FLRA INVITES UNION ATTORNEYS TO EXPAND THEIR ENTITLEMENT TO FEES
One of the sweeter benefits for unions is that they are often entitled to receive attorney fees when they win back pay for an employee. When unions win fees they get reimbursed two, three and four times what it cost the union to employ a staff attorney for those hours, namely, salary and benefit costs. It is a very, very nice profit pipeline. Beyond that, attorney fee awards enable unions to free up money they were going to spend on staff attorneys from the annual budget of member dues to devote to other projects. The fees cover the legal staff’s costs and the previously budgeted costs for legal staff can then be redirected into election campaigns, organizing, nicer office space, enhanced travel benefits, etc. We recently saw a post-arbitration settlement document giving a union $2 million in fees. Consequently, it is major news when FLRA announces that it is willing to expand union entitlement to fees beyond the criteria that have been in place for almost three decades.
The FLRA invitation egging unions on to establish additional grounds for fees came in a case titled, NAIL, Local 5 and DOD, DLA, TX, 69 FLRA 573 (2016). The Authority had just finished applying the five so-called Allen factors which are used to determine whether fees are in the “interest of justice.” Having found that the union’s fee request did not meet any of them, the Authority then said,
However, we note that, to the extent that the Authority has sometimes implied that attorney fees are warranted only if they satisfy one of the five Allen factors, that is inconsistent with Allen itself. As Allen itself states, the factors are “not exhaustive, but illustrative,” and are not intended to serve as a “litmus … test[ ] for award or denial of attorney fees. Rather, these examples should serve primarily as directional markers toward `the interest of justice.”‘ Further, taking into account the very different purposes for which Congress established the Authority and the MSPB, we believe that it may be time — in an appropriate case — to reconsider our nearly exclusive reliance on the Allen factors in this area and to fashion interest-of-justice guidelines that are better adapted to the collective-bargaining context and to the types of cases that the Authority is called upon to review.
Consequently, we hope the word has gone out from union General Counsels that whenever staff petition for fees and are not virtually certain that they satisfy one of the Allen criteria they should be putting forth additional grounds that establish fees are in the interest of justice, the core statutory criterion.
