United States Department of Veterans Affairs, Central Texas Veterans Health Care System, Temple, Texas (Agency) and American Federation of Government Employees, Local 2109 (Union)

 
65 FLRA No. 186                                                         
                                               
UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
CENTRAL TEXAS VETERANS
HEALTH CARE SYSTEM
TEMPLE, TEXAS
(Agency)
 
and
 
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2109
(Union)
 
0-AR-4709
 
_____
 
DECISION
 
May 31, 2011
 
_____
 
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
 
I.     Statement of the Case
 
        This matter is before the Authority on an exception to an award of Arbitrator Charles R. Greer filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exception.         
 
        The Arbitrator directed the Agency to pay the Union attorney fees. For the reasons that follow, we deny the Agency’s exception. 
 
II.    Background and Arbitrator’s Award
 
        In his initial award dated September 17, 2010,[1] the Arbitrator, among other things, directed the Agency to pay the Union’s attorney fees, “if allowed by federal regulations[.]” Initial Award at 9. On October 12, the Union submitted an “Application for Attorney’s Fees” to the Arbitrator. Exception, Attach. at 21-40. As part of its application, the Union included the following items: (1) an affidavit from its attorney regarding his education, experience and current market rates; (2) an invoice of fees and costs; and (3) a statement of the prevailing market rate for similar work. Id. The invoice submitted by the Union reflected 44.5 total hours worked, including 36.5 hours spent on the case prior to the four-hour, three-witness hearing. Id. at 28-29. Just twelve days later, on October 24, the Arbitratorissued the following one sentence order (Attorney Fee Award): “After reviewing the Union’s October 12, 2010 application for attorney’s fees and attached documents, I find the application to be reasonable and supported by the facts, and hereby direct the Agency to pay the Union the sum of $15,048.46.” Attorney Fee Award at 1. 
 
        On October 26, the Union notified the Arbitrator that the Agency was “not in compliance with [his] award” because, among other things, the Agency had failed to pay the attorney fees. Exception, Attach. at 46. In response, the Agency contended that the fees submitted by the Union were “excessive and violate[d] Title 5 statu[t]e 2430.4.”[2] Id. at 44. According to the Agency, the requested fees were based on a $320 hourly rate, which exceeds the statutory hourly maximum of $125. Id. at 45. Moreover, the Agency argued that the amount of the attorney fees awarded was inconsistent with the arbitration award. Id. In this regard, the Agency asserted that: (1) it continues to make the same payments as before the award; (2) the Union’s attorney is an appellant representative of the Union and is compensated by the Union “for services rendered;” and (3) “the fees submitted far exceed the arbitration expenses for both parties.” Id. The Union replied that 5 C.F.R. § 2430.4 did not apply to this case. Rather, the Union argued, “attorney fees in arbitration are set in accordance with local market rates, which were fully documented” in the Union’s application. Id. at 42. 
 
        The Arbitrator first found that 5 C.F.R. § 2430.4 was not relevant and that the parties’ agreement “allows for reasonable attorney fees.” Attorney Fee Award at 41. The Arbitrator then determined that the amount of fees requested by the Union was reasonable because the fees were based on average local fee data. Id. 
 
III. Positions of the Parties
 
        A.    Agency’s Exception
 
        The Agency contends that the award of attorney fees is contrary to law, rule or regulation. Exception at 4. The Agency notes that it is “not disput[ing] the [A]rbitrator’s authority to award attorney fees,” but, rather, is contesting “the reasoning [the Arbitrator] used to justify the excessive amount awarded.” Id. The Agency contends that, contrary to the Arbitrator’s award, 5 C.F.R. § 2430.4 is relevant and provides “guidance on how to determine appropriate attorney fee amounts.” Id. Referring to that regulation,the Agency argues that the amount of fees awarded is inconsistent with the complexity of the arbitration. Id. According to the Agency, the attorney invoice submitted by the Union is not justified by a “one day, 4 hour” arbitration,