Adams & Westlake

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 470 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams & Westlake, Ltd., a wholly owned subsidiary
of Midwest Management Corporation and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, and its Local Union No. 1367. Case 25-
CA-15316(E)
31 July 1984
ORDER DENYING PETITION FOR
RULEMAKING
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
Pursuant to the general provisions of the Equal
Access to Justice Act, Pub. L. 96-481, 94 Stat.
2355 (1980), and specifically Sections 102.124 and
102.146 of the National Labor Relations Board
Rules and Regulations, Adams and Westlake, Ltd.,
a wholly owned subsidiary of Midwest Manage-
ment Corporation, the Respondent, filed a petition
on 22 June 1984 "to Amend Rule on Maximum
Rates for Attorneys' Fees" and increase fees pay-
able to its firm of attorneys from $75 per hour to
$81.54 per hour.
The petition alleges, in pertinent part, that the
S75-per-hour permitted fee does not allow the Re-
spondent's counsel to recover fees based on the
present value of $75 in 1981 dollars determined by
changes in the Consumer Price Index (CPI). The
Respondent contends that such a change would be
reasonable considering its view that the prevailing
rate for similar services has increased at a faster
rate than the CPI.
The Equal Access to Justice Act was enacted on
21 October 1980 with an effective date of 1 Octo-
ber 1981, the same effective date as the pertinent
Board Rules. The Act and the Board's Rules
permit eligible parties that prevail in litigation
before the Agency and over the Agency in Federal
court, in certain circumstances, to recover litiga-
tion fees and expenses from the Agency. The Act,
5 U.S.C. § 504(b)(IXA), provides that "attorney or
agent fees shall not be awarded in excess of $75 per
hour, unless the Agency determines by regulation
that an increase in the cost of living or a special
factor, such as the limited availability of qualified
attorneys or agents for the proceedings involved,
justifies a higher fee." Section 102.145 of the
Board's Rules limits recoverable fees to $75 per
hour, and Section 102.146 provides that any peti-
tions to increase fees should state why higher fees
are warranted by an increase in the cost of living
or a special factor such as the limited availability of
qualified attorneys or agents for the proceedings in-
volved.
The Board has not tied fees awardable to the
CPI, preferring to adhere to the statutory rate. [In
any case, we understand informally that attorneys'
fees are not a component of the CPI.] Therefore,
we decline, at this time, to grant the petition for
rulemaking to tie attorney fees awardable under the
Act to the CPI.
Based on the Equal Access to Justice Act and
the applicable Rules and Regulations of the Board,
it is ordered that the petition requesting the Board
to engage in rulemaking for the purpose of raising
agent or attorney fees recoverable pursuant to the
Equal Access to Justice Act and Section 102.145 of
the Board's Rules is hereby denied.
271 NLRB No. 81
470