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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
                                            Case No. 0-AR-822
                                            (21 FLRA No. 107)
    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.