Van Der Vaart, Inc. And Sheboygan Concrete Corp.

802 VAN DER VAART, INC. Van Der Vaart, Inc. and Sheboygan Concrete Corp., Joint Employers and Drivers, Warehousemen, Warehouse and Dairy Employers , Local 75, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 30-CA- 10157(E) September 29, 1989 ORDER DENYING PETITION FOR RULEMAKING BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY Pursuant to Section 102.124 of the National Labor Relations Board Rules and Regulations, on August 25, 1989, the Respondent, Van Der Vaart, Inc., petitioned the Board to increase the maximum amount of attorney fees and expenses recoverable under the provision of the Equal Access to Justice Act (EAJA) and the Board's Rules from the cur- rent rate of $75 per hour to the actual rates billed to the Respondent during the course of the under- lying unfair labor practice proceeding , i.e., $80, $85, $95, $ 110, and $175 per hour." The petition alleges that such an increase is war- ranted for two reasons : ( 1) because there has been a 26.6-percent rise in the cost of living between October 1981, the effective date of EAJA's enact- ment, and October 1988; and (2) because the Gen- eral Counsel's actions in pursuing the underlying complaint and refusing to stipulate to certain facts regarding which the Respondent's attorney was a necessary witness forced the Respondent to hire a second law firm at higher rates. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Equal Access to Justice Act provides that attorney fees shall not be awarded in excess of $75 per hour "unless the agency determines by regula- tion that an increase in the cost of living or a spe- cial factor, such as the limited availability of quali- fied attorneys or agents for the proceedings in- volved, justifies a higher fee." 2 Having duly con- sidered the matter, we find that the allegations in the Respondent's petition are insufficient to justify an increase on either of these grounds . First, al- though the Respondent alleges that there has been a 26.6-percent rise in the cost of living since EAJA's enactment in 1981 , we do not believe that this alone requires us to increase the $75 hourly rate by a corresponding amount. We note in this regard that Congress, in reenacting EAJA on August 5, 1985,3 did not itself increase the $75 hourly rate despite the rise in the cost of living during the preceding 4-year period. Second, we find that the Respondent's claim that it was forced to retain a second law firm at higher rates, does not, without more, constitute a "special factor" that would justify an increase in the maximum $75 hourly rate. The Supreme Court has indicated that the "special factor" exception is to be applied nar- rowly; that an increase is not justified under the ex- ception merely because lawyers generally are in short supply or because the prevailing market rate for the tendered legal services is higher than the maximum rate.4 As the Respondent here has failed even to specify what necessitated the payment of higher rates to the second law firm, application of the exception is clearly unwarranted. Accordingly, the petition is denied. ' The Respondent 's application for fees and expenses incurred in the underlying unfair labor practice proceeding was filed simultaneously with the instant rulemaking petition By order dated August 28 , 1989, the Board referred the application to the Chief Administrative Law Judge for further appropriate action 2 5 U.S.C § 504(b)(t)(A) See also Secs. 102.145(b) and 102.146 of the Board's Rules and Regulations. 8 See Pub L 99-80, 99 Stat 183 (Aug. 5, 1985) 4 See Pierce Y. Underwood, 108 S Ct 2541, 2553-2554 ( 1988) (interpret- ing identical provision in 28 U S C § 2412(d)(2)(A). 296 NLRB No. 99