HAS FLRA TAKEN SEMI-USEFUL POSITION ON ATTORNEY FEES?
Kiko and Abbott just ruled against a union in attorney fee matter that ironically might help other unions down the road. To being with, they approved an arbitrator’s conclusion that the union was entitled to 140 hours of compensable fees for a hearing over a 14-day suspension. Frankly, that seems to be reasonable for a hearing that lasted two days, especially given the obvious contempt Kiko and Abbott have for anything a union or an employee claims. So, this might be a good benchmark for parties to focus on in futures fee settlement discussions or when assessing (or arguing for) their own fee requests. But, there is even more to the decision that might help unions.
FLRA requires that arbitrators ruling on attorney fee requests must find, “that the statutory requirements for an award of attorney fees were met.” That begs the question of what it means to “find.” In fact, it is a HUGE question because the word is so vague that Kiko and Abbott are free to attach any meaning to it they want. It would not surprise us if they required an arbitrator demand a minute-by-minute video tape of the attorney preparing for the hearing to justify a claim. Oddly, they accepted the following statements by the arbitrator as adequate “findings” to sustain the award:
- This was this was a 14-day suspension case
- The requested original fee request was “extravagant” and “not reasonable”
- “[t]he length of the [Union’s post-hearing briefs] and the time devoted to them [was] not reasonable”
- “the investigative file was only 247 pages.
If you are saying to yourself, those are not findings, you are correct. Two are obviously unsupported conclusions drawn from thin air and the other two are observations a simpleton could make. None even approaches being a legal conclusion based on evidence. Dubester, being the only adult in the room when it comes to the law, pointed that out in his dissent. But it does not matter to Kiko or Abbott. They took the FLRA jobs to punish unions for being on the wrong side of the political divide that their own cult occupies. It is not about principles for them, but payback. They have shown almost zero interest in improving the quality of the legal criteria and precedents that guide tens of thousands of union and management officials every day.
It would be nice to know that when an agency challenges a union win in a future attorney fee case that the union can defend the decision by comparing the arbitrator’s “findings” to those Abbott and Kiko relied on here. However, we have no doubt that they will conveniently forget about what they wrote here and find some reason to overturn that arbitrator. As we said, with these two it is not about integrity, it is about settling a score. We are going to watch to see how long it takes them to do a 180 on what constitutes a “finding.” However, if they stick with the so-called findings they relied on here, unions should do very well.
See AFGE, Local 2002 and DHS, 70 FLRA 812 (2018)