NLRB V. AMPERSAND PUBLISHING, LLC, No. 21-71060 (9th Cir. 2022)
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This appeal presents the question of whether the National Labor Relations Board (“NLRB” or “Board”) may order an employer to reimburse a union for legal fees incurred during the contract bargaining process. The Ninth Circuit held that it may, and granted the NLRB’s petition for enforcement of its compliance order.
The Board found that the employer engaged in unusually aggravated misconduct sufficient to warrant more than a traditional remedy, and ordered the employer to reimburse the union for the costs and expenses the union incurred during collective bargaining sessions. On appeal, the D.C. Circuit upheld the Board’s findings and enforced its orders in full. The parties could not reach an agreement on the total amount the employer should be required to pay in remedies, and in July 2018, the Regional Director for NLRB Region 27 issued a compliance specification detailing how much the employer owed.
The court rejected the employer’s argument that D.C. Circuit precedent established that the Board lacked the power to order the reimbursement of legal fees. The court held that the D.C. Circuit’s opinions were specifically limited to the context of litigation, and they did not bar the award at issue here. The National Labor Relations Act grants the Board broad discretion to impose remedies for unfair labor practices. The court held that the award of legal fees, in this case, was exactly the sort of remedy that courts have upheld as within the Board’s statutory remedial authority.
Court Description: National Labor Relations Boars / Fees. The panel granted the National Labor Relations Board’s petition for enforcement of its compliance order requiring an employer to reimburse a union for legal fees incurred during the collective bargaining process. The Board found that the employer engaged in unusually aggravated misconduct sufficient to warrant more than a traditional remedy, and ordered the employer to reimburse the union for the costs and expenses the union incurred during collective bargaining sessions. On appeal, the D.C. Circuit upheld the Board’s findings and enforced its orders in full. The parties could not reach an agreement on the total amount the employer should be required to pay in remedies, and in July 2018, the Regional Director for NLRB Region 27 issued a compliance specification detailing how much the employer owed. After the employer responded to the * The Honorable D. Brooks Smith, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. NLRB V. AMPERSAND PUBLISHING 3 specification, the Board granted the Board’s General Counsel’s motion for partial summary judgment. On remand, an administrative law judge granted the full amount of claimed costs and expenses incurred by the union during bargaining. The Board applied to this court for enforcement of its compliance order. The union incurred legal fees for consultations with its outside counsel during contract negotiations, and the Regional Director included those fees in the compliance order as part of the bargaining expenses for which the employer was required to reimburse the union. The panel rejected the employer’s argument that D.C. Circuit precedent established that the Board lacked power to order the reimbursement of legal fees. The panel held that the D.C. Circuit’s opinions were specifically limited to the context of litigation, and they did not bar the award at issue here. The National Labor Relations Act grants the Board broad discretion to impose remedies for unfair labor practices. The panel held that the award of legal fees in this case was exactly the sort of remedy that courts have upheld as within the Board’s statutory remedial authority. Prior adjudications established that the employer committed an unfair labor practice by refusing to bargain with the union in good faith. The remedy was directly targeted at the employer’s violation. Notably, the Board’s compliance order included only those legal fees incurred during collective bargaining. The bargaining process involved only the employer and the union, with no active participation by Board officials. The fact that attorney Ira L. Gottlieb was a lawyer who at time represented the union in litigation before the Board did not mean that his fees incurred in the collective bargaining process must automatically be considered litigation expenses, without any consideration of the actual work he was paid to perform. 4 NLRB V. AMPERSAND PUBLISHING The panel concurrently filed a memorandum disposition rejecting the employer’s remaining objections to the compliance order.
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