REMEMBER, LAFFEY IS NOT ENOUGH
A good attorney working for a union cannot only make arbitrations virtually cost free, but also build up a sizeable litigation fund for the union when bigger threats appear—if they know how to properly petition for attorney fees. Moreover, fee awards can be a LM relationship altering moment for an agency if the fees awarded are many times the amount of the employee’s back pay award. Imagine an LR Specialist having to tell some executive the following: “Remember that overtime case I advised you not to settle? Well, we lost the arbitration and will have to pay the employees $60.00 in back pay. And I might as well be the one to tell you that in addition to the $60.00 we tried so hard to avoid paying, the arbitrator gave the union $56,000 in fees?” Agency executives are quickly catching on to the fact that attorney fee awards can cost many, many times the grievant’s back pay check. That alone should motivate LR and SES folks to be far more open to settlements short of arbitration. But it is also driving them to get term contract provisions limiting fee exposure. Consequently, it worth focusing on the various parts of getting attorney fees.
Unions should expect agencies to soon roll out term contract proposals seeking to contain, restrain, and disdain employee and union right to fees. The FSIP is just too sympathetic to management right now to pass up the opportunity to reduce union subsidies.
A quick look around the federal sector shows that too many unions are trying to rely solely on the Laffey Matrix and similar Department of Justice scales to prove what the hourly market rate for attorneys is. These benchmarks recommend very high hourly wage reimbursements for attorneys, e.g., over $800 an hour for some attorneys. However, in our humble opinion, an arbitration award that orders a certain hourly reimbursement fee solely based on the Laffey Matrix as evidence is very, very likely to get overturned by FLRA. The same goes for unions facing an agency proposal that no DOJ matrix or benchmark be considered in setting hourly market rates for attorneys. Unions will lose a bargaining table fight if they simply counter that the Laffey Matrix is enough.
Unions can expect agency negotiators to point to MSPB precedent which holds that, “The Board has never found that the Laffey Matrix, by itself, supports a finding that a specific hourly rate claimed is reasonable. Martinez v. U.S. Postal Service, 89 M.S.P.R. 152 (2001); Gensburg v. Department of Veterans Affairs, 85 M.S.P.R. 198(2000).”
Finally, agencies will undoubtedly argue that private attorneys who face DOJ lawyers operate at a far more complex level than the average union attorney doing an arbitration. For example, DOJ attorneys usually work only in courts before Federal judges or juries while arbitrations have almost none of the procedural complexity of a courtroom and can be presented by non-attorneys to non-attorneys.
Aside from agency demands barring any consideration of a DOJ Matrix or fee recommendation, unions should be prepared for what agencies propose in place of DOJ input. One option would be a rigorous process for gathering comparable market rate data, and another would be to tie the rate to market surveys of hourly attorney fee rates. Attorney salary surveys can be found at, among other places:
A third agency tactic is likely to be to link union attorney hourly rates to whatever the arbitrator, often an attorney, charges. The word is out there in agency circles that the arbitrator’s hourly rate is very defensible piece of evidence as to what comparable attorneys charge in precisely that market.
Union negotiators had better prepare themselves to deal with this issue at the bargaining table over the next three years. Agencies are going to see this as an easy way to make arbitration more costly for the union and save gobs of agency cash. For example, imagine the joy on the agency side of the bargaining table when it offers the union a deal that offers the union a reasonable official time article, but only if it will renounce the right to fees or at least accept a highly restrictive fee process.