Landmark Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1985

276 N.L.R.B. 1468 (N.L.R.B. 1985)

1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Landmark Industries , Inc. and Upholsterers ' Inter-
national Union of North America, Local 15,
AFL-CIO. Case 21-CA-22391(E)
16 October 1985
ORDER DENYING PETITION TO
INCREASE THE MAXIMUM RATE FOR
ATTORNEYS' FEES
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
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,
102.145, and 102.146 of the National Labor Rela-
tions Board Rules and Regulations, Landmark In-
dustries, Inc. (the Respondent) filed a petition on
23 July 1985 to increase fees payable to its firm of
attorneys, from the $75 per hour presently permit-
ted under Section 102.145 of the Rules to a rate of
$175 for one attorney and $100 for another attor-
ney.1
The petition alleges, in pertinent part, that the
$75-per-hour permitted fee should be increased to
allow the Respondent's counsel to recover the
"actual hourly rate incurred." The Respondent
contends that the fees should be raised in light of
the increase in the cost-of-living ' index, because of
the "limited availability of qualified attorneys or
' An alternative figure sought in the petition is $91 14, for both attor-
neys, based on consumer price index change extrapolation
agents," and because "this is a case that clearly
never should have been brought."
The Equal Access to Justice Act2 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 re-
cover litigation fees and expenses from the
Agency. The Act, 5 U.S.C. § 504(b)(1)(A), pro-
vides 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 re-
coverable fees to $75 per hour, and Section 102.146
provides that any petitions to increase the maxi-
mum rate for 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 finds that under the Equal Access to
Justice Act and existing Board Rules no larger fee
is warranted and that rulemaking to increase the
agent and attorney fees is unwarranted at this time.
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 increase the maximum rate for attorneys' fees is
denied.
2 See 5 U.S C. § 504, as amended by Pub L. 99-80, 99 Stat 183 (Aug.
5, 1985)
276 NLRB No. 166