Roy Spa, LLC,

Docket Number19-CA-083329

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Roy Spa, LLC and International Brotherhood of

Teamsters, Local 2. Case 19–CA–083329

July 27, 2017

SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MISCIMARRA AND MEMBERS

PEARCE AND MCFERRAN

On July 12, 2016, Chief Administrative Law Judge Robert A. Giannasi issued the attached supplemental decision.1 The Applicant filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Applicant filed a reply.2

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.3

ORDER

The recommended Order of the administrative law judge is adopted and the application of Roy Spa, LLC, for attorneys’ fees and expenses under the Equal Access to Justice Act is denied.

Dated, Washington, D.C. July 27, 2017

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

1 The judge issued an errata on July 20, 2016.

2 The Applicant’s request for oral argument is denied as the record and the briefs adequately present the issues and the positions of the parties.

3 Our dissenting colleague agrees that the General Counsel’s position as a whole in the underlying case was substantially justified, and that the EAJA application at issue would properly be dismissed on the merits. He nevertheless dissents from dismissal on the ground that the judge, in his view, abused his discretion by excusing the General Counsel’s untimely filing of his motions for extension of time and to dismiss the EAJA claim. The Board, however, fully addressed the issues presented by those filings in Roy Spa, LLC, 363 NLRB No. 183 (2016). Member McFerran did not participate in that decision, but, applying the decision as the law of this case, she agrees to deny the Respondent’s application.

CHAIRMAN MISCIMARRA, dissenting.

This case, which arises under the Equal Access to Justice Act (EAJA),1 has a somewhat complicated procedural history. The complaint alleged that Roy Spa, LLC (the Respondent in the original case, and presently the Applicant seeking a recovery of attorneys’ fees and expenses under EAJA) was a legal successor to predecessor Old Fashioned Barber with respect to its operations at Malmstrom Air Force Base in Montana. The complaint further alleged that Roy Spa, as a legal successor, violated Section 8(a)(5) and (1) of the National Labor Relations Act by making certain unilateral changes in employees’ terms and conditions of employment without giving the Union notice and an opportunity to request bargaining. Administrative Law Judge Michael A. Marcionese dismissed the complaint on the basis that the Board lacked jurisdiction over Roy Spa. Because he held that the Board lacked jurisdiction, Judge Marcionese did not reach the merits of the alleged unfair labor practices (ULPs) attributed to Roy Spa.

Here is where this case, procedurally, gets more complicated.

Complication #1: After the case was dismissed, Roy Spa filed an EAJA application, and the EAJA application was referred to Judge Marcionese.

Complication #2: The General Counsel filed an untimely motion to dismiss the EAJA application, after filing an untimely motion for an extension of time to file the (untimely) motion to dismiss; the judge granted the extension of time and accepted the General Counsel’s untimely motion to dismiss.

Complication #3: In his supplemental decision, Judge Marcionese granted the General Counsel’s untimely motion to dismiss the EAJA application. According to Judge Marcionese, the General Counsel’s position that the Board had jurisdiction, though incorrect, was substantially justified. However, Judge Marcionese did not address whether the ULP allegations were also substantially justified (i.e., Roy Spa’s alleged violations of Section 8(a)(5) and (1) based on its alleged status as a “successor”).

Complication #4: The Board then reviewed Judge Marcionese’s rulings. The Board majority agreed with Judge Marcionese that the General Counsel’s incorrect position regarding the existence of NLRB jurisdiction was nonetheless substantially justified, but the majority concluded that the General Counsel’s motion to dismiss

1 5 U.S.C. § 504 et seq. EAJA entitles certain prevailing parties (other than the government) in litigation before a Federal agency to an award of attorneys’ fees and expenses unless the position of the agency was substantially justified or special circumstances make an award unjust.

365 NLRB No. 114

2

could not be granted without an additional finding that the ULP allegations were also substantially justified. Roy Spa, LLC, 363 NLRB No. 183, slip op. at 4–5 (2016) (Roy Spa I). Accordingly, the majority remanded the case so this additional question could be resolved in the first instance by the judge. Id., slip op. at 5. However, regarding the untimeliness of the General Counsel’s motion to dismiss (and the untimeliness of the General Counsel’s request for an extension of time to file the motion to dismiss), the Board majority upheld the judge’s rulings in favor of the General Counsel, and the majority also allowed the General Counsel to file an answer to the EAJA application. Id., slip op. at 2–4, 5 fn. 17. At times, I have favored leniency when parties fail to comply with Board-imposed deadlines; but for the reasons explained in my dissenting opinion, id., slip op. at 5–8, I dissented from the acceptance of the General Counsel’s untimely motion to dismiss and the untimely request for an extension of time to file the motion to dismiss, as well as from the decision to allow the General Counsel to file an untimely answer.

Complication #5: On remand, Administrative Law Judge Robert A. Giannasi answered the question that Judge Marcionese had left unaddressed—namely, whether there was substantial justification for the allegations that Roy Spa was a legal successor and had violated Section 8(a)(5) and (1). Judge Giannasi concluded that both allegations were substantially justified. In fact, he found that “the violations would probably have been established had the General Counsel succeeded on the jurisdictional issue.” Therefore, Judge Giannasi held that the General Counsel’s complaint as a whole (i.e., as to both jurisdiction and the ULP allegations) was substantially justified, even though the case against Roy Spa was dismissed for lack of jurisdiction. Accordingly, Judge Giannasi dismissed Roy Spa’s EAJA application.

At present, the Board has before it only complication number 5: Judge Giannasi’s ruling that the General Counsel’s successor and ULP allegations against Roy Spa were substantially justified, warranting dismissal of the EAJA application. As to these issues, my colleagues agree with Judge Giannasi, and were I to consider the current record before the Board, so would I.2

Although I would agree that the General Counsel’s position regarding Roy Spa’s alleged successor status is substantially justified, I believe Judge Giannasi overstated the strength of the General Counsel’s case on the mer

2 I would also agree that the General Counsel’s position regarding the existence of Board jurisdiction was substantially justified for the reasons stated by Judge Marcionese in his supplemental decision, even though Judge Marcionese ultimately found that jurisdiction did not exist.

its as to Roy Spa’s alleged successor status, which is the basis for the alleged violations of Section 8(a)(5) and (1). The record creates a reasonable question whether Roy Spa had a substantial and representative complement of...

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