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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.