant Respondent’s motion and direct that the financial ex-
hibit remained sealed in accordance with the provisions of Sec-
tion 102.147(g) of the Board’s Rules and Regulations.
III. THE RESPONDENT’S APPLICATION
In its application, Respondent states that it prevailed with re-
spect to allegations raised in the following paragraphs of the
fifth consolidated complaint: 7(b), 8(a), (b), and (f), 9, 10, 11,
12, 13, 15, 17 (with respect to alleged discriminatees Mike
Linsey and James Lambert), 18, and 24. Respondent asserts
that the position of the General Counsel was not substantially
justified with respect to these allegations. Respondent seeks an
award of fees totally $99,279.50, “$1,452.80 for preparation of
statistical tables relating to paragraphs 12 and 24 of the Fifth
Consolidated Complaint, and $4,638 in expenses.” The Gen-
eral Counsel opposes any award of fees or expenses.
IV. THE GENERAL COUNSEL’S MOTION TO DISMISS
In his motion to dismiss, the General Counsel raised several
arguments. The General Counsel contended that the Respon-
dent did not cooperate fully with respect to the investigation of
all the allegations in the complaint.
Further, the General Counsel asserts that Respondent did not
prevail in a significant and discrete substantive portion of the
proceedings. Additionally, the General Counsel asserts that he
was substantially justified in all instances in which Respondent
ultimately prevailed.
V. APPLICABLE STANDARDS
Section 102.143(b) of the Board’s Rules and Regulations
states that “[a] respondent in an adversary adjudication who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD118
prevails in that proceeding, or in a significant and discrete sub-
stantive portion of that proceeding, and who otherwise meets
the eligibility requirements of this section, is eligible to apply
for an award of fees and other expenses.”
Section 102.144 of the Board’s Rules and Regulations sets
forth the standards for awards and allocates the burden of proof.
It states:
(a) An eligible applicant may receive an award for fees
and expenses incurred in connection with an adversary ad-
judication or in connection with a significant and discrete
substantive portion of that proceeding, unless the position
of the General Counsel over which the applicant has pre-
vailed 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 the General Counsel’s position in the proceeding was
substantially justified.
(b) An award will be reduced or denied if the applicant
has unduly or unreasonably protracted the adversary adju-
dication or if special circumstances make the award sought
unjust.
In Galloway School Lines, 315 NLRB 473 (1994), the Board
explained what constitutes “substantial justification.” It stated,
in part:
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 for-
ward close questions or new theories 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 with apply.
Id. at 473 (fns. omitted). See also Meaden Screw Products Co.,
336 NLRB 298 (2001).
After a charge is filed, Board agents conduct an investiga-
tion. In deciding whether to issue a complaint, the Regional
Director considers this evidence, which includes affidavits
provided by witnesses. Customarily, the Regional Director
does not determine which of the witnesses interviewed during
the investigation should be believed, and which should not.
Rather, that function rests with the administrative law judge,
who observes the witnesses as they testify under oath and re-
spond to cross-examination.
After observing witnesses under the exacting conditions of a
trial, the judge may decide that the General Counsel has not
proven a particular complaint allegation because the witness
who testified about this allegation was not credible. The judge
reaches a conclusion that certain testimony is dross rather than
gold only after that testimony has been tested in the crucible of
a courtroom. Such a conclusion does not imply that it was
unreasonable for the Regional Director to rely on the pretrial
statements of a witness in deciding what allegations to plead in
the complaint. As the Board stated in David Allen Co., 335
NLRB 783 (2001):
Credibility issues which are not subject to resolution by the
General Counsel in the investigative stage of a proceeding on
the basis of documents or other objective evidence are, in the
first instance, the exclusive province of the administrative law
judge. Accordingly, where the General Counsel is compelled
by the existence of a substantial credibility issue to pursue the
litigation, and thereafter presents evidence which, if credited,
would constitute a prima facie case, the General Counsel’s
case has a reasonable basis in law and fact and is substantially
justified. Barrett’s Contemporary & Scandinavian Interiors,
272 NLRB 527 (1984).
Discussion
A. The “Significant and Discrete Substantive
Portion” Issue
As described above, the Respondent’s application asserts
that Respondent prevailed with respect to the allegations raised
by certain identified paragraphs in the complaint. The General
Counsel contends that the allegations raised in a particular
complaint paragraph do not necessarily constitute a “significant
and discrete substantive portion” of the proceeding, as that term
is used in Section 102.143 of the Board’s Rules and Regula-
tions.
For example, the General Counsel argues that complaint
paragraphs 8(d) and (e) were so “factually and intimately con-
nected” that paragraph 8(d), on which Respondent prevailed,
could not be considered a significant and discrete substantive
portion of the proceeding. Specifically, paragraph 8(d) alleged
that Respondent threatened a union official with arrest if he
engaged in union or concerted activities on the Alabama State
docks and paragraph 8(e), on which the General Counsel pre-
vailed, alleged that Respondent attempted to arrest a union
official because he was engaged in union activities on the Ala-
bama State docks.
It is difficult for me to view the allegations in paragraphs
8(d) and (e) as anything but discrete because, if the two did not
have separate elements, my decision could not have found that
the government had proven one allegation but not the other.
Moreover, the fact that the General Counsel placed these two
allegations in different complaint paragraphs suggests that I am
not alone in viewing them as individual and discrete.
However, the Board’s Rules require, for EAJA purposes, that
the portion on which Respondent prevailed be in a significant
and discrete substantive portion of the adversary proceeding.
Arguably, the allegations in two complaint paragraphs might be
discrete and yet not significantly different to constitute a sepa-
rate substantive portion of the adversary proceeding.
In the present case, the substance of the violation alleged in
complaint paragraph 8(d) is quite different from the substance
of the violation alleged in complaint paragraph 8(e). The for-
mer concerns allegedly unlawful statements made in letters
which Respondent delivered to Union Representative Bru. My
decision found that the statements in these letters did violate the
Act.
On the other hand, the General Counsel did not prove the al-
legations in complaint paragraph 8(e), which did not concern
statements Respondent’s agents made to Bru but rather com-
munications which Respondent allegedly had with the police in
GOLDEN STEVEDORING CO. 119
an attempt to have them arrest the union official. In dismissing
this allegation, my decision drew a distinction between asking
the police to investigate and asking the police to arrest. The
decision stated:
The Union was on strike against Respondent, and the record
establishes that at times, there were instances of misconduct
associated with the picketing. Asking the police to find out if
a union official had a legitimate reason for being on the Docks
in the vicinity of Respondent’s employees is quite different
from insisting that the police arrest this person regardless of
probable cause.
Significantly, the General Counsel had to present and rely on
different evidence to establish the allegations raised in the two
complaint paragraphs. To prove the allegations in complaint
paragraph 8(d), the Government elicited testimony from Bru
that Respondent’s employees had hand delivered the letters to
him. The General Counsel also introduced the letters into evi-
dence.
By comparison, to prove complaint paragraph 8(e), the Gen-
eral Counsel had to rely on evidence regarding a communica-
tion between Respondent and the police. To prove the facts
about this communication, the government had to present evi-
dence separate from the letters and testimony it offered to prove
complaint paragraph 8(d). Since the facts needed to establish
these two allegations were different, the evidence which Re-
spondent had to present to defend against these allegations had
to be different.
Moreover, the allegations of paragraphs 8(d) and (e) raised
different legal issues. To determine whether the General Coun-
sel had proven the violation alleged in paragraph 8(d), I had to
consider whether the recipient of the letters, Union Official
Bru, met the statutory definition of “employee,” and even if he
did, whether the statements in question constituted a violation
of Section 8(a)(1) of the Act.
On the other hand, to decide whether Respondent had vio-
lated the Act by the conduct alleged in complaint paragraph
8(e), I had to consider whether Respondent’s communication
with police constituted an attempt to have Bru arrested. Since
the two complaint paragraphs involved different legal issues,
Respondent had to defend against them separately.
Considering that the allegations in paragraphs 8(d) and (e)
required the proof of different facts and the application of dif-
ferent legal principles, I must conclude that they were signifi-
cantly different. Therefore, I reject the General Counsel’s ar-
gument that when Respondent prevailed on complaint para-
graph 8(e), it did not amount to prevailing in a significant and
discrete portion of the adversary proceeding.
For similar reasons, I conclude that in all instances in which
Respondent prevailed on the issues raised in a particular com-
plaint paragraph, that action constituted prevailing on a signifi-
cant and discrete substantive portion of the adversary proceed-
ing.
B. The “Substantially Justified” Issue
The General Counsel bears the burden of showing that, in
each instance in which Respondent prevailed, the Govern-
ment’s position had substantially justified. For the following
reasons, I find that to be the case.
In the underlying unfair labor practice case, in each and
every instance in which I determined that the General Counsel
had not proven a particular complaint allegation, I based that
conclusion in significant part on the credibility of the various
witnesses. My credibility resolutions were the decisive factor
with respect to most of these dismissed allegations. But even
when credibility was not the only reason for recommending
dismissal, it was an important factor.
For example, credibility was not the sole factor I considered
in recommending the dismissal of the allegations raised by
paragraphs 12 and 24 of the consolidated complaint, as
amended. Paragraph 12 alleged that “since about August 2,
1995, Respondent has reduced the work hours of its employees
by utilizing temporary employees to perform work previously
performed by bargaining unit members.” Paragraph 24 alleged
that “about August 2, 1995, Respondent changed its policy for
assignment of work at its facility thereby reducing the hours of
employment for bargaining unit members.” Other complaint
paragraphs alleged that these actions constituted unfair labor
practices.
To prove these allegations, the General Counsel partly relied
on statistical evidence based on Respondent’s records. My
decision found fault with the General Counsel’s methodology.
Obviously, my examination of the statistical evidence and my
conclusion that it was not reliable did not depend on deciding
whether a particular witness testified accurately.
However, my conclusions did not rest solely on problems
with the General Counsel’s statistical method. Even had I
found the statistical evidence reliable, it would not have been
sufficient, by itself, to carry the General Counsel’s burden of
proof. Thus, my decision stated:
[E]ven assuming that the payroll records relied upon by the
General Counsel did show an increase in the hours worked by
temporary employees, these documents do not describe what
the temporary employees were doing. The records indicate
that the temporaries did something, that Respondent kept
track of how much time they spent doing it, and presumably,
that Respondent was preparing to pay them for it. However,
the time records do not establish whether the temporaries
were performing bargaining unit work.
Rather, the General Counsel had to rely upon witnesses as
well as records. As discussed at some length in my decision,
on these particular issues, I did not find the testimony of the
General Counsel’s witnesses to be credible.
Moreover, in resolving these allegations, I particularly relied
upon the testimony of Respondent’s superintendent, Kenneth
Johnson. In explaining why I credited Johnson, my decision
described my impressions of Johnson’s demeanor as a witness.
It continued as follows:
Based on his testimony, as well as the absence of
credible testimony to the contrary, I find that Respondent
did not change the way it assigned temporary workers . . .
Similarly, I find that the government has not proven that
Respondent has reduced the hours of employment for bar-
gaining unit members.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD120
In other respects, my conclusions rested heavily on the
credibility of the witnesses. Had I credited the General Coun-
sel’s witnesses, their testimony might well have overcome the
ambiguities and vagueness of the documentary evidence.
Therefore, I conclude that the General Counsel’s decision to
litigate these issues had a reasonable basis in law and fact, and
was substantially justified.
My credibility determinations played a similarly important
role in deciding all allegations in which I found that the evi-
dence did not establish the violation alleged. In accordance
with David Allen Co., supra, I conclude that the General Coun-
sel’s decision to litigate these issues had a reasonable basis in
law and fact, and was substantially justified.
In view of this conclusion, I need not decide whether the ex-
tent to which Respondent cooperated, or did not cooperate, in
the precomplaint investigation affected the General Counsel’s
substantial justification in alleging particular matters in the
complaint.
CONCLUSIONS OF LAW
1. Respondent, Golden Stevedoring Co., Inc., is eligible to
receive fees and expenses under the Equal Access to Justice
Act and Section 102.143 of the Board’s Rules and Regulations.
2. Respondent prevailed in certain significant and discrete
substantive portions of the unfair labor practice proceedings in
this matter.
3. In all instances in which Respondent prevailed, the Gen-
eral Counsel was substantially justified in alleging and litigat-
ing the particular allegations in question.
Having concluded that the General Counsel has met the bur-
den of proving that his position in this proceeding was substan-
tially justified with respect to every allegation on which Re-
spondent prevailed, I issue the following recommended1
ORDER
The Respondent’s motion to withhold confidential financial
information from public disclosure, as amended, is granted.
The General Counsel’s motion to dismiss the Respondent’s
application for an Award of Allowable Fees and Expenses is
granted.
The Respondent’s Application for an Award of Allowable
Fees and Expenses is hereby dismissed.

1 If no exceptions are fled as provided by § 102.154 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in § 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.