International Union of Elec., Radio and Mach. Workers, AFL-CIO v. N.L.R.B., AFL-CI

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before TAMM, MacKINNON and ROBB; MacKINNON; Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY; Statement of BAZELON, Chief Judge, as to why he voted to deny rehearing en banc in which WRIGHT and R
• Citation: 502 F.2d 349,163 U.S.App.D.C. 347
• Parties: 86 L.R.R.M. (BNA) 2093, 87 L.R.R.M. (BNA) 2255, 163 U.S.App.D.C. 347, 73 Lab.Cas. P 14,482, 74 Lab.Cas. P 10,280 INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Tiidee Products, Inc., Intervenor(two cases). TIIDEE PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Electrical, Radio and Machine Workers,ntervenor (two cases).
• Docket Number: Nos. 72-1080,AFL-CI,P,72-1365,72-1692,I,72-1691,s. 72-1080
• Decision Date: 29 August 1974

Page 349

502 F.2d 349 86 L.R.R.M. (BNA) 2093, 87 L.R.R.M. (BNA) 2255,
163 U.S.App.D.C. 347, 73 Lab.Cas. P 14,482,
74 Lab.Cas. P 10,280 INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE
WORKERS, AFL-CIO, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent, Tiidee Products,
Inc., Intervenor(two cases).
TIIDEE PRODUCTS, INC., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent, International
Union of Electrical, Radio and Machine Workers,
AFL-CIO, Intervenor (two cases). Nos. 72-1080, 72-1365, 72-1691, 72-1692. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 24, 1973.
April 25, 1974
Certiorari Denied May 28, 1974
Rehearing and Rehearing En Banc Denied Aug. 29, 1974.
See 94 S.Ct. 2629

Page 350

Ruth Weyand, Washington D.C., with whom Winn Newman and Melvin Warshaw, Washington, D.C., were on the brief, for petitioner in Nos. 72-1080 and 72-1365 and Intervenor in Nos. 72-1691 and 72-1692.

Lawrence M. Cohen, Chicago, Ill., with whom Roy E. Browne, Akron, Ohio, was on the brief, for petitioner in Nos. 72-1691 and 72-1692 and Intervenor in Nos. 72-1080 and 72-1365. Alan Raywid, Washington, D.C., also entered an appearance for Tiidee Products, Inc.

William H. DuRoss, III, Atty. National Labor Relations Board, with whom Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., National Labor Relations Board, were on the brief, for respondent.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

MacKINNON, Circuit Judge:

In these consolidated cases we are called upon to review ¹ supplemental decisions and amended orders of the National Labor Relations Board (the Board) entered pursuant to our remands in Tiidee I ² and Tiidee II. ³ The facts of these cases are fully stated in the prior Board ⁴ and court decisions. The remands in Tiidee I and II were based upon the contention of the International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union) that extraordinary affirmative relief was required to undo the effects of what the court termed Tiidee Products, Inc.'s (the Company) flagrant refusals to bargain, and its subsequently frivolous litigation. ⁵ The Board's orders here under review provide certain additional relief requested by the Union, but do not go as far as the Union would have them. As modified by this opinion, the Board's orders will be enforced.

I

In Tiidee I this court held that the Company violated section 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. 158(a)(5) (1970), by what the majority opinion variously characterized as a 'brazen refusal to bargain,' a 'manifestly unjustifiable refusal to bargain' and a 'clear and flagrant violation of the law.' ⁶ It then attempted to defend its action before the trial examiner and the Board ⁷ on the basis of what the Tiidee I court found to be a violation of the express terms of the Agreement for Consent Election and

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'patently frivolous' ⁸ objections to the election by which the Union had obtained certification as the exclusive bargaining representative of the unit employees.

The relief ordered in the original Board proceedings in light of the section 8(a)(5) and other unfair labor practices included a broad cease and desist order, and required the Company to post appropriate notices, bargain collectively with the Union upon request, furnish the Union with certain requested information on current wages and fringe benefits, and reinstate with back pay employees laid off and discharged because of their union activities. These conventional remedies were found by the Tiidee I court to be an inadequate means of insuring meaningful bargaining and to reward ⁹ unjustly the Company for its illegal actions during the delay of litigation and enforcement of the Board's orders. The case was thus remanded to the Board for further consideration of the Union's make-whole claim and other additional or alternative forms of relief. Tiidee II involved further section 8(a)(5) violations, as well as other unfair labor practices, and again the case was remanded for further consideration of more appropriate remedies in light of the Tiidee I decision.

In the supplemental decisions and orders here under review, entered under the compulsion of our prior decisions, the Board finally ordered some additional affirmative remedies for the section 8(a)(5) violations in both Tiidee I and II but again declined to order any broad make-whole relief. The Board thus denied payment to employees for the difference between wages and benefits actually received and what the Union contended they would have received had the Company bargained in good faith to agreement on a contract with the Union. Similarly, the Board denied the Union's request that it be reimbursed for allegedly 'lost' dues and fees, and organizational expenses. The Board did, however, order the Company to reimburse the Board and the Union for all litigation expenses, including attorney fees, in connection with the section 8(a)(5) issues in both Tiidee I and II. ¹⁰

Additionally, the Company was ordered to mail copies of the Board's posted notices to the home of each employee in the bargaining unit, permit Union access to the Company's bulletin boards and other places where notices to employees are posted so it could post Union notices and other literature during the ensuing period of contract negotiations, and furnish the Union with a list of names and addresses of its employees and keep the list current for a period of one year. As to these latter affirmative actions required of the Company, we fully agree with the Board's finding that they are necessary and appropriate to guarantee that rights conferred by section 7 will not be denied. ¹¹

II

In the supplemental proceedings in both Tiidee I and II, the Board ordered the Company to 'pay to the Board and the Union the costs and expenses incurred by them in the investigation, preparation, presentation, and conduct of these cases before the National

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Labor Relations Board and the courts . . ..' ¹² Apparently the Board ordered this remedy in response to the Tiidee I court's suggestion that

the scope of the Board's consideration on remand, if it is deemed that the Union's proposal goes too far, would include consideration of such lesser, alternative remedies as an award to the Union . . . for the costs of having to litigate a frivolous case . . .. ¹³

The Company vigorously contests the power of the NLRB to order the award of attorney fees and other litigation expenses to the Board and the Union, but that issue was recently settled in this circuit in Food Store Employees Union, Local No. 347 Amalgamated meat Cutters v. NLRB, 155 U.S.App.D.C. 101, 476 F.2d 546, cert. granted, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973), which held that the Board does have the power in appropriate cases to order such a remedy. ^*13 Thus Food Store in large

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measure controls our disposition of that issue in this case.

Food Store involved "clearly aggravated and pervasive' misconduct (by the employer, and the Board) questioned (the employer's) good faith because of its 'flagrant repetition of conduct previously found unlawful' at other (of its) stores.' ¹⁴ The premise for sustaining the award of litigation expenses in Food Store was that

employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of making good the legal expenses to which they have put the charging parties and the Board. ¹⁵

As stated above we do not write today on a clean slate but are bound as to the law by Food Store. That being so, we are led inexorably to the conclusion that if the facts of Food Store presented an appropriate case for the award of attorney fees, then, a fortiori, the instant case does also. ¹⁶ The element of frivolous litigation, as the Tiidee I court decided exists in this case, presents a different and even stronger situation for awarding litigation expenses if the payment of attorney fees can be ordered paid for flagrant repetition of conduct violative of the National Labor Relations Act. The court's finding in Tiidee I that, on the facts presented, the Company had engaged in frivolous litigation constitutes the law of this case. ^**6 The

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court's articulation of that finding is a harsh litany: the Company's conduct 'was a clear and flagrant violation of the law'; /17/ 'its objections to the election were patently frivolous'; /18/ the Company's action was 'a brazen refusal to bargain, in violation of solemn obligations'; /19/ its position was 'palpably without merit'; /20/ and the case involved 'a manifestly unjustifiable refusal to bargain.' / 21/ In light of the precedent established by Food Store and of the court's decision in Tiidee I as to the law and the facts, stare decisis and the law of the case leave us no recourse but to enforce at least in part the Board's award to the Union of attorney fees and litigation expenses.

III

Difficulties remain, however, as to the manner in which the Food Store and Tiidee decisions may be accommodated with our view of the Board's or

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ders in this case. Two significant issues, therefore, must be confronted. First, whether the Board itself should be reimbursed for its expenditures in litigating this case, and second, whether legal expenses during the full course of this litigation should be allowed. We answer both in the negative.

A. Reimbursement to the Board

Any remedy ordered by the Board under section 10(c) must satisfy the ultimate standard that it is designed both in intent and operation to effectuate the policies of the National Labor Relations Act. Three rationalizations may be advanced to support the proposition that the imposition of attorney fees and other legal expenses in cases of frivolous litigation effectuates the policies of...