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27 FLRA NO. 99

FEDERAL AVIATION ADMINISTRATION
WASHINGTON FLIGHT SERVICE STATION

               Activity

      and

NATIONAL ASSOCIATION OF AIR
TRAFFIC SPECIALISTS

               Union

Case No. O-AR-1309

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the supplemental award of Arbitrator Leon B. Applewhaite filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

In his initial award in this matter, the Arbitrator found that there was no just cause to suspend the grievant and awarded him backpay and benefits for the period of the suspension. The Arbitrator also granted attorney fees in the amount of $6,790.00. Upon the Agency's filing of exceptions to the Arbitrator's award, the Authority found that the award of attorney fees was deficient as contrary to the Back Pay Act. National Association of Air Traffic Specialists and Federal Aviation Administration Washington Flight Service Station, 20 FLRA 746 (1985). The Authority set aside the award of attorney fees because the Arbitrator failed to provide a fully articulated, reasoned decision setting forth his specific findings supporting the determination on each pertinent statutory requirement, including the basis on which he had determined the reasonableness of the amount of the award. Id. at 747-48.

The Union thereafter requested reconsideration, contending that the Authority should have remanded the case to the parties and directed them to seek a fully articulated determination from the Arbitrator as to the basis of his award, as opposed to setting the award aside. The Authority granted the request, rescinded its decision in FAA, Washington Flight Service Station, 20 FLRA 746, and remanded the case to the parties with directions to request the Arbitrator "to clarify and interpret his award of attorney fees to articulate fully specific findings on all pertinent statutory requirements." National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA No. 26, slip op. at 5 (1986).

Pursuant to the Authority's remand, the parties requested the Arbitrator to clarify and interpret his award. A hearing was held on the matter and the parties submitted post-hearing briefs. The Union's counsel, Mr. George M. Chuzi, supplemented his initial attorney fee request of June 4, 1985 for 67.9 hours and $100.81 in costs with an additional request for 23.4 hours and $94.01 in costs, which included expenses incurred after the initial fee application. After the hearing, counsel further supplemented his fee request to include an additional 14.5 hours and $57.84 in costs. Based on these requests, counsel claimed a total of 105.8 hours and $252.66 in costs.

The Arbitrator modified his initial award of attorney fees to comply with the Authority's remand and again found that counsel was entitled to 67.9 hours at the rate of $100.00 per hour. The Agency did not contest the hourly rate. As to the hours claimed by counsel after June 1985, the Arbitrator found that fees were justified only up to December 7, 1985 (the last date on which counsel performed work on the case before the Authority), and therefore reduced counsel's request for the additional 23.4 hours to 15.8 hours. The Arbitrator denied counsel's claim for costs of $100.81 included in the initial fee request, stating that these costs were "deleted as inclusive within the hourly rate adjusted." Arbitrator's decision at 7. He did not specifically address counsel's claim for costs of $94.01. Further, the Arbitrator did not award any fees or costs with respect to counsel's last request for an additional 14.5 hours. He awarded counsel $7,550.00 in attorney fees.

III. Exception

The Union contends that the portion of the Arbitrator's award denying fees and costs incurred litigating the Union's  entitlement to attorney fees is contrary to law. In particular, the Union contends that the Arbitrator's refusal to (1) compensate counsel for the hours expended after December 7, 1985 successfully defending the grievant's entitlement to fees, and (2) award costs for the "out-of-pocket" costs claimed by grievant is contrary to the Back Pay Act, 5 U.S.C. 5596, and 5 U.S.C. 7701(g). Additionally, the Union notes that the Arbitrator miscalculated the amount of the award. It states that the total of adding the additional 15.8 hours to the 67.9 hours awarded is 83.7 hours rather than the 75.5 hours awarded. The award would therefore be $8,370.00 rather than $7,550.00 as the Arbitrator calculated.

The Agency did not file an opposition to the Union's exception.

IV. Analysis and Conclusion

A. Whether the number of hours awarded by the Arbitrator is contrary to law

We find, in the circumstances of this case, that the Arbitrator's refusal to award attorney fees for hours expended by counsel after December 7, 1985 is contrary to law. As previously mentioned, the Authority remanded the case to the parties with directions to request "the Arbitrator to clarify and interpret his award of attorney fees" at issue in FAA, Washington Flight Service Station, 20 FLRA 746. In his award as clarified, the Arbitrator considered the issue of attorney fees and awarded fees for certain hours but did not award any compensation for hours expended by counsel after December 7, 1985. The Arbitrator provided no explanation with respect to his determination not to award counsel fees for work done on the case after this date, nor did he provide any reasons for his denial of counsel's request for an additional 14.5 hours.

The Authority has held that an arbitrator must carefully review the hourly rate and the number of hours claimed to have been expended; and that any reduction in the hourly rate or the number of hours awarded must be justified by detailed findings. See Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL - CIO, 21 FLRA No. 25, slip op. at 9 (1986). Here, the Arbitrator provided no reasons for his decision not to award counsel fees for hours contained in its supplemental fee requests.

Further, under applicable law a reasonable fee for work done in relation to a fee award is permitted. In LaMorge v. Department of Agriculture, 6 M.S.P.B. 125 (1981) and 15 M.S.P.R. 507 (1983), the Merit Systems Protection Board (MSPB) held that 5 U.S.C. 7701(g) permits attorneys to be compensated for time expended litigating a fee claim. See also Coltrane v. Department of the Army, 32 M.S.P.R. 6 (1986); Gavette v. Office of Personnal Management, 31 M.S.P.R. 115 (1986).

In this case, the Arbitrator awarded counsel fees for work done on the case only up to December 7. Therefore, to the extent that the award is premised on a finding that counsel is only entitled to fees up to this date, it is contrary to law since 5 U.S.C. 7701(g) permits counsel to be compensated for work done in relation to the fee award. In view of this, we grant the Union's exception concerning the hours awarded. Further, as the Arbitrator failed to provide any explanation with respect to the denial of these fees, we remand this portion of the award to the parties for the purpose of having the Arbitrator determine reasonable attorney fees for work done by counsel on this case after December 7, 1985, including any supplemental fee requests, submitted prior to or subsequent to the Union's exception to the Authority.

B. Whether the denial of costs in this case is contrary to law

The Arbitrator's denial of costs in this case is contrary to law. In Bennett v. Department of the Navy, 699 F.2d 1140, 1145 (Fed. Cir. 1983), the court stated that an award of attorney fees under 5 U.S.C. 7701(g)(1) should:

encompass those reasonable and necessary out-of-pocket expenses of providing a lawyer's services that are not covered by the hourly rate . . . that are routinely paid by counsel and billed to the client for services rendered, that are not taxable costs or prohibited by statute or authorized regulation, and that are not expenses incurred for the mere convenience of counsel (footnote omitted).

The court found that the MSPB properly allowed an award of attorney fees for telephone tolls, postage, and travel of counsel as those charges were directly related to services performed by the attorney, were not charges that were normally subsumed within the hourly rate, and could fairly be  described as part of the fee for services rendered. Bennett v. Dep't of the Navy, 699 F.2d at 1146. The court also found that photocopying costs are not recoverable under 5 U.S.C. 7701(g)(1). Id. See also Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL - CIO, 21 FLRA No. 25, slip op. at 12 (1986).

The Arbitrator rejected counsel's June 1985 attorney fee request for $100.81 in costs on the basis that such charges were "inclusive within the hourly rate as adjusted." Further, the Arbitrator provided no explanation for his denial of costs contained in counsel's supplemental fee requests. The fee agreement between grievant and counsel specifically provides that "the hourly rates do not include out-of-pocket expenses." (See attachment to Union exception, "Fee Agreement," paragraph 3.) As out-of-pocket expenses were clearly excluded from the hourly rate and these expenses are recoverable under 5 U.S.C. 7701(g)(1), we find that the Arbitrator's disposition of the June 1985 request for costs is deficient as contrary to section 7701(g)(1) and must be modified.

Counsel claimed $100.81 in costs for work done on the case to June 1985. These costs included copying ($48.11), postage ($5.28), long distance calls ($35.42), and typing ($12.00). As discussed above, postage and telephone tolls are permitted under 5 U.S.C. 7701(g)(1), and photocopying costs are not. In view of this, we will modify the award to grant the request for fees relating to postage and telephone tolls. However, we do not find any basis to modify the award to grant the request for photocopying costs. Further, we view typing as a secretarial expense which is included in the hourly rate. We therefore deny this claim. See Bennett v. Dep't of the Navy, 699 F.2d at 1145 n.5. Accordingly, we will modify the award to grant counsel $40.70 for costs requested in the initial fee application of June 1985.

As to counsel's request for costs relating to work done on the case after June 1985, consistent with our decision in part A, we also remand this portion of the request to the parties for the purpose of having the Arbitrator determine reasonable costs to be awarded counsel, since the Arbitrator only addressed costs contained in the initial fee application.

V. Decision

The Union's exception concerning the Arbitrator's award with respect to hours and costs claimed by counsel is granted. For the reasons set forth above, the portion of the award pertaining to: (1) hours requested by counsel after December 7, 1985, and (2) costs requested by counsel after June 1985 is hereby remanded to the parties. The parties are directed to request, jointly or separately, the Arbitrator to consider these requests along with any additional supplemental fee request that may be submitted by counsel for work done on this case and to determine the reasonableness of these requests.

Further, as to the remaining portion of the award we will modify the amount to include 83.7 hours, as corrected, at the rate of $100.00 per hour, plus $40.70 for costs related to the initial application, for a total of $8,410.70. Accordingly, the Arbitrator's award is modified to provide as follows:

Pursuant to the Back Pay Act, 5 U.S.C. 5596(b)(1)(A)(ii), Mr. Chuzi's, counsel for the Union, request for attorney fees is hereby granted in the amount of $8,410.70.

Issued, Washington, D.C., June 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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