AGENCY ATTORNEY FEE ASSAULT SHIFTS INTO OVERDRIVE
It is no secret that agencies are pushing harder than ever to reduce the costs of collective bargaining, and one of the most aggressive assaults is against a union rep’s right to get attorney fees when s/he wins a case yielding almost any kind of back pay. That effort has shifted into high gear with the circulation inside the management LR community of a 20-page PowerPoint outlining how to attack fees and a couple of cases now before the FLRA that will give it a chance to plunder precedent at the unions’ expense, which seems to be its current raison d’etre. Among the management bargaining table likely demands are the following:
- Force negotiating unions to choose between more official time for local officers and stewards versus attorney fees for staff. Agencies will demand that unions make a choice, not that they waive anything.
- Bar consideration of any version of the so-called Laffey Matrix, which can pay an employee’s attorney up to $894 an hour. Force the union to provide more tangible evidence or to use survey data.
- Make fee disputes non-grievable beyond a certain dollar and hour figure.
- Tie the reasonableness of a rate and hours expended to what the arbitrator charged.
- Add extra procedural requirements to a fee petition.
- Force the union to reveal the income and expenditures of its litigation fund to assess its legality before the union is given market rate versus cost-plus fees.
- Limit the “years of experience calculation” to years as a practicing, barred attorney performing primarily employment law.
- Clarify what it means to be the prevailing party for purposes of attorney fee success.
- Get union agreement that time spent on unsuccessful arguments or those not ultimately relevant not be compensable.
The courts and MSPB have not been very sympathetic to agency arguments against attorney fees. But now agencies are being advised to pursue change via the bargaining table where President Trump’s FSIP will make the final decisions. The issues have always been negotiable; it has only recently been recognized in agency LR circles that the bargaining table offers their greatest opportunity for success.
Consequently, and this is the bottom line of this post, unions need to develop counter-arguments and a broader counter-strategy concerning fees. That will require them to address the question, “Which is more important—fees or benefits for members and local reps?
The best union negotiation shops are identified by how they perform during the White House anti-union years, not the other times. Now is the time for them to show just how good they are behind the wheel.