23:0411(59)AR - IRS, Baltimore District Office and NTEU and NTEU Chapter 62 -- 1986 FLRAdec AR
[ v23 p411 ]
The decision of the Authority follows:
23 FLRA No. 59 INTERNAL REVENUE SERVICE BALTIMORE DISTRICT OFFICE Activity and NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 62 Union Case No. 0-AR-822 (21 FLRA No. 107) ORDER This matter is before the Authority at this time on requests filed by the Union asking the Authority to issue a general statement of policy or guidance on the issue of whether a labor organization is entitled to market value attorney fees where the fees received are paid into a separate litigation account used solely for litigation purposes and seeking reconsideration of the Authority's decision of May 22, 1986, modifying the Arbitrator's award in this case. /1/ In his supplemental opinion and award, /2/ the Arbitrator determined that attorney fees were warranted in the interest of justice for the legal services rendered in conjunction with certain allegations giving rise to the underlying grievance. The Arbitrator granted the Union's application for attorney fees in part and ordered that the Union be compensated for the allowable time at an hourly rate at or near the prevailing rate of legal compensation in the locality. In its exceptions to the supplemental award, the Activity argued, among other things, that the Arbitrator's supplemental award of attorney fees to the Union at the prevailing private practice rate was contrary to law as enunciated by the Federal courts and the Merit Systems Protection Board. The Authority held, based upon its decision in Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA No. 25 (1986), that because the attorneys who represented the grievant were employees of the Union, attorney fees for their services could only be awarded on a cost-plus basis and modified the Arbitrator's award accordingly. In support of its requests, the Union essentially argues that its maintenance of a litigation fund separate from the general treasury eliminates the potential for unethical fee splitting and that therefore the Union is entitled to recover attorney fees calculated at the prevailing market-value rate. Section 2427.5 of the Authority's Rules and Regulations provides that in deciding whether to issue a general statement of policy or guidance, the Authority shall consider, among other things, whether the question presented can more appropriately be resolved by other means. In this case, the Authority finds that the issue presented by the Union in its request can be, and was, more appropriately resolved through case processing procedures and is therefore unsuitable for resolution by issuance of a general statement of policy or guidance. Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. Here, however, the Union has not established "extraordinary circumstances" within the meaning of section 2429.17. Rather, the arguments presented by the Union in support of its request essentially constitute nothing more than disagreement with the merits of the Authority's decision and an attempt to relitigate the matter. Accordingly, the Union's requests for reconsideration and for a general statement of policy and guidance are denied. Issued, Washington, D.C., September 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union incorporates by reference the brief in support of its request for a general statement of policy or guidance into the record to support its request for reconsideration. (2) The underlying grievance in this case concerned the 10-day suspension of the grievant for alleged failure to process tax remittance and tax returns in a timely manner. The Arbitrator sustained the grievance and left the record open to permit the parties to file briefs on whether reasonable attorney fees should be granted pursuant to the Back Pay Act, 5 U.S.C. Section 5596. The Union filed an application for an award of fees and the Arbitrator ruled on the application in a supplemental opinion and award.